The Irish Times
Jun 29, 2018
There is no reason the EU cannot unilateraly agree an extension in the absence of a British request and it might be welcome
Ross Maguire, Vincent P Martin
Article 50 of the Treaty on European Union provides that any Member State may withdraw from the European Union. Prior to the Treaty of Lisbon in 2009 no such provision existed as it had always been assumed that membership of the Union was de facto permanent.
Brexit is the first invocation of the Article by a Member State. The process involves 2 distinct elements. The first is a decision by the Member State to withdraw. The second element is when the Member State notifies the European Council of its intention to withdraw. This second step begins a count down period of 2 years - after which the Treaties cease to apply to the Member State.
Importantly, that period of 2 years can be extended where the European Council, in agreement with the Member State, unanimously agrees to extend the period. Were such an extension to occur the withdrawing State would remain a full member of the European Union for the period of the extension.
It has always been assumed that it would be for the withdrawing State to seek an extension. There would then be a high hurdle to be crossed - in that any of the other 27 could block the extension. Presumably this was envisaged as a deterrent against the light use of Article 50 on the basis that once notification happens it is very likely that the Member State will be forced out of the Union.
On the other hand, there is nothing to prevent the European Council from offering an extension on a unilateral basis. It would then be for the UK to accept or reject this offer - either way, Article 50 remains extant and Brexit is neither prevented nor prejudiced, though it is postponed.
While it is fair to assume that if the UK itself sought an extension it would get it, there is little possibility in the current volatility of British politics that such a request could be made.
However, if the 27 made the offer a new dynamic might emerge. The UK would be compelled to consider the offer as an alternative to the current cliff edge it faces and time, now our enemy, could become reconciliation’s friend.
And even were the UK to reject the offer we are no worse off and millions of those in the UK who want to remain would have some solace by our act of solidarity.
Thus far Europe has respected Brexit as a domestic affair of the UK. An offer of extension will be considered interference by some. But in any divorce proceedings a spouse who does not want to be divorced, while having no power to stop the process, always retains the right to reach out.
The truth is that Europe has skin in this game.
A central aim of the European Union, as expressed in Article 3 of the Treaty on European Union, is the promotion of the wellbeing of its peoples.
The peoples of the United Kingdom remain peoples of the European Union until the 29th of March 2019. Until that date the European Union remains under an obligation to promote their wellbeing.
Many of those people do not want to leave the Union, and those who live in Northern Ireland will be severely adversely affected by Brexit. Furthermore, there are millions of EU citizens in the other Member States who will suffer because of Brexit.
Article 5 of the Treaty provides that each Member State shall facilitate the achievement of the Union’s task and refrain from any measure which could jeopardise the attainment of the Union’s objectives. As that task and objective includes the promotion of peace and the wellbeing of all its people, it must be assumed that there would be a compelling legal basis for the 27 to support such an initiative.
But the initiative must start somewhere and Ireland, as the country most in harm’s way, is best positioned to propose it.
The Irish government could request the European Council to make the unilateral offer of extension to the UK for a period, sufficient to allow rational and calm reflection.
After all, European unity helped facilitate the Good Friday Agreement. Intractable and bitter division, festering over centuries, was smoothed and eased by an over-arching borderless union across a continent. We might be orange or green or neither - but we are all European.
Since its birth 60 years ago the European Union, founded on the values of respect for human dignity and rights, freedom, democracy, equality and the rule of law, has proven positively the benefits of unity in a place previously racked by division.
This is too big and important a project for us to stand idly by as it is undermined. Back stops and borders aside, there is more the Irish government should do to defend this great human project of reconciliation.
Ross Maguire SC and Vincent P Martin SC are the founders of New Beginnings