Brexit talks are almost out of time – but is an extension possible?

"The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period." – – Article 50 (3), Lisbon Treaty

Yes, the UK can seek an extension to its EU membership beyond March 31st to facilitate discussions on its stalled Withdrawal Agreement. If, that is, all the member states agree to such an extension.

All this talk in Brussels and London of time running out, of insuperable obstacles like the Irish backstop, and the real possibility of a "no-deal" Brexit has given currency to the idea of an extension.

The Taoiseach and Tánaiste have both suggested in recent days that they would be open to the idea, although London has preferred instead to talk of accelerating or invigorating the talks, as if a reluctant Brussels is responsible for negotiations foot-dragging. Ha!

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Many Brexiteers now say privately, however, that almost any concession by London on the Withdrawal Agreement (WA) – not including a border in the Irish Sea – should be contemplated just to get the UK out of the EU on March 31st. Freedom! So the idea of extending UK membership is likely to be politically toxic in the Tory party.

It would certainly be portrayed as the first step in betraying the Brexit cause, an incremental remain.

Another way of circumventing the backstop roadblock, London would say, would be to kick discussions on it out of the WA framework and into the transition period when the UK will have left the EU but talks on the shape of a future relationship will be getting under way. The Border issue, they have always argued, is more easily resolved in the context of an overall settlement of that relationship.

Breathing space

But seductive as that transition option might be – it was apparently advocated by a Polish minister last week – it remains completely unacceptable to the Irish and EU negotiators. It might appear simply to be another version of the article 50 extension breathing space for talks, but in truth it is a horse of an entirely different colour.

Removing the backstop issue from the WA, which has to be ratified by the member states and the European Parliament, would be necessary for the issue to be kicked forward to transition.

That would represent both a formal repudiation of a key element of the joint accord reached in December between the EU task force and the UK, and, just as importantly, a dangerous backsliding on a previously agreed policy that would inevitably call into question all agreed outcomes in the talks.

The corollary of the principle that “nothing is agreed until everything is agreed” is that the process can also not involve endless renegotiation of settled matters.

Crucially, the separation of the backstop issue from the WA would remove important leverage on the EU side, fatally undermining its ability to safeguard the special position of Northern Ireland. The UK needs a WA to have any prospect of an orderly Brexit and the vital transition. That means it must now, not later, face up to hard choices – notably some controls on the Irish Sea – or lose everything in a painful no-deal, no-transition exit.

Hard choices

That much was again made abundantly clear to the Poles at the ministerial meeting last week when, once again, many member states rallied round the Irish. It is believed that they would not, however, stand in the way of an article 50 extension.

That, however politically unpalatable in London, would simply allow more time for the WA to be agreed, undermining none of the previously made undertakings. And none of the hard choices for the UK.

For the time being, however, London is not asking. Two months of unproductive summer discussions, with an October summit deal in doubt, may well bring a different perspective.