Legal realities may leave the government with no choice but to request an extension—however politically unthinkable that would beby Alex Dean / September 24, 2017 / Leave a comment
“The Prime Minister does not seem to have given any thought as to how the UK might implement the transition.”
Not what you want to hear from a leading legal academic at Cambridge in the wake of a Brexit speech from the PM—but then this government has wound up rather a lot of constitutional experts of late. The latest oversight could be the most problematic of the lot.
So what’s the issue? In Florence on Friday, May called for a two-year Brexit “implementation period.” While heralded by most as a sign the government is finally facing up to the bureaucratic nightmare ahead, and proof the sensible side of the Cabinet is winning the argument, Paul Daly, Derek Bowett Fellow in Law at Queen’s College, was rather less upbeat. The technical challenge of legislating for such a transition could be immense, he said—and the government doesn’t even seem to know it. In some seriously bad news for Theresa May, he warned that to get round the complexity she may be forced to do something she would much rather not: request an extension to Article 50.
The thinking is this. One type of transitional deal currently being discussed in Westminster and Brusssels is a “status quo” deal—a continuation of the relationship more or less as it is now, until 2021. But for such an arrangement to work the UK would need to “adopt all new EU law during the transition period”—no matter Boris Johnson’s recent argument to the contrary. (When pressed on this question in Florence, the PM tellingly refused to give a straight answer.) Britain would also have to respect the principle of primacy, “which makes sure that EU law prevails in any conflict with laws passed by parliament,” Daly said.
John Kerr, the man who drafted Article 50, told me recently that Brexit poses “immensely elaborate” legal challenges. He wasn’t kidding—and here the problems really start. “Currently, the system works because the European Communities Act (ECA) 1972 provides a framework for bringing EU law into the UK and giving it primacy,” Daly told me. But repealing the ECA—as the government plans to do with its Brexit Bill—and leaving the EU in 2019 “will destroy the two pillars of the system.”…