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The Fate of the Withdrawal Agreement and the Extension of Article 50

The Fate of the Withdrawal Agreement and the Extension of Article 50

Charlotte Sieber-Gasser (University of Lucerne)

Following the announcement of House of Commons Speaker John Bercow, the British parliament is unlikely to vote for a third time on the Withdrawal Agreement. The agreement has been rejected by parliament twice in the past; for the second time last week, when it fell short in support of 149 votes. Given that no consensus emerged last week on how to proceed with Brexit, the British government was given the mandate of extending the Article 50 TEU deadline beyond March 29 2019. Whether and for how long Article 50 TEU proceedings are going to be extended depends on a number of factors:

  1. Extending the deadline requires consensus between the UK and the EU – while an extension is politically and legally possible, Article 50 TEU does not provide to either party a unilateral “right to extend the deadline”. If no consensus between the UK and the EU is reached until March 29 2019, ‘No-Deal Brexit’ is now the most likely outcome.
  2. Extending the deadline only appears to be justified if such an extension contributes one way or another to legal certainty in the relations between the UK and the EU. Prolonging the current impasse for weeks (or months) is harmful to both the EU and to the UK.
  3. Furthermore, European Parliament elections – mandatory for all EU members – are to be held in May 2019, which is further complicating the decision on a ‘reasonable duration’ of a potential extension.

Adoption of Withdrawal Agreement No Longer Possible – and With It a Technical Extension?

A short extension until May or June would normally have been reasonable only if British parliament agreed, after all, to ratify the existing Withdrawal Agreement. It has been suggested that a short or technical extension could be justified with the necessity to pass the legislation required for the implementation of the Withdrawal Agreement. However, it was not immediately clear from the start why passing such legislation would prevent the UK from complying with the deadline of March 29 2019. It would therefore have been rather unlikely in any case that the EU would have been inclined to agree to a (notable) technical extension.

European Parliament elections constitute an obstacle to a technical extension anyway: a short extension combined with the exemption of the UK from European Parliament elections would limit the EU’s ability to shape the Brexit process considerably, since without elected MEP’s, the UK is legally unable to keep membership status after June 2019. In case of no agreement on a new ‘deal’ by then, yet another extension of Article 50 TEU would appear legally impossible. In June or shortly thereafter, Brexit would be forced by law to result either in a variation of the Withdrawal Agreement, a ‘No-Deal Brexit’, or the unilateral revocation of Article 50 TEU. All of which are options more or less in unilateral control of the UK alone.

Maintaining the essence of the Withdrawal Agreement now hinges upon the ability of the EU and the UK to agree to ‘substantial changes’ within a short period of time in order to qualify for a third ‘meaningful vote’. Whether merely changing the departure date suffices to satisfy the benchmark remains to be seen. If agreement on a new departure date constitutes a ‘substantial change’ and a third ‘meaningful vote’ takes place soon, a technical extension of Article 50 TEU would remain a viable option, subject to, of course, approval by a comfortable majority of British MP’s.

On the other hand, a technical extension of the deadline appears impossible, should changing the departure date not qualify as a ‘substantial change’. It is quite unlikely that the UK and the EU agree on major changes to the substance of the Withdrawal Agreement within the next few days, a fortiori, since it is not entirely clear how the existing draft agreement could be meaningfully amended without crossing any red lines.

Departure from Withdrawal Agreement?

Should ‘substantial changes’ to the Withdrawal Agreement turn out to be impossible to achieve within the next few days or should a sufficiently different variation of the existing agreement be rejected for a third time, coming up with a ‘credible justification’ for a short extension of the deadline appears illusory. Namely, the British government would not be able to demonstrate how a short extension was likely to lead to an orderly Brexit and contribute to an improvement of the starting position vis-à-vis today. A long extension well beyond June 2019 would, however, mean that the UK has to participate in the European Parliament elections and needs to submit a credible strategy to escape from the current impasse. It has been suggested that such a strategy could, for instance, involve general elections or a second referendum. However, considerable uncertainty is linked with both suggestions.

Irrespective of whether it is underpinned by a ‘credible justification’, a long extension without a fundamentally new approach to Brexit is therefore unlikely to reduce the current legal and political uncertainty. Since it is neither in the interest of the UK nor of the EU to remain caught in the current domestic political impasse, lack of British leadership in the Brexit-process could sooner or later result in economic and political realities limiting the range of options left to choose among.

Looking Beyond Extension of Article 50 TEU

The Withdrawal Agreement does not define the nature of the relationship between the UK and the EU after its transition period, which currently ends in 2020. The agreement focuses on the relationship between the UK and the EU in the transition period and on a number of red lines, such as the backstop solution for Ireland and Northern Ireland. The real issue of the exact nature of the future EU-UK partnership, however, remains unanswered.

Whatever the final goal of Brexit, negotiating any kind of substantial trade or economic integration agreement within two years seems – at the very least – ambitious. Negotiating such an agreement without a clear mandate and without backing from the domestic constituency seems quite impossible. Thus, seeing the Withdrawal Agreement as a necessary stepping-stone to the final Brexit, it remains surprisingly unclear to what end (free trade agreement, customs union, EEA, etc.) the agreement is meant to serve.

Focusing on the starting point – the nature of the instruction to parliament stemming from the people’s vote – first, and subsequently on the final goal of Brexit, before turning to the modalities of a transition agreement may therefore prove fruitful. By achieving a minimum consent between MP’s on the legal basis and the general goal of Brexit, current controversies surrounding the existing Withdrawal Agreement – and with it the British government’s Brexit strategy – may actually resolve themselves.

In the absence of such minimum consent, the kind of extension of Article 50 TEU may, in the long run, not matter that much after all, since it will not be linked with a legitimate long-term strategy.

 

Dr. iur. Charlotte Sieber-Gasser, MA, is lecturer at the University of Lucerne, non-residential fellow of the World Trade Institute, University of Bern and lecturer at the MAS European and Global Governance of the University of St. Gallen. Charlotte Sieber-Gasser’s research focus lies on Constitutional Law, EU Law and International Economic Law. She is (Co-)Author of a number of studies dealing with various aspects of foreign trade policy in Switzerland.

 

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