Political divisions at Westminster over the UK's divorce agreement with the EU has brought the possibility of delaying bringing Brexit into play in order to avoid a costly no-deal scenario.
British prime minster Theresa May said this week she still wanted the UK to exit on March 29th, but Labour's shadow Brexit secretary Keir Starmer has said an extension of the article 50 withdrawal "may well be inevitable now given the position we are in".
As the Brexit clock ticks down with no clear UK parliamentary majority for the divorce deal or an alternative, other options may inevitably surface to buy the British more time to resolve the crisis.
Delaying Brexit
The Brexit process under article 50 of the Lisbon Treaty can be extended for a specified period of time, but only if each and every one of the other 27 EU member states agree. That might not be so easy given the frustration that some in Europe feel over political indecisiveness in London around the UK's departure and, for pro-Brexit MPs, the terms of the exit.
"A lot of the countries are very bored of Brexit. I think they would extend if the UK needed a few more weeks to pass an act, but they are not going to extend just because Britain hasn't made up its mind yet and is showing that it is not going to make up its mind," said Ronan McCrea, professor of constitutional and European law at University College London.
It is open to question as to whether EU member states might see to apply conditions to an extension and permit a delay in Brexit only in certain circumstances.
"Would they just grant it or would they need to have some guarantees that the UK was trying to buy time to get its act together?" said Catherine Barnard, EU law professor at University of Cambridge.
Providing more time for the UK parliament to pass the withdrawal and implementation bill to allow Brexit to happen might be the most straightforward and uncontroversial reason for an extension.
There may, however, be restrictions on the amount of time the EU would allow. A complicating factor is that the European Parliament elections take place on May 23rd, so the EU would likely prefer the UK to be out by that date to avoid the British voting for MEPs who will not be there for very long.
"It is legally possible but politically it is rather awkward to contemplate a process of having an election with the UK still a member. I think there might be great political reluctance to extend beyond that date," said Steve Peers, professor of European Union law at the University of Essex.
There may also be some question on the process of extending article 50. Peers say May has the power under the UK’s withdrawal act to change the exit date “but some might dispute that”.
The EU could permit a delay in Brexit to allow for a general election as Labour leader Jeremy Corbyn called for yesterday in order to break the deadlock over Brexit.
“I think the EU would grant extension for a ‘democratic act’ such as an election,” said Barnard. “I think it is much less likely they will grant an extension just to allow the UK time to decide what it wants to do or to deal with splits in the cabinet.”
Revoking Brexit
The European Court of Justice (ECJ) ruled last month that the UK can cancel Brexit unilaterally without seeking the permission of the other 27 EU member states and remain in the EU on the same terms. The ruling leaves very narrow conditions in applying for a revocation: it must take place within the two-year Brexit time limit – in other words by March 29th; it must be "unequivocal and unconditional" and the UK must give notice to the European Council in writing. That notice, the ruling says, can only be made after the UK has taken the decision to revoke "in accordance with the constitutional requirements of the member state [the UK]" and following a "democratic process".
“The trouble is we don’t have a written constitution so we don’t know what our constitutional requirement are. I think we would need an act of parliament to revoke article 50,” said Barnard. This may leave the UK parliament in the same position it is in now, but fighting over a revocation of Brexit rather than the withdrawal agreement.
Postponing Brexit
Given that revocation under the ECJ ruling has to be definitive, this may not be the route that the UK parliament would be able to travel if it sought to suspend Brexit to hold a second referendum.
McCrea says the people have “misunderstood” the ECJ “Wightman case” ruling last month. “The UK can revoke [Brexit] to stay in the EU but they cannot revoke to work out more time to leave,” he said.
One of the difficulties with the ruling is that it did not include in its test the formal legal recommendation by the ECJ’s advocate general that application for revocation must be sincere and done in good faith.
In theory there is nothing to stop the UK revoking article 50 to buy more time to consider whether the country really wants Brexit, though McCrea says the court could render the application void if it believes the UK has revoked with the intention of extending, not bringing Brexit to an end.
“The million dollar question about revocation is can we do the hokey pokey – can we revoke, have a think about it for a bit and re-notify if we want Brexit?” said Barnard.
She believes it is possible to consider a scenario where the UK has to cancel Brexit in order to set up some sort of royal commission – “a group of the great and the good” – to work out what the UK actually wants.
“You could imagine where things have gone so pear-shaped you may have to revoke article 50,” she said.
