The European Union will advise EU leaders that delaying Brexit makes sense only in three scenarios: to give more time to prepare for no-deal, to complete ratification of the withdrawal agreement, or if the UK decides to hold an election or a referendum.
The assessment is contained in an internal memo, seen by BuzzFeed News, which sets out the thinking at the highest level of the European Commission following Theresa May’s heavy defeat on her revised Brexit deal in parliament last night. European ambassadors were briefed on the contents of the assessment on Wednesday morning.
A short extension would be easy, and preferable. A long extension would be far more complicated and thorny. However, it may become inevitable given the depth and unpredictability of the chaos in the UK. Ultimately, it will be a political decision for the EU’s 27 leaders.
On Wednesday evening, MPs will vote on whether to leave the EU with no-deal. If, as expected, they reject this option, there will be a vote on Thursday on extending Article 50, the framework that sets out the two-year process for the UK’s departure from the EU that is due to end on March 29.
“An extension makes only sense in three circumstances,” the memo reads.
For each of the three scenarios, the memo includes the political and legal considerations that EU leaders should take into account when they meet in Brussels next week for a European Council summit, where they are expected to consider any request from the UK for an extension.
Under the suggestion that the EU leaders could agree to more time to prepare for no-deal, the memo states that the EU has prepared since December 2017 for no-deal on March 29. “We are prepared, why should we give more time, this would create a de facto transition period,” the memo goes on to say.
Senior EU officials also believe that article 50 could be extended for “political reasons”, specifically if the UK asked for time to organise a general election or a referendum.
The memo warns, however, that in both these cases it is unclear what would be solved, and that a short — three- to four-month — extension would be insufficient. “The UK would have to organise EP [European Parliament] elections, it adds.
The European Commission view is that an extension beyond May, without the UK taking part in EU elections, could disrupt the functioning of the EU’s institutions. EU leaders should consider this carefully, but it is ultimately a political decision for member states.
A diplomat from a major EU member state told BuzzFeed that the 27 would probably have to agree to any request from the UK asking for the time needed to hold a general election or a referendum, for fear of otherwise being seen to interfere in domestic British politics.
Several European politicians and ministers have openly called for a new vote on Brexit, hoping that the decision made by British voters in 2016 can be reversed.
Privately, however, a number of leaders, including Angela Merkel, believe a new vote will not solve much, a source with knowledge of the German chancellor’s thinking told BuzzFeed News.
The chancellor is of the view that a second referendum would create new uncertainty: nobody knows how it would end, Leave could win again, while a close Remain victory would leave Brexit voters feeling robbed, and could even see “yellow vest” type unrest in the UK.
Merkel is also concerned that a referendum campaign would ask the EU27 “to give something” to the UK, reopening old debates on restricting freedom of movement, which she doesn’t want to have again.
“Brexit has to happen. Then in 10, 20 years, a new generation may want to rejoin,” the source said. “In the meantime, it’s important to have a ‘as close as possible relationship’ on everything.”
The third scenario outlined in the note is “to complete the ratification process”. The memo says bluntly: “We are not in this scenario.”
The note makes clear that multiple short extensions should be avoided “at all cost”. “This would prolong uncertainty, would de facto create a transition period, reduce the value of the EU’s no deal preparations and endanger the political and institutional functioning of the EU at a time where it needs to be united and capable to act more than ever before.”
Multiple officials BuzzFeed News has spoken to in Brussels and elsewhere in Europe over recent weeks have all described multiple or rolling short extensions as the worst-case scenario, citing both uncertainty to business and domestic political pressure in the 27 capitals.
Some officials even predict that the 27 could go as far as making clear that any delay would be a one-off, barring exceptional and specific scenarios such as MPs voting for the deal during the extension period, and parliament then needing a bit more time to complete its legislative process.
With just 16 days until Brexit, most politicians and officials in the UK and the rest of Europe are for once on the same page: Some form of delay to Brexit is all but inevitable.
An extension beyond the beginning of July, when the new European Parliament sits, is fraught with legal and political difficulties, officials and diplomats say.
“May [when European elections are held] is not a problem. End of June is doable. Beyond July is possible, but it depends,” said a senior European government official.
But based on recent form, a short delay may not provide enough time to sort out the disarray in Westminster. UK MPs would need to find a way to put together what so far has eluded parliament: a majority in favour of something workable.
The EU’s 27 leaders, meanwhile, will be faced with one of the most intricate political decisions of the past two years. “It’s an existential question,” a top EU official said.
Some of the most senior officials in Brussels believe a longer extension will be inevitable because an impasse caused at its heart by two years of chaos in Westminster cannot be untangled in just a few weeks or a couple of months.
