The EU Council of 10 April 2019 accepted the UK’s request for an extension to Article 50, albeit one that was much longer than had been requested. One consequence of this extension is that, barring the unlikely event that Parliament passes the Withdrawal Agreement before 22 May, the UK will be legally required to participate in the European Parliament elections. Parliament’s rejection of the Withdrawal Agreement and confirmation that the UK will not leave the EU without a deal has led to a constitutional impasse the primary consequence of which is that the status quo is likely to be preserved until at least the 31 October 2019.
In terms of the Brexit process now moving forward during the Article 50 extension, the overused metaphor of the ‘ball is now firmly in the UK’s court’ would seem most appropriate. But what does this mean for the UK’s attempt to leave the EU in an orderly fashion at some point on, or before, the 31 October 2019?
The European Council Conclusions, though written in ‘Eurospeak’, lay bare the obligations on the UK in the coming months – particularly the UK’s continuing commitment to abide by the Treaty requirement of sincere cooperation, to act in a constructive and responsible manner throughout the extension, and to fulfil this commitment and Treaty obligation in a manner that reflects its situation ‘as a withdrawing member state’.
This reference to the UK as a ‘withdrawing member state’ is significant. Not only does it refer to the UK’s ongoing Treaty commitments, but it also implies that sincere cooperation should extend to the UK’s internal political efforts to resolve the parliamentary impasse and propose a solution that enables the UK to leave the EU with a deal.
The UK, as the withdrawing member state, has already sought two extensions to Article 50 because of its own domestic failures to approve the Withdrawal Agreement. In response, the EU, in the Council Conclusions, acknowledge that the UK’s solution to breaking the impasse may lie in reopening the non-binding Political Declaration on the future relationship, but this will first necessitate that the UK position somehow ‘evolves’ in the coming weeks and requires that Parliament approves the Withdrawal Agreement. This supposes that Theresa May will be successful in cross-party talks with Labour on the principles and values of the future UK-EU relationship.
But, herein lies the problem, sincere cooperation between UK political parties, at least at the level of party leadership, appears to be in short supply. Furthermore, it also requires that the two main political parties, which would appear to be as far apart ideologically as at any point since the early 1980s, will have to come to policy decisions where they currently disagree substantially. This includes whether the UK has a customs union with the EU, the UK’s future regulatory standards across a range of policy areas such as employment protection, and more generally the question of how close the UK’s future relationship with the EU should be.
So sincere cooperation as a withdrawing member state is a challenging prospect for the UK both in terms of its relationship with the EU during the Article 50 extension and domestically with respect to finding a political agreement which has so far proved elusive. Indeed, what undermines the notion that the cross-party talks are based upon a principle of sincere cooperation is that any potential agreement is likely to come at a political cost for either or both parties who will first need to abandon some, if not all, of their ‘red lines’ in order to reach an agreement.
Thus, whilst talks are ongoing and described by both sides as ‘constructive’, ‘wide ranging’ or ‘testing ideas’, none of this hides the fact that at the core of these talks remain issues which concern irreconcilable political differences over issues such as deregulation, industrial policy and the role of the state after Brexit.
However, before the talks are completely dismissed as doomed to failure, it is important to understand their context and why they are taking place. Though not necessarily the solution, the very existence of these talks and their ostensible demonstration of sincere cooperation should be seen as part of the political process which, when it fails, sooner or later leads the UK to some electoral event.
Whether this takes place before 31 October 2019 is unclear, but the perceived best efforts of UK political leaders to resolve the problem should go down well in Brussels and make the EU more likely to accommodate any further extension to Article 50 beyond 31 October in order to facilitate some form of public vote. If nothing else, these talks should be viewed as a public display, by UK political parties, to the EU that the UK is, at least, seriously looking for a solution to deliver an orderly Brexit.
But, these talks are likely to be the last chance, within this parliamentary term, to find a solution without asking the electorate. Whatever the outcome of these cross-party talks, whether there is an election or another referendum, leaving the EU in an orderly manner requires that the Parliament first approve the Withdrawal Agreement. If, as looks increasingly likely this will not happen and these cross-party talks fail to arrive at a compromise and consensus over the future UK-EU relationship, the UK is facing the prospect of a lengthy period of political and constitutional upheaval.
The only certainty this creates is that Parliament, parties and MPs will remain divided on how to deliver Brexit, and turning to the electorate offers no immediate guarantee that the Brexit impasse will be any more readily overcome.
By Professor Adam Cygan, Professor of EU Law at the University of Leicester and Research Leader at The UK in Changing Europe.