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EPA/Stephanie Lecocq

The terms of the third Brexit extension explained

European Union leaders congratulated themselves on having agreed a second Brexit deal in mid October. But their celebrations were short-lived. Just two days later, the Westminster parliament voted to force Britain’s prime minister, Boris Johnson, into seeking a Brexit extension anyway.

MPs had voted in principle to consider the new withdrawal agreement (WA) but were opposed to the extremely short timeframe they were being offered to scrutinise it.

The remaining 27 member states of the EU have now agreed to an extension of the Article 50 process until January 31 2020. This is the third British request for an extension of the Brexit negotiation process. Former prime minister Theresa May requested the first in March 2019, which ultimately ended up extending the Brexit deadline until April.

Unable to ratify the withdrawal agreement within that time, May again sought another extension. The EU opted for a flexible timeframe, giving the UK a maximum deadline of October 31.

Terms of the extension

The terms of this third Brexit extension are very similar to those of the previous two. It’s a so-called “flextension”, meaning that there is an ultimate deadline of January 31, but the UK can leave before that date if the current withdrawal agreement is ratified earlier.

This third extension has political conditions attached to it as well. These are aimed at protecting the integrity of the EU, its institutions and processes. Therefore the UK is expected to abide by its commitment to sincere cooperation and to act in a constructive and responsible manner. Equally the UK must satisfy its obligations as an EU member state, including the nomination of a candidate for appointment as a member of the European Commission.

In affording a third extension, the EU has confirmed that it will not renegotiate the deal during the extension. This, however, sounds like posturing. The same was said during the second extension but the deal on the table at that time was amended to seek an alternative solution to the Irish border question.

But there are also some key differences between this extension and the last two. It has been requested due to the legal obligations placed on Johnson rather than his acceptance that it is needed. In fact, the British prime minister – in addition to agreeing a much harder version of Brexit than his predecessor – has repeatedly said that he didn’t want an extension and that he would rather take the UK out of the EU without a deal. The latter has not been well received by EU leaders. As the EU’s chief negotiator Michel Barnier put it: “No deal will never be Europe’s choice … it would always be the UK’s choice, not ours.”

Brexit fatigue is more palpable across the EU27 now, so it has been politically more difficult to agree an extension this time around. France has showed even greater reluctance to sign up to the plan than last time, arguing that a much clearer sense of what the extension is for was needed. The December general election appears to have fulfilled France’s demand.

Johnson has put his deal on ice while an election unfolds. EPA

The political situation in the UK is even more fluid than at the time of the two previous extension requests. The ratification of the withdrawal agreement is suspended and a general election will take place on December 12. The EU is a risk-averse organisation and it does not like uncertainty. With a further extension it hopes that, if an election takes place, this will facilitate the ratification of the withdrawal agreement and thus an orderly Brexit can take place. Equally, the EU expects the UK to not alter the letter and the spirit of the withdrawal agreement, and has warned against any attempt to change the agreed text beyond recognition.

What next?

As the Halloween deadline comes and goes, the EU is moving on. Throughout the Brexit process the EU has been always been several steps ahead of the UK government. The European Parliament will scrutinise the withdrawal agreement, as its final consent is needed to ratify it on the EU side. The EU will not start negotiations on the future relationship until the UK leaves, but this does not mean that it cannot get ready.

The EU is already preparing a new taskforce in the European Commission, headed by Barnier, to lead the post-Brexit negotiations with the UK. When Donald Tusk, the outgoing president of the European Council, reminds the British government to make the best use of the additional time afforded by the successive extensions, he is also offering friendly advice to the UK: get ready for the next, likely harder, negotiation phase.

In Brexit terms, the immediate political future looks more uncertain now that an election will take place in December before the final extension deadline. As May’s gamble to call an early election showed, a change in the composition of parliament is not the panacea to ratify a withdrawal agreement.

It is not far-fetched to argue that this may not be the last extension the UK government has to request. Despite the obvious frustration, Brussels will most likely agree to another if asked. After all, flexibility is the EU’s most effective tool as it aims to achieve its main Brexit goal – avoiding a damaging no-deal British departure.

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