“A long extension is increasingly likely,” one said.
But the decision will ultimately be one for the 27 political leaders, an EU27 diplomat said — and, the diplomat added, “Throughout this process, EU leaders have taken a tougher stance than officials and negotiators in Brussels.”
The diplomat described as “spin” recent headlines in the UK that the EU would want to delay Brexit into the 2020s.
The discussion over extending Article 50 between Europe’s capitals has barely started. While all leaders are keen to find a balance between avoiding both a no-deal and prolonged uncertainty, they have differing views on how to achieve this. The terms they will set for prolonging Brexit, coupled with a reason and proposed length, will be above all a political decision.
“Brexit has already cast a dark shadow over Europe. What we don’t want is for that shadow to be extended for two more years. Something would need to happen,” a senior government official from a major European capital told BuzzFeed News last week.
The first step to extending Article 50 would likely need to be a request from the UK, sources said. Michel Barnier, the EU’s chief Brexit negotiator, would also be expected to share his views with the 27 leaders.
“His [Barnier] recommendations will be important,” said a senior official with knowledge of previous conversations between the Brexit negotiator and the 27 leaders. “They trust him. He was key in explaining to leaders why Chequers wouldn’t work, and how it would undermine the integrity of the single market,” the official explained.
The 27 leaders’ decision will be determined by the length and reason requested by Britain for the delay. What happens in the UK parliament ahead of next week’s a European Council meeting of EU heads of government and state, which will take place in Brussels next week, will be crucial.
Asked for a specific example on what might help ratification of the agreement, a senior diplomat explained that the UK could ask for time to hold indicative votes on the future UK–EU relationship or find a consensus around a customs union. “If [the extension is] too short, the likelihood these issues are solvable is low based on the experience of the ‘meaningful vote’.”
The diplomat explained that if the UK provided such commitments the EU could respond with further commitments, including on the backstop — the insurance policy that guarantees that there can be no hard border between the Republic of Ireland and Northern Ireland in all circumstances — and the withdrawal agreement could be approved and ratified by parliament on the basis of these commitments.
Although there are differing legal views on the details and timing of a vote, officials and legal experts believe that the UK would need to commit to holding an EU election if it is still a member of the Union once the new European parliament is constituted.
“The elections are an issue, and it would end up at the ECJ [European Court of Justice] for sure if the UK doesn’t hold them,” said a diplomat.
Jean-Claude Piris, the former director general of the European Council’s legal service, told BuzzFeed News: “If there is an extension beyond June, I think the EU would remind the government of its legal obligation to organise European Parliament elections in the UK as soon as possible.
“The question is whether the EU would preemptively make that demand now as a condition to extend until June, or at a later date should there be a request for a further extension. This will depend on whether the EU thinks that the European Parliament’s decisions might be considered invalid or not, without UK representation and participation while the UK is still a member of the EU.”
Piris added that his personal legal opinion was that the European Parliament could legally continue to work and its decisions would still legally be valid if an extension went into July.
“However, if the situation continues for a long period [the UK would have to hold elections], and if there is a long extension, the UK would have to participate in May’s elections,” he said.
In his statement announcing an agreement with May in Strasbourg on Monday, EU Commission president Jean-Claude Juncker wrote that should the UK have not left the EU by May’s elections, it would legally be required to hold the vote.
Beyond the legal conundrum, it is the political calculation that officials say will in the end define the EU27 position.
Any decision will have to be balanced with the concern of seeing scores of eurosceptic MEPs in the mould of Nigel Farage getting elected to the next European Parliament, or the very possible prospect of dealing with a future prime minister Boris Johnson disrupting the work of the Union as it tries to focus on its many priorities, other than Brexit.
A long extension would also “destroy” the structure of negotiations, which has seen talks sequenced with divorce proceedings dealt with before the future relationship, said an official. “It could also provide the UK with better terms than the transition,” the official added, pointing to a recent article published on the ConservativeHome website by the ERG’s go-to legal advisor.
Although a delay would allow to further mitigate against the effects of no-deal, officials say, they are adamant that prolonging Article 50 doesn’t take the possibility of the UK leaving the EU in a disorderly way off the table. Indeed, more time changes little if MPs don’t eventually back the deal agreed with the EU.
“It postpones the cliff edge,” said a senior EU official. “No-deal chances are still alive.”
The memo concludes saying that if the UK does not get an extension, preventing no-deal is still in the hands of the UK. MPs can approve the deal in a third vote before March 29, and ask for a short extension until May’s election.
“This could be decided politically and conditionally by leaders on 21/22 March and then implemented by written procedure on 28 March,” the note reads.
Or, Britain could revoke article 50 by notifying the EU before March 29, the short document concludes.