11 April 2019

Erika Szyszczak is Professor of Law at the University of Sussex and a fellow of UKTPO.

Tempting as it is to work through the lyrics of the Paul Simon song,* the latest round of Brexit talks between the UK and the EU are already translating into the movie: The Long Goodbye.

By a Decision adopted on 11 April 2019, the European Council – under the patient and saintly leadership of Donald Tusk – agreed to grant the UK a second extension to Article 50 TEU either until 31 October 2019, or, an earlier date (if the Withdrawal Agreement is ratified) or until 31 May 2019 if the UK fails to hold elections to the European Parliament. The UK has in fact put in place an Order to facilitate the organisation of the elections to the European Parliament.

The Preamble to the Decision acknowledges that if the Withdrawal Agreement is ratified, the date of the UK’s departure from the EU may be earlier:

‘the withdrawal should take place on the first day of the month following the completion of the ratification procedures or on 1 November 2019, whichever is the earliest’.

The Preamble calls for a review of the situation in June 2019 but this does not entail that the second Article 50 TEU extension could be terminated earlier. Termination without the UK’s agreement  is only found in Article 2: the Decision

“shall cease to apply on 31 May 2019 in the event that the United Kingdom has not held elections to the European Parliament in accordance with applicable Union law and has not ratified the Withdrawal Agreement by 22 May 2019.”

The extension period is shorter than the one year period initially touted amongst journalists. Much has been made of the “trick or treat?” joke associated with Halloween. Another signifier is that it is the eve of All Saints Day, the celebration of saints, and the remembrance of lost loved family members. More pragmatically it is the last day of the term of office of the current European Commission and avoids a discussion of whether the UK should be able to appoint a new Commissioner.

Leading up to the second Article 50 TEU extension, the Hell-raising comments of Jacob Rees-Mogg MP, suggesting that if a second extension was granted the UK could create chaos in the EU Institutions, were quickly slapped down by an EU spokesperson, quoted in The Independent newspaper, referring to the principle of “sincere co-operation” found in Article 4 TEU

“A spokesperson for the European Commission suggested that the Tory MP was essentially irrelevant and not involved in negotiations.

This gentleman is not our interlocutor and I would say then that the principle of sincere cooperation does apply, as prime minister May herself makes clear in her letter,” the spokesperson told reporters in Brussels.

This language is reproduced in the Preamble to the Decision

“The European Council takes note of the commitment by the United Kingdom to act in a constructive and responsible manner throughout the extension period in accordance with the duty of sincere cooperation, and expects the United Kingdom to fulfil this commitment and Treaty obligation in a manner that reflects its situation as a withdrawing Member State. To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and shall refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union.”

Mindful of the need to move forward the European Council acknowledges in para 8 of the Conclusions to the European Council Meeting that:

“The 27 Member States and the Commission, where appropriate together with other institutions, bodies, offices and agencies of the Union, will continue to meet separately at all levels to discuss matters related to the situation after the withdrawal of the United Kingdom.”

It appears that the slogan “Brexit means Brexit” has assumed greater resonance in the EU than in the UK. The Decision affirms that the EU is not willing to reopen talks on the Withdrawal Agreement, and, importantly, states that the extension period should not be used to negotiate the future EU-UK relationship, but that there is a willingness to renegotiate the (non-binding) Political Declaration.

In contrast, the UK is falling out of love with the process of leaving the European marriage.

Instead of moving forward, the UK Brexit process is mired in legal and political wrangles. The first Article 50 TEU extension was implemented into UK law using a Statutory Instrument, in accordance with s 20 of the EU Withdrawal Act 2018, which set out a process to change the EU ‘exit day’. The legality of this measure has been challenged using judicial review and this itself is disputed by academic lawyers.

Bill Cash MP pre-empted the European Council Meeting by writing to Donald Tusk stating that

“Any decision by the Prime Minister to accept a long extension to Article 50 is likely to be challenged in the UK courts.”

The Withdrawal Agreement has now been rejected by Parliament three times, but the House of Commons – ‘taking back control’ of the situation – resulted in no clear way forward using the indicative votes process. In another controversial move, the Withdrawal Act 2019, based upon the Cooper-Letwin Bill, streamlines and simplifies the process of approving another change to ‘exit day’ in UK law. This allows the new second extension Decision in the UK to be adopted into domestic law and better protected from challenge by Bill Cash MP since the Statutory Instrument is merely laid before Parliament by the Minister and automatically becomes law. Indeed the European Council Decision was implemented by The European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019. A Statutory Instrument coming into immediate effect on 11 April 2019.

Lawyers are always cynical about a crisis. One positive outcome of the events in Parliament is to have ignited an interest and vibrant debate in domestic public law and administrative law.

In addition, the contempt of the Parliamentary processes felt by many members of the general public may induce a process of modernisation of Parliamentary procedures and governance.

In the political domain attempts to persuade the Labour Party to vote through a Withdrawal Agreement are unlikely to bring about a Parliamentary majority. Instead, it will very possibly fracture both main political parties. The new six-month breathing space allows time for a Revocation of Article 50 TEU.  It also creates space for a General Election, a second Referendum, a Conservative Party leadership contest. And at least a few more attempts to leave the EU.

*My thanks to Professor Adam Cygan of the University of Leicester who reminded me of this song.

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