48 hours before no-deal Brexit, European Council gives UK an extension to Oct. 31

European Council President Donald Tusk and British Prime Minister Theresa May at yesterday’s European Council meeting.
Thursday, April 11, 2019

After a marathon meeting that began at 6 p.m. Wednesday and concluded at 1 a.m. Thursday, less than 48 hours before the United Kingdom, having failed to approve the withdrawal agreement and political declaration on the future relationship it negotiated with the EU, was scheduled to go over the cliff edge in the “hardest” possible Brexit, the European Council agreed to  grant another extension, to Oct. 31, of the date on which, in the absence of an approved agreement and declaration, it will leave the EU.

The meeting lasted as long as it did largely because President Emmanuel Macron of France, supported by a few other leaders, persisted in demanding that the UK receive no more than a short extension and that it not be allowed to appoint a member of the new Commission that will take office on Nov. 1. Arrayed against Macron and the others were Chancellor Angela Merkel of Germany, the fulcrum of common sense in the Council; the Irish Taoiseach, Leo Varadkar, whose country is, aside from the UK, the one that would have been most harmed by a no-deal Brexit and who, for that reason, strongly supported a long extension; European Council President Donald Tusk and most of the other leaders who, like Merkel, Varadkar and Tusk, preferred a longer extension either to the end of 2019 or to March 2020. But Article 50 of the EU treaty stipulates that any extension requires the unanimous approval of the European Council, so Macron’s stubborn persistence, largely for domestic political purposes – thanks to the gilets jaunes, he’s had a hard winter — eventually resulted in a shorter-than-hoped-for extension to Oct. 31, the day before the new Commission will take office.

In its Conclusions, the Council agreed the extension would last only as long as necessary to allow for ratification of the withdrawal agreement. If the agreement is ratified before Oct. 31, the withdrawal will take place on the first day of the following month. The Council attached several conditions to the extension: If the UK has not ratified the agreement by May 22, it must hold the elections for the European Parliament scheduled in the UK for May 23. If it does not, the withdrawal will take place on June 1, with or without an approved agreement. It reiterated once again, as it has many times over the past several months, that the withdrawal agreement can’t be reopened for negotiation. Likewise, it said the extension can’t be used to start negotiations on the future relationship, although it did say that if the position of the UK in regard to the future relationship were to “evolve” — i.e., if it dropped any, some, or all of its “red lines” — the Council would be prepared to reconsider the non-binding political declaration on the framework of the future relationship. The Council noted that, as long as the UK continues to be a member state, it will enjoy the full rights and obligations of a member state. But it also noted the UK’s commitment that it will act in a “constructive and responsible manner throughout the extension in accordance with the duty of sincere cooperation…in a manner that reflects its situation as a withdrawing member state.” Finally, the Council noted that it will review whatever progress is made over the next several months at its June meeting.

No doubt many British and European citizens, like many seasoned observers, will be perplexed that, only three weeks after Prime Minister Theresa May requested an extension of the Brexit date from Mar. 29 to June 30 and the European Council responded by granting an extension of only two weeks, to April 12, and after the prime minister again requested an extension to June 30 after the House of Commons rejected the agreement for the third time, the Council instead granted a longer extension, to Oct. 31. But there was, as Tusk said in his invitation letter to the 27 heads of state and government who constitute the Council in its Article 50 format, a good reason for the longer extension: The EU’s experience thus far, he said, coupled with the deep divisions within the House of Commons, “give us little reason to believe that the ratification process can be completed by the end of June.” Granting an extension to June 30, would “increase the risk of a rolling series of short extensions and emergency summits, creating new cliff-edge dates” that would “almost certainly overshadow the business of the EU27 in the months ahead.” And it would, he said, increase the risk of an inadvertent no-deal exit.

