Can the Brexit clock be stopped?

The deed has been done, the letter delivered.  All over media screens the two-year clock started ticking, registering to the level of seconds the time left for Britain’s EU membership. The point of Brexit, when by virtue of Article 50 the Treaties cease to apply, can be determined with atomic precision, so it seems.

But the relationship between law and time can be treacherous, and those who look at the two-year deadline of the withdrawal process as a physical fact could well come in for a surprise. Of course we know that the European Council has the power to decide, unanimously, to extend the withdrawal process. So much is expressly stated in Article 50. There is however more to Article 50 than meets the eye.

In a paper written with Dr Eleni Frantziou (Westminster), and to be published in coming months (for my lecture on the subject, see here), we argue that Article 50 needs to be interpreted and implemented in line with broader EU constitutional principles. We also point out that UK constitutional law governs further UK decision-making on Brexit. Our conclusions are that the clock can be stopped in a number of ways.

First, the UK could change its mind.  Our view is that the Article 50 notification is revocable. The notification implements a decision to withdraw, in accordance with the withdrawing state’s “constitutional requirements” (Article 50(1)).  If that state rescinds that decision, in good faith, and in constitutionally orthodox fashion, the very basis for withdrawal falls away. In the UK Parliament is sovereign. It has authorized the government to notify the intention to withdraw; it could decide, at any point, that Brexit is off.

The EU respects the constitutional identity of its member states (Article 4(2) TEU), and would therefore need to respect a Brexit reversal, for else the effect of Article 50 would be one of forced expulsion. The travaux of Article 50 show that such an expulsion mechanism was rejected. Of course any abuse of the Article 50 process must be avoided – there cannot be an opportunistic letter-sending sequel – but the law can deal with abuse. The EU’s whole purpose is integration, and the return of the prodigal son would fit that purpose.

Second, what if a withdrawal agreement, negotiated within the two-year period, is rejected by the UK Parliament? The government claims that will mean exit without an agreement. However, distinguished and erudite legal opinion disputes this. It interprets UK constitutional law as requiring that the ultimate Brexit decision be taken by Parliament.

It bases that interpretation on the Supreme Court judgment in Miller, which confirmed that only Parliament can change the law of the land. So Parliament could ask for further negotiations, even beyond the two-year period. We argue that EU law needs to respect this, because again this would be part of the UK’s constitutional requirements. The text of Article 50 should be read as meaning that the two-year deadline is limited to an agreement not to agree – a deal on no-deal.

Third, what if the European Parliament withholds its consent to the negotiated withdrawal agreement?  Again that should not lead to a no-deal Brexit, simply because the clock runs out. Otherwise the European Parliament is, effectively, forced to consent, and that is not in accordance with EU constitutional principle. So the European Parliament, too, could ask for further negotiations, beyond the two-year period.

Fourth, the withdrawal agreement could be referred to the EU Court of Justice. Under 218(11) TFEU the Court can be asked for its opinion on an international agreement which the EU “envisages” to conclude. Such an opinion looks at the compatibility of the agreement with the EU Treaties, and can be requested by any Member State or by an EU institution. The Court would need time to consider such a case, and we would argue that, again, this should stop the clock.

Fifth, Article 50(3) provides that the Treaties cease to apply from the date of entry into force of the withdrawal agreement (and “failing that”, two years after the notification). In our view the withdrawal agreement could set a date for entry into force which lies beyond the two years.  Such an approach would leave more time for a transitional period, in the course of which the future relationship could be worked out.

We recognize that on each of these questions there are different views.  The mechanics of the clock are one thing.  What is important, from the perspectives of both EU and UK constitutional law, is an orderly transition, and one which is consensual rather than Brexit by force of a legal clock running out. It is definitely a constant of the EU’s history to resolve constitutional crises by agreement, to a fault.  If ever a crisis called for such an approach it must be Brexit.

By Piet Eeckhout is Professor of EU Law and Deputy Dean, Faculty of Laws, UCL, and Academic Director UCL European Institute

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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  • Eurinco

