Tuesday, 5 March 2019

24 days to Brexit ~ a brief roundup

UPDATE 7 March - BBC News - Brexit: UK urged to table 'acceptable' backstop remedies

The UK has been urged to table fresh proposals within the next 48 hours to break the Brexit impasse.   EU officials said they would work non-stop over the weekend if "acceptable" ideas were received by Friday to break the deadlock over the Irish backstop.

A proposal for an "Implementation Protocol" has been put forward by Professor K A Armstrong (Professor of European Law, Cambridge - HERE.   The Protocol would be an integral part of the Withdrawal Agreement and would act as a legal bridge between the legal text of the Agreement and the Political Declaration on the future relationship between the Union and the UK.

A look at some of the Brexit news and stories ....

24 days to "Exit Day."

The European Union (Withdrawal) Act 2018 section 20 defines "Exit Day" as 29 March 2019 at 11pm.  The legislation also provides that a Minister of the Crown may by Regulations amend the definition of Exit Day but the Regulations have to be approved by resolution of both Houses of Parliament.

On-going talks:

15 January, the House of Commons rejected the negotiated Withdrawal Agreement and Political Declaration - (previous post).

29 January, a Commons vote required "the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border"- (previous post).

Discussions are continuing with the EU.  (These are perhaps best described as post negotiation discussions).

BBC News 5 March 2019 reports - "Brexit Secretary Stephen Barclay and Attorney General Geoffrey Cox will meet EU officials in Brussels in search of guarantees over the backstop plan to avoid border checks in Ireland."   The outcome is awaited but there will need to be something substantial if MPs are to be persuaded to vote in favour of the withdrawal agreement.   One report - Brexitcentral 2 March - states that "a legal add-on to the Brexit deal" is under consideration.  This may explain the somewhat unusual involvement of the Attorney-General at the forefront of these particular negotiations.  He issued his advice to government in December 2018 following a demand from the House of Commons that it be published - (previous post).

It is further reported that the so-called "European Research Group" of Conservative MPs has assembled a "star chamber of eight Brexiteer lawyers" to "forensically analyse whatever Cox brings back from Brussels."  It is understood that the group includes DUP leader Nigel Dodds and it is reported that Dodds' view is that any changes to Theresa May’s Brexit deal must be legally binding or they “will not cut the mustard” with his party -  News Letter 5 March 2019

Further votes in the Commons:

The political arithmetic at Westminster has altered since the earlier "meaningful vote" given that 11 MPs have formed an Independent Group.  

27 February, the Commons voted in favour of holding a further vote on the Withdrawal Agreement by 12 March.  If the Agreement is again rejected, there is to be a further vote on whether to leave the EU without a deal.  If that is rejected, a third vote will take place as to whether a short extension to Article 50 should be sought - (previous post).

Commons Library - The Brexit timetable: One promise. Two weeks. Three key votes.

If Withdrawal Agreement is approved:

If, in the light of the outcome of the further talks with the EU, the Withdrawal Agreement is accepted by MPs then it will be necessary to enact primary legislation to enable the government to ratify the agreement.  This is a requirement set out in the European Union (Withdrawal) Act 2018 section 13(1)(d).  A Bill has not yet been published !  It is not easy to see how this can be achieved by 29 March and an extension of Article 50 could be needed for this purpose.

A legal argument has been presented to the Exiting the EU Committee that the UK cannot lawfully ratify the supposed Article 50 TEU withdrawal agreement.  The argument, by Dr Andrew Watt, may be read HERE.

No deal?

MPs could vote for a "no deal" Brexit though the House of Commons as a whole seems to be set against this.  "No deal" is a major cause for concern for the economy - see the CBI analysis and UK Government's Preparations for a"no deal" scenario.

Extend Article 50:

Extension of Article 50 requires unanimity in the European Council.  The Prime Minister only referred to a possible "short" extension and she noted the impending European Parliament elections - (see Statement).  A longer extension would require the election of members from the UK.