Tusk was being diplomatic in alluding only briefly and without elaboration to “deep divisions” within the House of Commons. There are, of course, “deep divisions” within the House between the parties and, most notably, between the government and the opposition, exemplified by the arrangement of the benches in the House on which the government and opposition sit in close proximity, facing each other and, more often than not, berating those on the other side. But the deepest division within the House, and the one that has made it impossible thus far for it to approve the withdrawal agreement, is not the division between the Conservative and Labour parties, as deep as that division is, but, rather, the division that exists within the governing party.

On Jan. 15, the House rejected the withdrawal agreement and political declaration on the framework of the future relationship by a vote of 432 to 202 — the largest defeat ever suffered by a sitting government in British parliamentary history and one that was entirely the result of defections from the governing party and its sometime-partner in a “confidence and supply arrangement” designed to give the minority government a working majority in the House. 118 Conservative MPs along with the 10 MPs of the Democratic Unionist Party of Northern Ireland voted against the agreement and declaration; had they voted in favor, the agreement and declaration would have been approved. On Mar. 12, the House voted again on the agreement and declaration and again it rejected them, by a vote of 391 to 242. 75 Conservative MPs along with the 10 DUP MPs voted against the agreement; had they voted in favor, the agreement and declaration would have been approved.

On Mar. 20, after John Bercow, the Speaker of the House, ruled it couldn’t vote for a third time on the agreement and declaration because there had not been a substantial change in the motion, Theresa May wrote to Tusk and requested that, at its meeting the next day, the European Council formally approve the documents — a legally-binding Joint Instrument conveying the UK’s and EU’s shared understanding of the provisions of the withdrawal agreement and a Joint Statement supplementing the declaration — she and Commission President Jean-Claude Juncker had agreed in Strasbourg on Mar. 11 so she could claim there was a substantial change and bring the agreement forward for another vote. She also requested that, in the event the speaker approved a third vote and the House approved the agreement, the EU extend the exit date to June 30.

At its Mar. 21 meeting, the European Council approved the documents and formalized its approval in a legally-binding decision. It agreed that if the withdrawal agreement were approved by Mar. 29, the original Brexit date, that date would be extended to May 22, the day before the UK was scheduled to participate in the European Parliament elections. But if the agreement wasn’t approved by Mar. 29, the exit date would be extended only to April 12 and the Council would expect the UK to “indicate a way forward” before that date for its consideration. In remarks following the meeting, Tusk said if the withdrawal agreement wasn’t approved by Mar. 29, the UK would still have the option of a “long extension” — provided it decided by the April 12 deadline for deciding that it would participate in the European Parliament elections.  

On Mar. 29, after the Speaker agreed that, because of the decision and timetable adopted by the European Council, a motion to approve the withdrawal agreement could be put before the House for another vote, the House again rejected it, this time by a vote of 344 to 286. Thirty-four Conservative MPs along with the 10 DUP MPs voted against it; had they voted in favor, the agreement would have been approved. Immediately after that vote, Tusk called yesterday’s emergency meeting of the European Council in its Article 50 format.

Last Tuesday, after the agreement had been rejected by the House for the third time, two rounds of “indicative voting” had failed to produce a majority for any alternative option, and the cabinet had debated for seven hours — at times heatedly — what to do, the prime minister announced the UK would need another extension of the Article 50 deadline beyond April 12 — “one that is as short as possible and which ends when we pass a deal.” She also announced that, in order to break the parliamentary impasse, she was offering to sit down with Jeremy Corbyn, the Leader of the Labour Party, and try to agree on a plan to ensure the UK would leave the EU with a deal.

The ideal outcome, she said, would be agreement on an approach in regard to the future relationship between the EU and UK that she and Corbyn could put to the House for its approval and which she could then take to yesterday’s European Council meeting. If they failed to agree on a single unified approach, she proposed that they agree on a number of options for the future relationship that could be put to the House in a series of votes to determine which course to pursue. The government, she said, would abide by the decision of the House and would then bring forward, under an agreed timetable, the withdrawal bill to ensure that it was approved prior to May 22 so the UK would not need to participate in the European Parliamentary elections.

