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Could Article 50 be extended to allow for a second Brexit referendum? (Constitution Unit)


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With increasing speculation about a possible second referendum on Brexit, this is the fifth in a series of posts about the practicalities of such a poll. With ‘exit day’ set for 29 March 2019, Jess Sargeant, Alan Renwick and Meg Russell ask whether the Article 50 period could be extended to allow a referendum to take place, and what the knock-on consequences would be.

In a previous blogpost we concluded that, given the time it would take to hold a new referendum on Brexit, the UK’s exit day of 29 March 2019 would almost certainly need to be delayed. This is legally possible – Article 50, the clause of the EU treaty setting out the process by which member states can leave the EU, makes provision for an extension to the two-year period if agreed unanimously by the UK and the EU27. This post examines whether such an agreement is likely, what difficulties may be encountered should the UK’s leaving date be postponed, and what solutions could be found.

Would the EU be likely to agree an Article 50 extension?

All the indications are that the EU would be willing to agree an Article 50 extension to allow the UK to conduct a democratic process such as a general election or a referendum before Brexit is finalised. If remaining in the EU were an option in the referendum, the 27 might well want to afford the UK the opportunity to change its mind. Even if Remain were not an option, there is a strong argument that the EU would want to honour the democratic principles on which it was founded and not deny sufficient time for the UK electorate to have the chance to vote, provided it felt that the UK was being sincere and not just ‘playing for time’.

Would a UK parliamentary vote be required to extend Article 50?

The parliamentary authorisation for triggering Article 50 came through the EU (Notification of Withdrawal) Act 2018, which resulted from the Supreme Court’s ruling in the Miller case that parliamentary approval was needed for such a change. Subsequently the EU (Withdrawal) Act 2018 has defined exit day as 29 March 2019.

Therefore, it may be the case that parliament would need to consent to any extension of the Article 50 period. Whether or not parliamentary approval is strictly required in law, it would be politically prudent for the government to hold a parliamentary vote to authorise a request to extend Article 50. If there is a majority in parliament for a referendum, there would almost certainly be a majority also for extending the Article 50 window to allow one to take place. Any necessary legislative amendments could be included in the referendum legislation, so this is unlikely to add complexity.

Consequences of extending Article 50

Even if the UK asks for an Article 50 extension, and EU leaders are willing to support this, there are various complications that would flow from such a decision. Since Article 50 was first invoked, the EU27 have been proceeding on the basis that the UK would leave on 29 March 2019. Some changes have been put into effect in the expectation that this would happen, and these would need to be revisited.

The 2019 European Parliament elections

The European Parliament elections are scheduled to take place in all member states between 23 and 26 May 2019. On the assumption that the UK is leaving the EU, arrangements have been made for its seats to be reallocated. But if the UK remains in the EU at the time of the elections, EU treaty requirements would legally oblige the UK to take part. Nonetheless, holding MEP elections would cause problems for both the UK and the EU.

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