Brexit – a Muckle Boorach

  • Insight

14 March 2019

Watching from the wings, as most of us are, albeit sometimes reluctantly, we continue to witness the slow-motion car crash that is the Brexit process in the UK Parliament. It’s a muckle boorach [Scots: - a big mess].

The EU Withdrawal Agreement

On Tuesday 12 March 2019, the House of Commons voted by a majority of 149 MPs to reject the UK Government’s proposed EU Withdrawal Agreement, recognising that little had changed, including the terms of the legal advice of the Attorney General, since the last time MPs rejected it in January 2019 by a majority of 230.

The UK Government’s failure to command a majority for its Withdrawal Agreement can be attributed to a range of factors, but the overriding factor in both defeats appears to be an on-going concern about the perpetual nature of what has been referred to as the “back-stop”, which provides a guarantee that, whatever happens, there will be no hard border placed between Ireland and Northern Ireland as a result of the UK leaving the EU.

Deal or no-deal Brexit

On Wednesday 13 March 2019, the UK Parliament voted on a motion in the name of the Prime Minister which passed by a majority of 43 MPs.  The motion, that the UK should not leave the EU without a deal on 29 March 2019, came just a few weeks short of the 2-year period following the UK giving notice to the EU of the UK’s intention to withdraw under Article 50 of the EU Treaty.  The motion also included the option that a no-deal was not ruled out thereafter.

However, in a far more politically significant vote on an amendment to the Prime Minister’s motion, MPs last night also voted by a majority of four (312 to 308) in favour of rejecting a no-deal Brexit at any time, with 12 Government Ministers (including four Cabinet Ministers) abstaining in the vote, in defiance of their own Government’s instruction to oppose this amendment.

The legal implications

While this vote is a strong political statement, it does not change the current default legal position, which is that the EU Treaties will no longer apply to the UK from 29 March 2019 and the UK will no longer be an EU member state, unless steps are taken before that date to delay departure, or stop it altogether.

The options

As matters stand, the options for the UK now appear to be:

• to leave the EU without a deal

• to have a 3rd vote on the Prime Minister’s Withdrawal Agreement before 29 March

• to seek an extension to the 2-year period for Brexit (perhaps to seek a re-negotiation,

have a further referendum or even a General Election following a vote of no confidence)

• to revoke Article 50 and to remain in the EU

Option to extend the 2-year period

The UK Parliament will sit again today (Thursday 14 March), this time to vote on the option of whether or not to seek an extension to the 2-year period for Brexit. Even if a majority of MPs vote in favour of an extension under Article 50, this cannot be obtained unilaterally by the UK. Article 50 provides that any extension to the UK’s 2-year time period to leave the EU must be agreed unanimously by the European Council, made up of the heads of state of each of the EU member states, the European Council President and the President of the European Commission.

EU reaction to developments in the UK and the extension option

It is difficult to predict the EU’s reaction to a request for an extension. However, some of the comments made in an impassioned debate in the European Parliament yesterday in preparation for the next meeting of the European Council on 21 and 22 March must be unsettling for those wanting an extension at this stage. The general position of other EU member states reflected in the debate appears to be that an extension is not automatic and that the UK will need to provide credible reasons for any extension.

The European Commission’s Chief Negotiator, Michel Barnier, called in the debate for the UK to indicate a clear line that it intends to take, before any extension can be granted. He noted that, although the EU did not want a disorderly Brexit, it was ready to face that situation if it had to and if no agreement could be reached on a way forward.  He indicated that the EU remained respectful of the UK and its people and determined, calm and united (until the end of what he described as an extraordinary negotiation) to defend the EU and all of its citizens.

Guy Verhofstadt MEP, the European Parliament’s Representative in the Brexit negotiations, said that he was not in favour of an extension of the 2-year period for Brexit, even if just for 24 hours, unless it was based on a clear majority voting in the House of Commons in favour of “something”. He thought what was needed was certainty, e.g. for a less ambitious deal, a customs union, a Norway-plus option – but that MPs needed to make up their minds to avoid continuing uncertainty for the UK, EU and all its citizens.

The comments in the European Parliament’s debate provide a clear indication to the UK Parliament and the UK Government about what is needed to obtain any extension to the 2-year time period, including alternative models for departure and provision for a possible second referendum, with questions still to be determined but which could include various options, including leaving the EU on the basis of the current Withdrawal Arrangement, leaving the EU on some other negotiated arrangement, leaving with no deal, or staying in the EU.

Revocation of Article 50 - an alternative option

That brings us to an alternative option, which is politically difficult for UK-wide parties such as Labour or the Conservatives given the UK-wide majority who voted to leave the EU, but more appealing to parties who only field candidates in Scottish parliamentary seats, such as the Scottish National Party and the Scottish Green Party (given that around 62% of voters in Scotland voted in the 2016 referendum to stay in the EU).  That is the option of the UK revoking its Article 50 notification.

If it had not been for the petition for judicial review brought by a number of MSPs, MPs and MEPs, it is likely that we would be none-the-wiser about the EU’s view on whether it is possible for the UK to unilaterally revoke its Article 50 notification. The petitioners’ reasons for bringing the action were to provide clarity on the UK’s options following Article 50 notification. The action, raised in the Court of Session, was referred by the Court of Session to the European Court of Justice (ECJ) for a ‘preliminary ruling’.

European Court of Justice ruling – unilateral right to revoke

The ECJ ruled that, where an EU member state has notified its intention under Article 50 to withdraw from the EU, it is open to that member state to revoke that notification unilaterally, provided this revocation happens before the conclusion of a withdrawal agreement with the EU or, if no agreement has been concluded within the 2-year period (and any extension agreed by the EU), before the expiry of the 2-year (or extended period). The ECJ indicated that any such revocation must follow a democratic process and be in accordance with the constitutional requirements of the UK as the member state, with an unequivocal and unconditional decision to revoke being communicated in writing to the European Council. A revocation of Article 50 brings the withdrawal process to an end and confirms the ongoing membership of the EU by the member state.

Conclusion

There is currently no vote scheduled in the UK Parliament on whether the UK should unilaterally revoke Article 50, but it remains to be seen whether such a vote will be forthcoming in the remaining days before the 2-year Brexit period expires. The immediate question for the UK Government and UK Parliament to consider is, if an extension is to be sought, can agreement be reached on the length of that extension and can a clear indication be given to the EU about the purpose of that extension that commands the agreement of a majority in the UK Parliament.

The debates and the votes seem set to continue and the overall direction of travel, at the time of writing, remains unclear. Meanwhile, organisations and individuals across the UK should continue to prepare and plan for a range of options.  We will continue to report on significant developments in this process.

For further details on the constitutional implications of Brexit, contact Fiona Killen, Partner and Head of Parliamentary and Public Law.

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