At the moment the European Parliament has 751 seats - the maximum number allowed by the EU treaties.  27 of the UK's 73 seats will be redistributed to other countries, while the remaining 46 seats will be kept for future enlargements. This means the number of MEPs to be elected will be 705. - (European Parliament).

Talk of a long extension:

Could the 21 month transition period be replaced with an extension of membership to the end of 2020 - The Guardian 24 February 2019 - "This would allow the UK and the EU to develop their plans for the future relationship with the aim of making the contentious Irish backstop redundant."

Any need for short-term extensions to Article 50 would be avoided.

A further possibility:

If requested by the UK, the EU might offer a short extension (e.g. to enable legislation to pass to permit ratification of the withdrawal agreement).  If, at the end of the extension, the UK is not in a position to ratify the deal then the EU could offer a longer extension but insist that the UK chooses between that or a no deal departure.

What an extension might mean in practice:

Professor K Armstrong (Professor European Law, Cambridge) - The Conversation - Extending Brexit: What a delay would mean in practice.

Further argument?

Yet another report is that, having used the courts in 2017 to give parliament a say in the triggering of article 50,  Gina Miller is now seeking to reframe the way in which Westminster and Brussels contemplate the possibility of  an Article 50 extension.  The Guardian 3 March reported - "Armed with a legal opinion written by Kieron Beal QC and three other senior lawyers, the co-founder of the pro-remain campaign Lead Not Leave will argue that the EU council of ministers could itself, unilaterally, extend the article 50 deadline. 

I have not had the benefit of seeing this legal opinion BUT this argument appears to run contrary to the wording of Article 50 which makes it clear that the Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

Hence, an extension can only be with the agreement of both parties.  Nonetheless,  Miller appears to be reminding "the 27 other member states that they cannot, as a matter of law as well as of supranational ethics, play Pilate and wash their hands of this mess."

Legislation required:

Brexit has entailed a vast amount of legislative activity and a number of Brexit-related Bills remain to be enacted.  At the end of January, The Guardian reported  that the government was "battling" to get essential primary legislation bills through before 29 March, covering trade, immigration, financial services, agriculture, fisheries and international healthcare arrangements.

Numerous Statutory Instruments have been passed or remain to be passed - see Hansard Society Statutory Instruments Dashboard.  Government ministers initially said that they expected to lay between 800 and 1,000 Statutory Instruments (SIs) to prepare the statute book for exit day, primarily using powers in the EU (Withdrawal) Act 2018.  In September 2018 ministers indicated that the final figure would probably be closer to 800 than 1,000, and in November 2018, this figure was revised down to approximately 700 SIs, although it was stressed that this figure might also be subject to fluctuation in the weeks ahead.  In January 2019, the number of Brexit SIs needed by exit day was revised down again to “fewer than 600”.

European Medicines Agency:

This Agency closed in London on 1 March 2019 and has relocated to Amsterdam.   This brought about the case of Canary Wharf Ltd v European Medicines Agency [2019] EWHC 335 (Ch) oncerning frustration of a lease.  Required reading for land law and law of contract students.  Mr Justice Marcus Smith concluded - " ... the Lease will not be frustrated on the withdrawal of the United Kingdom from the European Union. This is neither a case of frustration by supervening illegality nor one of frustration of common purpose. The Lease will not be discharged by frustration on the United Kingdom's transition from Member State of the European Union to third country nor does the EMA's shift of headquarters from London to Amsterdam constitute a frustrating event. The EMA remains obliged to perform its obligations under the Lease."


The whole Brexit process was bound to be difficult despite the claims of Brexiteers that all would be easy and that beneficial trade deals would rain down.  It is hard to think of any modern parallel for such avoidable chaos.  There is no easy answer and the government has set its face against either a further referendum or revocation of Article 50.  We are witnessing a golden age of political blundering and it is far from clear what will emerge over the remaining 24 days. 

Other links:

Brexitcentral - Deal or no deal, here's why Brexit cannot be stopped

Bloomberg 5 March 2019 - Brexit Bulletin: Last Ditch

No comments:

Post a Comment