Brexit Briefing - December 2018

Blondin crossing Niagara Falls

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Jane Lambert

As I have repeated many times in this blog, art 50 (3) of the Treaty on European Union provides:

"The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period."

The notification to which this paragraph refers is dated 29 March 2017.  Unless Her Majesty's government enters a "withdrawal agreement" within the meaning of art 50 (3) or revokes the notification before 23:00 on 29 March 2019 the laws that govern the United Kingdom's relationship with 27 of its closest neighbours, trading partners and allies will simply fall away. 

Although there are some who regard that prospect with equanimity there are many others who do not. As this is a legal and not a political blog, I will not enter the argument as to whether leaving the EU without a deal would be a good thing or a bad thing beyond observing that it would be expensive and inconvenient for many businesses and individuals which could have serious, adverse economic consequences for the whole country.

There are two ways of avoiding that eventuality.  One would be to enter the draft withdrawal agreement of 14 Nov 2018 that was approved by the governments of the remaining member states on 25 Nov 2018.  That is a "withdrawal agreement" within the meaning of art 50 (3) and it is probably as good an agreement as any British government could possibly get given the disparity in negotiating power between one member state and 27 others.  The other way would be to withdraw the notification which the Court of Justice of the European Union held to be possible in its judgment in Case C‑621/18, Wightman and others v Department for Exiting the European Union ECLI:EU:C:2018:999, EU:C:2018:999, [2018] 3 WLR 1965, [2018] WLR(D) 747, [2018] EUECJ C-621/18 which I discussed in my case note of 11 Dec 2018.

Both courses of action would require parliamentary approval.  The Prime Minister has already abandoned one attempt to secure such approval for the withdrawal agreement and has rescheduled another for this month.  As there is little evidence of a change of heart since her last attempt, it is possible that she may delay the attempt again in the hope that resistance to the draft withdrawal agreement will crumble the closer we come to the 29 March 2019.  The Prime Minister has already proved her skills as a tactician in the way that she routed her opponents in the parliamentary party by holding a confidence vote before they had time to organize. Whether delaying a vote on the withdrawal agreement until the last possible moment will work remains to be seen but, at present, it seems unlikely.

The revocation of the notification of 17 March 2017 is even less likely.   Ir would lead to howls of protest in sections of the press and Conservative Party.  Parliament would be accused of defying "the will of the people" though it has done precisely that in very similar circumstances as I explained in The Western Australian Secession Referendum - A Precedent for Dealing with Troublesome Referendums? 17 Dec 2018. As I added in Sometimes it is a Good Thing to ignore Referendums 19 Dec 2018, that decision turned out to be the right thing to do.  The Court of Justice made clear that any revocation of a notification under art 50 (2) would have to be in good faith.  The British government could not do it with the intention of issuing a new notification simply for internal political reasons.  It would also have to be prepared to hold elections for the European Parliament in May 2019.

The possibility of the UK's leaving without a withdrawal agreement is, to say the least, a strong possibility for which both the UK and the EU have been preparing.  I discussed those preparations in No Deal Preparations on Each Side of the Channel 20 Dec 2018.  In leaving the EU the UK will also leave the European Economic Area which will require a new relationship with the member states of the European Free Trade Association.  Agreements have been made with Iceland, Liechtenstein and Norway on a variety of issues and with Switzerland on expatriates' right which I covered in Future Relationship Agreements with the EFTA States 3 Jan 2019.  The agreement with Iceland, Liechtenstein and Norway contained provisions on geographical indications, database rights and exhaustion of rights  which I addressed in The IP Provisions of the Future Relationship Agreement with Iceland, Liechtenstein and Norway 4 Jan 2019,

Anyone wishing to discuss this article or the legal consequences of Brexit on their lives and businesses should call me on +44 (0)20 7404 5252 during office house or send me a message through my contact page,