There is now a serious prospect of there being an extension of the Article 50 period: that the UK will not leave the EU on 29 March 2019 but on a later date instead.
The likelihood is that such an extension would only be for a few months, until a date before July this year.
So what can be usefully said about this?
Perhaps not a lot, but here are my observations as to the law and policy aspects of such an extension.
Do not take it for granted
First, an extension cannot be taken for granted.
The UK Parliament may still vote for the Deal, or even for a “No Deal” exit. In either case, the UK would still be leaving the EU on 29 March. But even if MPs vote in favour of an extension, the UK’s request is subject to the unanimous consent of the 27 remaining member states. The opposition of just one member state would be enough to prevent an extension. And the remaining member states may impose conditions on an extension.
Unlikely beyond July
Second, any extension (or further extension) beyond July is less likely than likely.
This is in part because there is an obligation on the UK to participate in the new European Parliament elections. But there would also be wider complications, from the start of the new EU budget cycle to the commencement of a new Commission.
A slippage may be significant
Third, there may be a political and psychological consequence of slippage of the date.
A significant amount of political capital has been invested by the Prime Minister and others in Brexit being “delivered” on that date. For the date to now change could bring into questions a wider set of supposed certainties about the departure process. And if delay is conceded in principle, there is no inherent reason why further delays could not be sought (even if EU27 would be unwilling to accept).
Will the extra time be used well?
Fourth, there is the question of what the further period would be used for.
The UK’s current political predicament has lasted since at least December, with the government delaying and pulling votes. Nothing much of substance has changed. If and unless there is a sudden change in the government’s approach to Brexit, there is no reason to believe the next three months will not be more of the same.
Problems delayed but not solved
Fifth, a delay is, of course, not an end in itself.
There are three possible destinations of this Brexit process: exit with a deal, exit without a deal, or revocation.
This will be as true in July as it is now. At some point, one of these will have to be reached. An extension to July does not provide enough time for any fundamental renegotiation of the deal, even if the UK government changes its red lines. And there is also probably not enough time for a fresh referendum, especially if tighter and better provisions for campaigning spending are to be formulated and enacted.
A more substantial delay?
Sixth, there are those who are saying that a substantial extension should be made, either now or in July, of 21 months or so. This is a sensible idea (though Brexit is not known for its adoption of sensible ideas).
This would allow time for the UK to reconsider its position and what it wants out of Brexit, and for the new EU Commission to settle in.
This outcome is unlikely but it cannot be ruled out, as it solves a lot of problems.
UK remains in the EU
Seventh, the UK will remain a member of the EU during any extension period, on the same terms as it is a member now.
This is in contrast to the “Brexit as name only” provisions of the transition arrangements.
Relief will be short-lived
Finally, no rational person wants a No Deal Brexit on 29 March and so any extension is preferable to that outcome.
But extension by itself solves no problem just delays the problems and to an extent reconfigures them with a harder deadline of May, June or July.
The relief of the “essay deadline” extension will be short-lived.
Politics vs policy and law
Whether there is an extension or not will come down to politics, rather than any considered view of law and policy.
But the significance of the extension certainly will be more than just political: a modified legal and policy framework for political action will be in place, and this makes things more uncertain. And so what happens next will be even more unpredictable.
Any extension does not make any particular outcome more likely than not, just harder to forecast.
The author is a senior consultant at Preiskel & Co LLP. For any follow-on queries about brexit, email Brexit@Preiskel.com