Former ECJ judge: a long Article 50 extension would be disastrous

The Brexit referendum was held in June 2016. Yet thirty-three months since the vote, the government has no coherent plan. Parliament has not been able to gather a majority for any strategy. Polarisation has been steadily increasing in wider society. And it is proposed that the EU perpetuate this situation by significantly postponing the Article 50 deadline? A short extension is sensible but to draw the process out for much longer would be a grave error.

Everyone has their share of responsibility in this fiasco. On the British side, with some brilliant exceptions, the political class has been abysmally incompetent. The prime minister set contradictory red lines. Many Conservative personalities are concerned primarily with their own careers. Labour’s position is also incoherent. And after its first set of indicative votes, the House of Commons was still unable to support a solution. Europe is negotiating with a partner which incredibly has still not defined what it wants.

On the European side there is less nonsense, but still there has been hypocrisy. "We did everything we could," the government leaders say hand on heart. It's false. The European Union started the negotiation by saying that it would first negotiate an exit agreement without addressing the future relationship. Then it did the exact opposite, and incorporated provisions on the future into an agreement on the past. Naturally, this pollutes the whole negotiation. The text is legally dubious and the EU could pay hugely for this mistake later. Rather than behaving like pernickety bean counters, they should have focussed on the bigger questions.

What now? A small technical postponement of Article 50, until the end of May or June, creates few problems, and has to be accepted. A big one, from four to 21 months, however, creates many. The first impact will come from the UK’s participation in the European elections. The British seats have already been redistributed to other countries, meaning there would have to be painful adjustments. Brexit will naturally become part of the electoral campaign in all member states, will feed the populist wave, and displace debate about other matters. Additionally, governments could soon find themselves negotiating all current European issues (beginning with the new budget) with someone as trustworthy as prime minister Boris Johnson.

The most painful part of Brexit, however, is the uncertainty, and the damage done to the economy and people’s lives. This stasis has been immensely harmful and a long extension would only make things worse.

Thanks to the constant British paralysis since 2016, costs have steadily increased. Corporations have been left in the dark and had to stockpile massively. On the continent, it was necessary to prepare for the sudden appearance of customs controls at all British borders. All this is now causing considerable expense. Preparation for Brexit has itself become an industry, which weakens all others. To these visible costs, we must now add others such as lost investments and employment. Growth is falling sharply in Europe, say the IMF, the OECD and the ECB. Brexit contributes to this. In addition, four million residents in the EU and the UK, largely forgotten, have lived the last 33 months in fear about their fate. Postponement will not mean a return to normal, but on the contrary an aggravation of these damages.

It cannot go on like this. This uncertainty must stop. People and business in the EU need an operational decision from the UK parliament. There are in reality three possible clear decisions: a) the approval of May’s deal, b) the approval of the Withdrawal Agreement with a revised political declaration, c) a definitive revocation. The other options offer no certainty. An election with two dysfunctional parties will probably not bring closure, and neither will a referendum (which will probably require an election, and certainly a legal process, and which will not be conclusive in the event of a narrow Remain win). Both the UK and EU authorities should beware now the possibility of substantial legal challenges for misadministration. No public authority can keep millions of persons in limbo eternally without any serious reason.

Article 50 has often been criticised for its poor drafting. The two-year deadline however was not created by happenstance. The drafters anticipated—rightly, it seems—that such a negotiation would destabilise the Union. It was thus imperative to limit its length. (Your author was then working with vice president JL Dehaene in the 2002 European Convention). After nearly three years, it is high time to stop this destabilisation. Postponing Article 50 again will bring nothing concrete, and only allow the radicals on both sides to regroup for new fights.

Members of parliament are paid to take responsibility. Those in London should stop behaving like spoiled children and make an adult choice. The best way for the EU to convince them is to warn clearly that without a swift agreement and legislation allowing an exit from the crisis, the cliff edge will become very real. No deal should be prevented if possible, but not at any price. For the EU, better a chaotic ending than endless chaos.