A Week is a Very Long Time in Brexitland
Alan S. Reid (Sheffield Hallam University)
Brexit continues to surprise, dismay and amaze in equal measure. Like any good soap opera, a good cliff-hanger ending is required at the end of every episode of Brexitland 2019. This week and last week were no different, producing notable scenes of high drama and intrigue. The UK Parliament took back control by again resoundingly rejecting Theresa May’s Withdrawal Agreement and voting to rule-out a ‘No-Deal’ Brexit whilst the Speaker of the House of Commons, John Bercow, used arcane but authoritative parliamentary procedure set out in Erskine May to prevent the Prime Minister simply having a third bite of the Brexit cherry.
These seismic events have thrown the UK’s Brexit plans into disarray and mayhem. However, notwithstanding this chaos, one constant remains: As a matter of both EU law and UK Law, the UK still faces leaving the European Union at midnight Central European Time on the 29th of March 2019. Given the gargantuan legislative task still facing the UK in order to ensure the desired objective of a smooth and orderly Brexit, it is eminently sensible and pragmatic for that momentous date of proposed UK Independence to be dispensed with.
Given that at the time of writing, there are only 9 days remaining until extant Brexit Day, it is clear that the UK’s options for altering that day are limited.
The first option would be for Theresa May to bring forward a new, substantially amended Agreement, or indeed her existing Agreement, for UK Parliamentary approval, necessitating a short technical extension to Article 50 TEU.
The second option would see her decide not to bring forward an Agreement for approval in Westminster and simply ask the EU for a longer extension to Article 50 TEU.
The third option would be for a unilateral revocation of Article 50 TEU.
The First Option is the most problematic logistically but the preferred option for Her Majesty’s Government. It probably now necessitates the UK Prime Minister bringing on board a broad range of political and apolitical players, namely the Speaker of the House of Commons, UK Parliamentarians from across the political spectrum and the European Union. It may even require co-opting the Queen into the process. Under this option, the Prime Minister could deploy a number of mechanisms to subject her agreement, amended or otherwise, to Parliamentary debate. First, she could try to convince the UK Parliament to vote to overturn the Speaker’s ruling on arcane Parliamentary rules and thus bring back her Agreement unamended for voting upon. Secondly, she could secure ‘sufficient’ amendments to her pre-existing Agreement to surmount the Speaker’s present bar. Unfortunately ambiguity surrounds the Speaker’s bar – what does a substantial amendment mean? It may be interpreted expansively to include simple factual changes such as the simple fact that Brexit Day has, by necessity, been altered or it may be more narrowly circumscribed to require more fundamental changes such as those proposed by the MPs Kyle and Wilson to only approve the deal with a referendum lock-in requirement. The third option actively being considered is to prorogue Parliament. Under this process, the Prime Minister would ask Her Majesty the Queen to prorogue Parliament, ending the current session of Parliament, thus leading to a new Parliamentary session being brought forward, enabling Theresa May to resurrect her Agreement intact and present it to a technically reborn Parliament. The range of permutations outlined above are all complicated by the simple fact that all of these options require the EU-27 to unanimously agree an extension under the terms of Article 50 TEU. It is not clear that the EU-27 speak with one voice on this matter and both the European Commission and EU Council President Tusk are clear that an extension request needs to be accompanied by good reasons for the delay.
The Second Option is probably the simplest option logistically but the most asymmetrical in power dynamics, given the views already expressed by the EU-27, the European Commission and the EU Council on the reasons for a UK extension to Article 50 TEU. The EU are much more willing to accommodate an extension to Brexit because of a new general election in the UK, to give the UK population a second referendum on EU membership or to arrange a new UK-EU Withdrawal Agreement absent the most contentious red lines of the UK concerning CJEU jurisdiction and membership of the Single Market and Customs Union. The EU is extremely hesitant to simply agree an extension to allow serial attempts by the Prime Minister to put her existing deal to the UK Parliament.
The Third Option is the least palatable politically for the UK Government but the most UK-centric option. Scottish Parliamentarians of all hues, drawn from all legislatures affecting Scotland secured a historic ruling from the European Court of Justice that a Member State can unilaterally revoke its Article 50 TEU notification at any stage until the expiry of the timeline stipulated in EU law. I have argued elsewhere that the judgment was unsurprising given the one-sided nature of any Article 50 TEU notification. The Wightman judgment and the Opinion of Advocate General Sanchez-Bordona in the case, both point to the fact that the Member State will be free to revoke the notification as long as the revocation is unequivocal and unconditional. Since the European Court of Justice added no more qualification to such a revocation, it is entirely legitimate for a Member State to revoke Article 50 TEU and then re-trigger it at a subsequent date. In order to revoke, the Prime Minister would need to express the desire to revoke in writing to the European Council. However, the actual process becomes less clear given the express need for the process to be organised according to the constitutional requirements of the Member State concerned. Following the seminal UK Supreme Court Miller case, which required the Article 50 TEU notification power be bestowed upon the Prime Minister by statute rather than relying on the royal prerogative, it is highly likely that revocation of the Article 50 TEU notice, as the mirror opposite process, would similarly require Parliamentary approval, a most politically remote possibility.
The path to Brexit remains unclear and subject to numerous legal and political obstacles. Be sure to tune in to the next exciting, specially extended instalment of Brexitland 2019…
Alan S. Reid is a Senior Lecturer in Law at Sheffield Hallam University. He is an author of a number of publications and textbooks concerning EU Law. He specialises in EU Constitutional Law, Information Technology Law and Competition Law.