THE THREE WAYS THE BREXIT DAY OF 29 MARCH 2019 CAN BE SHIFTED OR AVOIDED
There are now only days to go before the United Kingdom is set to leave the European Union by automatic operation of law on 29 March 2019.
This departure will happen, whether the UK agrees to the current “Deal” (the negotiated withdrawal agreement) or not, unless the UK chooses to do one of the three following things to shift or avoid the date.
Revocation of Article 50
The Article 50 process could be revoked.
Following last year’s Court of Justice of the European Union in Wightman, such a revocation can be done unilaterally by the departing member state.
There would, however, be two conditions.
The first condition is that the departing member state has to make this decision in accordance with its own constitutional requirements.
In my view, this would not need any new UK legislation as I think there is either (a) an implicit revocation power in the current notification Act or (b) a power to revoke under the prerogative.
(Other lawyers disagree, and they contend that revocation needs a statutory basis. In practice, of course, revocation simply needs to be in a legal form which would survive a domestic legal challenge, and here a fresh statutory provision is no doubt safest.)
The second condition is that the revocation brings the withdrawal process to an end.
The revocation should not just be for tactical reasons so as to stop and restart the Article 50 ‘clock’, with the intention of the departing member state re-notifying later.
The court in Wightman was careful not to explicitly adopt the point that the revocation be in good faith (one suspects that the court did not want ever to have to adjudicate this). How the EU would enforce or police this requirement is not obvious, but the UK would be prudent not to revoke unless it is willing to abandon Brexit, at least until there is a fresh mandate.
It is difficult, if not impossible, to see revocation happening before 29 March 2019.
If there is a delay and the 29 March 2019 date slips, however, then there may be a political and psychological shift in mood so that revocation becomes more plausible.
Post-dating the Deal
This second option is mentioned out of completeness, as it has hardly been mentioned or considered, even though it would solve a number of political and legal problems.
Under Article 50, it is open for the withdrawal agreement to stipulate an exit day other than the second anniversary of the notification.
Technically that exit date could be before that two year point, but it also can be later. There is no express limit on when it could be: two years or five years or so on.
In the meantime, the UK would remain full members of the EU.
On the other hand, however, the UK could be locked into departure on a later and waive its right of revocation (as the right of revocation may not survive the entry into force of a withdrawal agreement).
A sensible approach would be keep full membership in place until full follow-on trade agreement could be signed, with the Brexit-supporters perhaps having the security that the process could not be revoked.
Nonetheless, this approach is unlikely. The UK is not be able to accept the current deal whatever the departure date, and EU27 has said it will not re-open the deal. The practical scope for such a significant change is therefore limited.
Extending the Article 50 period
Under Article 50 the period can be extended beyond two years.
For various reasons, however, it would be difficult for the UK to delay the period beyond July 2019.
This is partly because the UK otherwise would (on the face of it) need to participate in the European parliament elections.
But there would be an overall changeover in the EU institutions, with a new EU Commission, which (on the face of it) would also need a UK commissioner. A new budget cycle would also be beginning (in respect of which the current exit deal has assumed the UK would not be part).
The extension needs unanimity by EU27, and this cannot be taken for granted. The EU27 would require a good reason.
The extension also needs to be formally requested by the UK it cannot be imposed by the EU27.
There appears to be a political-media consensus that such an extension is likely.
The UK is in a difficult predicament, with time running out before exit day. If the deal (or a variation of it) can be agreed in the next few weeks, then the severe problems of a no deal Brexit can be averted.
But if that is not possible, then the UK has to look at the options for moving or avoiding the date.
Of the three, only an extension seems politically possible, and that only delays but does not extinguish the problem.
The ultimate choice for the UK will remain the same: exit with a deal, exit without a deal, or revocation.
An extension does not avoid that final brutal choice.
This post is by our consultant solicitor DAT Green, and it represents the author’s own views.
For legal consultancy on Brexit please email Brexit@preiskel.com