Some might think it is odd to devote any time to considering the question of when Brexit day will actually be. Everyone knows it is 29 March 2019.
But not so fast. Exit day is not expressly prescribed in the original draft of the EU (Withdrawal) Bill. Clause 14(1) of the Bill states that ‘“exit day” means such day as a Minister of the Crown may by regulations appoint (and see subsection (2)).’ However, following a commitment by the Prime Minister in the Daily Telegraph, David Davis proposed an amendment which provides:
Clause 14, page 10, line 25, leave out from “means” to “(and” in line 26 and insert “29 March 2019 at 11.00 p.m.”
Member’s explanatory statement
This amendment removes the power for a Minister of the Crown to appoint exit day by regulations and ensures that exit day is fixed at 29 March 2019 at 11.00 p.m. for all purposes.
The effect of this proposed amendment is to set in stone the moment the UK leaves the EU at domestic level, to the cheers of many Leave voters. But the problem is doing so may unnecessarily tie the hands of the UK’s negotiators.
Article 50 TEU
Article 50 provides the (skeletal) framework for leaving the EU. Article 50(3) TEU states that ‘[t]he 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.’
Article 50(3) therefore envisages that the EU Treaties will cease to apply (i.e. the UK’s membership will cease) on:
(i) the date of entry into force of the withdrawal agreement (option 1); or
(ii) two years after the notification referred to in paragraph 2 (i.e. 29 March 2017) (option 2)
(iii) some other date which is unanimously agreed by the EU-27 (option 3)
It is widely assumed that the Article 50 ‘divorce’ negotiations, together with transition (or ‘implementation’) deal, and possibly the outline of the future trade agreement between the UK and the EU will be settled by 29 March 2019, in which case Davis’ Exit Day amendment and the termination of the EU commitments will be aligned (option 2).
But it is possible to imagine another scenario: that the negotiations go to the wire, perhaps even late into the night of 28 March 2019. In other words, the divorce deal and some sort of transition are agreed only very late in the day – remember, after all, that what was concluded in the early hours of 8 December 2017 was only heads of agreement of the divorce, not the gory detail. Any such withdrawal agreement will require an Act of Parliament in the UK, via an ‘EU (Withdrawal Agreement and Implementation) Bill’, as promised by David Davis.
The Withdrawal Agreement also requires the approval of the European Parliament (Article 50(2) TEU), which in turn may decide to ask the Court of Justice for its views on the compatibility of the agreement with EU law. The deal concluded before 29 March 2019 might prescribe that it will come into force only once these two events have occurred, which might take another 6 months – during which time the UK would continue to remain a full member state.
Indeed, this is envisaged by Article 50(3): recall how option 1 spoke of ‘the date of entry into force of the withdrawal agreement.’ Yet prescribing Exit day as 29 March 2019 domestically via the EU (Withdrawal) Bill closes off the option of buying a bit more time.
The introduction of the Davis amendment therefore creates an artificial straightjacket. It will tie the negotiators’ hands because it will mean that the UK might have to take any deal on offer in September 2018 (to provide the necessary six months before 29 March 2019 for the UK parliament and the European parliament to have a vote) rather than having the longer and probably necessary period (September 2018 to March 2019) in which to negotiate further, and to draft and pass the statutory instruments necessary to deliver on what has been agreed.
In other words, the Davis amendment creates a rod for the UK negotiators’ backs, weakens any UK negotiating position and adds unnecessary pressure to those in the executive trying to deliver Brexit in a coherent, measured fashion.
Extending the application of the EU Treaties
There is a further suggestion arising from Article 50. Rather than negotiate a hasty deal and a messy transition, the UK could ask the EU27, acting unanimously, to extend the period of application of the Treaties (option 3) giving more time for negotiations over the divorce, any transition period and the future deal. This means that EU law will continue to apply, thereby avoiding the many complexities and uncertainties arising from transition, not to mention considering the application to the UK of the free trade agreements concluded by the EU with third countries.
This solution would necessarily need the deferral of the exit day, something that David Davis’ amendment to the EU(Withdrawal) Bill would preclude. This solution would certainly be the neatest, but is probably politically unfeasible, as the House of Lords European Union Committee has noted in its report on Brexit: Deal or No Deal.
The conclusion of the Joint Report between the UK and the EU on 8 December 2017 was a positive development, and showed signs of a better spirit of cooperation between the two sides, although the backsliding over the following days was less encouraging.
This blog has argued that fixing an exit day in UK law unnecessarily closes off the flexibility the EU and UK might need in the next turbulent months. The UK is leaving the EU. A tokenistic enshrining of the date of 29 March 2019 into domestic law might make the process of leaving more difficult.
By Professor Catherine Barnard, senior fellow at The UK in a Changing Europe.