EU officials and others who had been calling for some time for cross-party cooperation in the House to approve the agreement and declaration were delighted by the prime minister’s announcement. But needless to say, it provoked outrage from the hardline Brexiters on the Tory backbenches. It was bad enough that the prime minister had refused to leave the EU without an approved agreement on the original Brexit date of Mar. 29 and had already asked for and obtained an extension. It was worse that she was now asking for a second extension and, worse still, that she had agreed, at least implicitly, that the UK would participate in the European Parliament elections if the agreement had not been approved by May 22. And it was worst of all that she had offered to hold talks Jeremy Corbyn, the leader of the Labour Party.

In the wake of the prime minister’s announcement, some of the Conservative backbenchers sought to have their 1922 Committee call another vote of no-confidence in her leadership of the party and government, but they had already called for a vote in December and party rules prohibited a second such vote in less than a year. And the opposition to Theresa May’s leadership was not confined to the backbenches; as commentators predicted her imminent departure as party leader and prime minister, any number of current and former ministers — more than 20 ministers have resigned from her government over Brexit-related decisions – let it be known that they would be available to lead the party and country if and when she was deposed.

In response to the prime minister’s proposal, Corbyn immediately said he would be “very happy” to participate in the talks. They met last Wednesday and agreed on a “programme of work” to find a way forward. After the meeting, a spokesman for the prime minister said both sides were “showing flexibility” and shared “a commitment to bring the current Brexit uncertainty to a close.” Corbyn, for his part, said the meeting was “useful but inconclusive,” although he noted the prime minister’s position had not changed as much as he had expected. Last Thursday, the Labour team, headed by Sir Keir Starmer, the shadow Secretary of State for Exiting the EU, met with the government team, headed by Cabinet Minister David Lidington, the de facto deputy prime minister, for more than four hours of “detailed and productive technical talks,” after which Sir Keir said there would be further talks.

After an exchange of letters between Starmer and Lidington on Friday, it appeared the talks might be in danger of stalling. Starmer, for his part, said that, while Labour wanted the talks to continue, the government had been unwilling to consider any changes in the wording of the political declaration on the framework for the future relationship in regard to such matters as a customs arrangement, workers’ rights and environmental standards. As the shadow Secretary of State for Exiting the EU, he has been a forceful advocate for Labour’s preferred future relationship with the EU — a permanent and comprehensive customs union and access to, and dynamic regulatory alignment with, the Single Market — in short, a “soft” Brexit that would, of course, be precluded by Theresa May’s “red lines” — her insistence that the UK be able to formulate its own trade policy, limit the free movement of EU citizens into the UK, and not be subject to the regulatory authority of the Commission and judicial authority of the European Court of Justice. Lidington, for his part, proposed that the two sides agree on a separate memorandum outlining the issues Labour had raised rather than attempt to renegotiate the text of the 26-page declaration.

As those talks went on, last Friday the prime minister wrote to Tusk again to inform him of developments since the Council’s Mar. 21 meeting, including her meeting with Corbyn and their agreement to continue discussions, and to request a further extension of the Article 50 period to June 30. Acknowledging the Council’s view that if the UK were still a member state of the EU on May 23 it would have a legal obligation to hold the European Parliament elections that day, she informed him the government was undertaking the required preparations for the elections, although its objective was to ensure that the discussions with the Opposition would enable the agreement to be approved and brought into force prior to the elections.

Last night at 1 a.m., the Council responded to the prime minister’s request. And today, as a new Brexit clock began its long countdown to Oct. 31, the talks between the government and Labour about the UK’s future relationship with the EU continued, and Europe and the world wondered whether the prime minister, her political authority within her party so badly damaged by the protracted battle to win approval of the withdrawal agreement and political declaration, can remain in office and, with the support of Labour, lead the UK out of Europe.

David R. Cameron is a professor of political science and the director of the MacMillan Center’s Program in European Union Studies.