    Looking at the fifth option, it is already clear that if UK govt is to achieve its stated objectives, a transitional period will be needed post March 2019.
    In particular, there may be initial discussions on a possible FTA in parallel with the article 50 negotiations, but any agreement would have to be concluded later, from outside the EU.
    So if govt is to avoid the cliff edge of trading on WTO MFN terms from day 731, which as Mrs May herself said in the House is the default position, it will need to adopt a two-stage approach so as to allow a transitional period to conclude a trade agreement with the EU27, and also to negotiate terms with the rest of the world which can only begin once UK has left the EU.
    There is only one ready-made post-Brexit transitional arrangement which can protect UK trading terms, which is to remain in the EEA, at least for a period. It is highly unlikely that any other Taylor-made transitional arrangement could be agreed within the Article 50 timeframe, not least because ministers still delude themselves that a trade deal can also be concluded before March ’19.
    The EEA, sometimes referred to as the single market, is not as ministers suggest ‘part of the EU’. It is an arrangement between the EU and EFTA – the body we ourselves set up in 1960 as an alternative to the then EEC.
    If we are to leave the EU, it makes every sense to revert to EFTA membership, maybe to latch on to its extensive range of FTAs with third countries around the world. As non-EU members of EEA, UK could apply an ’emergency brake’ on freedom of movement (if we can make a case for it) under Art 112 EEA, without undermining the status and residency rights of EEA citizens already living here. Trade disputes would be resolved during this period by the EFTA Court (and not the ECJ). So we would leave the EU – as mandated by the referendum – without breaching the terms of the Conservative Manifesto 2015 (which said unequivocally “Yes to the Single Market” and still meet Mrs May’s “red lines”.
    So at some point, as the realities of the negotiations strike home, the govt should retreat to a two-stage approach: clear the decks to leave the EU, recognising that leaving the EEA can follow later – preferably after the 2020 general election, which the Conservatives can if they wish fight on a manifesto saying “No to the Single Market too”.
    The important point is that on leaving the EU, UK would in this way buy time to negotiate trading arrangements before we rip up our existing trade agreements with the EU and the world beyond. We would avoid the ‘cliff edge’ of which the CBI and others have warned.

  • Eurinco

    Looking at the fifth option, it is already clear that if UK govt is to achieve its stated objectives, a transitional period will be needed post March 2019.
    In particular, there may be initial discussions on a possible FTA in parallel with the article 50 negotiations, but any agreement would have to be concluded later, from outside the EU.
    So if govt is to avoid the cliff edge of trading on WTO MFN terms from day 731, which as Mrs May herself said in the House is the default position, it will need to adopt a two-stage approach.
    This would provide a transitional period to conclude a trade agreement with the EU27, and also to negotiate terms with the rest of the world which can only begin once UK has left the EU.
    There is only one ready-made post-Brexit transitional arrangement which can protect UK trading terms. That is to remain in the EEA, at least for a period, when we leave the EU.
    It is highly unlikely that any other taylor-made transitional arrangement could be agreed within the Article 50 timeframe, not least because ministers still delude themselves that a trade deal can also be concluded before March ’19.
    The EEA, sometimes referred to as the single market, is not as ministers suggest ‘part of the EU’. It is an arrangement between the EU and EFTA – the body we ourselves set up in 1960 as an alternative to the then EEC.
    If we are to leave the EU, it makes every sense to revert to EFTA membership, maybe to latch on to its extensive range of FTAs with third countries around the world.
    As non-EU members of EEA, UK could apply an ’emergency brake’ on freedom of movement (if we can make a case for it) under Art 112 EEA, without undermining the status and residency rights of EEA citizens already living here.
    Trade disputes would be resolved during this period by the EFTA Court (and not the ECJ).
    So we would leave the EU – as mandated by the referendum – without breaching the terms of the Conservative Manifesto 2015 (which said unequivocally “Yes to the Single Market”) and still meet Mrs May’s “red lines”.
    At some point, as the realities of the negotiations strike home, the govt should retreat to a two-stage approach: clear the decks to leave the EU, recognising that leaving the EEA can follow later.
    Logically, UK would then consider leaving the EEA only after the 2020 general election, which the Conservatives could if they wish fight on a manifesto saying “No to the Single Market too”.
    The important point is that on leaving the EU, UK would buy time to negotiate new trading arrangements before we rip up our existing trade agreements with the EU and the world beyond.”

  • jgso2o7

    There may be a rethink but a reversal will not be allowed!

    Once Art. 50 is set in motion it’s game over, there is no way back! The application for leaving the Union cannot be revoked. After 2 years of tortuous, acrimonious negotiations the Brits will have antagonized the rest of Europe to an extent that the United Kingdom is not welcome in the family of European nations anymore! Under no circumstances will the peoples of Europe allow the British to change their mind and say they did not mean it and, please, allow us to come back! No way.

    The EU will be so much more agile, flexible, dynamic and successful once it has shed the choking yoke of the island kingdom. Europe will get deep and beneficial trade links with other parts of the world and its financial institutions will be dealing more efficiently and much more honestly with the public again. Whatever the outcome will be, the UK will be materially in a worse position than they are now, probably much worse. If that is alright with the Brits, it’s definitely alright with us.

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