If the United Kingdom chose to apply for a delay to Article 50, must they set a new (target) date in order to do so? Or could the UK suspend postpone Article 50 until further notice / indefinitely, without setting any new date? My question is from a legal point of view; whether the EU-27 would agree with such a move, even if possible, is a separate question.
-
2It's worth noting that we shouldn't talk of "delaying Article 50", "suspending Article 50", "revoking Article 50", etc. This choice of wording seems to be common throughout the media, but is incorrect. Article 50 is an article in the Treaty on European Union. To modify the article itself would require unanimous agreement amongst the treaty signatories, and is typically not the meaning intended by those that use these phrases. Instead we should talk of delaying/suspending/revoking etc. the notice that the UK gave in accordance with Article 50.– JBentleyCommented Jan 21, 2019 at 15:12
-
On another note, since this is a legal question, would it not be better placed on law.stackexchange.com?– JBentleyCommented Jan 21, 2019 at 15:13
Add a comment
|
2 Answers
The UK cannot suspend her Article 50 notification. It can merely retract the notification and that would have to be in good faith, i.e. with the intention to stay for the foreseeable future. So a retraction has no new set date.
The UK and EU27, acting unanimously, can extend the negotiation period as long as they like. I'm not aware of any rule that would force them to set a date. Note that this requires unanimity, while accepting a withdrawal agreement merely requires a qualified majority.
Article 50 was mostly written with the intention of never using it, so it is rather sketchy on details. Where beyond the article itself would one look for clarification? 50 (2) references TFEU, 50 (3) does not.
As I understand it:
- Acting alone, the UK can:
Decide to Remain before March 29th.
Force a hard Brexit (i.e. no deal) on March 29th. - A sufficient minority of the EU27 can:
Prevent any deal, leaving the UK the choice between Remain and hard Brexit. - The UK and a qualified majority of the EU27 can:
Make a deal for a soft Brexit on or before March 29th.
Agree on a hard Brexit before March 29th (not that anybody wants that). - The UK and all of the EU27 can:
Set a date later than March 29th for the default hard Brexit, and keep negotiating for any of the other options. I believe they could also set no date and keep negotiating.
Follow-up: The BBC also writes that Article 50 can't be paused, only revoked or extended.
-
2This may be an English language question, but what is the difference between "suspend" and "extend without a date"?– gerritCommented Jan 20, 2019 at 12:49
-
9@gerrit, as I understand it "suspending" Article 50 would suspend the Brexit negotiations, which is clearly not the intention of anybody in the UK but the Remainer minority. Using the process described in 50 (3) to extend the period, with or without a specific date, would keep Article 50 and the negotiations open.– o.m.Commented Jan 20, 2019 at 12:59
-
1Aha. I clearly meant an indefinite extension, I will clarify the question.– gerritCommented Jan 20, 2019 at 13:26
-
4In your summary, you mean "soft brexit" = "brexit with a deal", and "hard brexit" = "brexit without a deal"? I'm asking because 3 years ago, a Brexit deal where the UK would leave Customs Union and Single Market would have been called a "hard Brexit".– gerritCommented Jan 20, 2019 at 15:54
-
2It's worth noting that we shouldn't talk of "delaying Article 50", "suspending Article 50", "revoking Article 50", etc. This choice of wording seems to be common throughout the media, but is incorrect. Article 50 is an article in the Treaty on European Union. To modify the article itself would require unanimous agreement amongst the treaty signatories, and is typically not the meaning intended by those that use these phrases. Instead we should talk of delaying/suspending/revoking etc. the notice that the UK gave in accordance with Article 50– JBentleyCommented Jan 21, 2019 at 15:13
Article 50, Paragraph 3 of the Treaty of the European Union states (emphasis mine):
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.
As the Treaty is silent on the requirement for any end date, it can be assumed that the Treaty allows for an indefinite extension, provided unanimous consent is given.
Furthermore, there is no mechanism for the UK to unilaterally "suspend" its exit from the European Union. The European Court of Justice ruled last month that the UK can unilaterally revoke its notice of intention to leave "in an unequivocal and unconditional manner"; in other words, without intending to send another such notification in the imminent future.
Additionally, it must be noted that the date and time of withdrawal is currently coded into UK law. Before any request for extension can be legally made, the European Union (Withdrawal) Act will need to be amended by the UK Parliament to allow for a different date.
-
2Re changing the date and time: if that changes (by agreement between the UK and EU), section 20(4) of the Act allows the government to change the date in the Act to match the new one (subject to approval by both houses of Parliament - Schedule 7, Part 2, section 14 of the Act). Commented Jan 20, 2019 at 18:52
-
It seems to me like there's no functional difference between requiring an end date on an extension or not. If a date is required, just pick "31 December 9999" and you effectively have an indefinite extension anyway. Commented Jan 21, 2019 at 12:36
-
1@AndrzejDoyle chances are at least one member state will object to making such long commitments. Since support must be unanimous, that would mean it wouldn't get extended.– JJJ ♦Commented Jan 23, 2019 at 4:39
-
@JJJ Likely true - but my point was that it's moot whether the Treaty allows for indefinite extensions or not. If a member state would object to a 9999 end date, they'd equally object to an indefinite extension as both are equivalent. Commented Jan 24, 2019 at 13:10