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.” Could they be rebuilt? “To try and recreate these from scratch, or by using the Withdrawal Bill, is a very difficult task.” The Bill is already a mess.
“Difficult” may be understating it. Any patchwork solution “would lead to endless complexity,” Daly went on, “as businesses and ordinary people deal with pre-Brexit EU law, transition-period EU law and post-Brexit EU law, and how these interact with the common law.” There is yet another problem to consider: what the UK courts would say in such circumstances. “In the worst-case scenario, they might refuse to apply the principle of primacy of EU law, which would create enormous political and legal problems.”
“Amidst all the rows over ‘Henry VIII clauses,’ few have noticed that ministers may have the power to vary the Brexit date”
The seemingly sensible option is turning out to be impossibly complicated. But if the two-year transition planned by the government won’t work, what then? This, the argument runs, is where extending Article 50 could offer a way out. “The only safe way to implement a status quo transition period is to ask for an extension of the Article 50 period, during which the UK would remain an EU member and the ECA would remain in force,” said Daly.
This would be embarrassing for the government to say the least—and politics may simply end up killing the idea dead. May is currently walking a tightrope, trying to keep both Remainers and Brexiteers in her party on side while struggling with a razor thin majority in the Commons. A decision to extend A50 would infuriate Eurosceptics, who would likely view the move as frustrating Britain’s liberation from the EU shackles. Already there is disquiet: Leave stalwart Owen Paterson complained in the wake of May’s speech that Britain would be too close to Europe in the interim, while giant of the Brexit campaign Nigel Lawson told me last month that “one year is enough” for a transitional deal—and so has in effect contradicted the PM.
If the solution proposed last week angers Leavers, one can only imagine the response an A50 extension would provoke. But the government may be forced to bite the bullet or risk leaving itself legally vulnerable. An extension is “the safest legal option available for a status quo transition,” Daly told me. What’s more, the decision may simply be out of our hands. As deals go “it might well be the only one the EU is willing to accept.” The parliamentary arithmetic is far from the only consideration then.
There’s something else. Amidst all the rows over ministers rewriting EU law with “Henry VIII clauses,” few have noticed that they may also have the power to vary the Brexit date. As Politico’s Tom McTague points out, while the Brexit Bill mentions “exit day” 128 times, nowhere does it say that day will be 29th March 2019. An intriguing omission, which means that in principle A50 could be extended by the government without MPs voting through any Brexit Bill amendment.
That’s not to say an extension will definitely happen. It bears repeating that any movement in this direction would cause a massive domestic row, and would require consent from our European partners. But the contrarian take is that Article 50 may not pull us out in 2019 after all. We could Remain for a good deal longer. Indeed, though the government doesn’t know it yet, we may be forced to.
As the Brexit process continues, this is not the only A50 shock worth thinking about. There is also the possibility that we could wind up staying put in Europe for good. Kerr, the author of A50, confirmed to me recently “of course you can take it back!” So if public opinion turns as the economy continues to stall, we’ll have more than extension to discuss. Total revocation could be on the cards. But one thing at a time.