Extension of Art 50 (3) Notice Period

Jane Lambert

In my January Brexit Briefing, I wrote that one of four things had to happen before 23:00 on 29 March 2019:

• ratification  of the draft withdrawal agreement; 
• revocation of the notification of 29 March 2017;
• an extension of the notification period; or
• withdrawal of the UK from the EU without an agreement.

The government chose the third of those options.   It applied to the European Council for an extension of the notification period.  The Council granted its application by a decision dated 22 March 2019.

The decision is a very short document.  It consists of 2 articles and 12 paragraphs of recitals.  The effective provision is art 1 which is divided into 2 paragraphs. The first paragraph of art 1 extends the notification period to 22 May 2019 provided that the House of Commons approves the draft withdrawal agreement by 29 March 2019.  If the Commons does not do so, the second paragraph extends the notification period until 12 April 2019 in which case "the United Kingdom will indicate a way forward before 12 April 2019, for consideration by the European Council."

The reason for the time limits is explained in para (10) of the recitals:

"This extension will have the consequence that the United Kingdom will remain a Member State with all the rights and obligations set out in the Treaties and under Union law. If the United Kingdom is still a Member State on 23-26 May 2019, it will be under the obligation to hold the elections to the European Parliament in accordance with Union law. It is to be noted that the United Kingdom would have to give notice of the poll by 12 April 2019 in order to hold such elections."

If the Commons fails to ratify the withdrawal agreement by 29 March 2018, the choices for the government are to leave the EU without a deal on 12 April 2019, seek a longer extension to the notification period which would require this country to participate in the European Parliament elections or revoke its notification of 29 March 2017.

A head of steam is building up for revocation of that notification as evidenced by the massive numbers who took place in the march on Saturday and the even larger numbers of signatories to the Revoke Article 50 and remain in the EU. The government's response has been shrill.  In an email to all signatories it wrote:

"This Government will not revoke Article 50. We will honour the result of the 2016 referendum and work with Parliament to deliver a deal that ensures we leave the European Union.

It remains the Government’s firm policy not to revoke Article 50. We will honour the outcome of the 2016 referendum and work to deliver an exit which benefits everyone, whether they voted to Leave or to Remain. 

Revoking Article 50, and thereby remaining in the European Union, would undermine both our democracy and the trust that millions of voters have placed in Government. 

The Government acknowledges the considerable number of people who have signed this petition. However, close to three quarters of the electorate took part in the 2016 referendum, trusting that the result would be respected. This Government wrote to every household prior to the referendum, promising that the outcome of the referendum would be implemented. 17.4 million people then voted to leave the European Union, providing the biggest democratic mandate for any course of action ever directed at UK Government.
British people cast their votes once again in the 2017 General Election where over 80% of those who voted, voted for parties, including the Opposition, who committed in their manifestos to upholding the result of the referendum. 

This Government stands by this commitment. 

Revoking Article 50 would break the promises made by Government to the British people, disrespect the clear instruction from a democratic vote, and in turn, reduce confidence in our democracy. As the Prime Minister has said, failing to deliver Brexit would cause “potentially irreparable damage to public trust”, and it is imperative that people can trust their Government to respect their votes and deliver the best outcome for them. 

Department for Exiting the European Union."

Be that as it may, the march and petition appear to have spooked at least some MPs into reconsidering their opposition to the draft withdrawal agreement.

Anyone wishing to discuss this article or brexit, in general, should call me on 020 7404 5252 during office hours or send me a message through my contact form.

Brexit Briefing February 2019

Jane Lambert

This is the last Brexit Briefing before the two-year notice period provided by art 50 (3) of the Treaty on European Union runs out. We still do not know whether the UK will leave the EU on 29 March 2019, and, if it does leave, whether it will leave with or without the withdrawal agreement that the Commission and a departing state are supposed to negotiate and conclude by art 50 (2).

If Parliament approves the draft agreement of 14 Nov 2018 before the 29 March, EU law will continue to apply to the UK until 31 Dec 2020,  The agreement and the accompanying political declaration contain a number of provisions on IP which I discussed in  The Intellectual Property Provisions of the Draft Withdrawal Agreement 19 Nov 2018 and in my presentation to Sheffield Business and IP Centre on 6 March 2019. They will be implemented by a number of draft statutory instruments which I listed on slide 31 of that presentation.

If the government loses the forthcoming vote on the draft withdrawal agreement next week, it is possible (though perhaps not particularly likely) that Parliament will vote for an extension of the notice period or even revocation of the notification of the 29 March 2017.  An extension would have to be agreed by the remaining member states in accordance with art 50 (3) and they would have to be persuaded that there is a good reason to do so such as a second referendum which could lead to revocation of the notification. Should that happen there will be no change to our law at least until the extended notice period runs out.

The last possibility (and an increasingly likely one) is that time will run out without an extension or draft withdrawal agreement.  Were that to happen, legislation derived from EU directives will be saved by s.2  of the European Union (Withdrawal) Act 2018 and EU regulations would be incorporated into national law by s.3 mutatis mutandis pursuant to s.8.  The statutory instruments listed in slide 31 would then take effect from 23:00 on 29 March 2019.  Of course, there would be lots of other issues. The Senior Courts and their equivalents in Scotland and Northern Ireland would cease to EU trade mark and Community design courts and Regulation (EU) No 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters would cease to apply to the UK.

As I noted in my article of 19 Nov 2018, both the draft withdrawal agreement and the political declaration are silent on British participation in the Unified Patent Court. The government argues that the agreement to set up the Court is an international treaty outside the EU legal order and that the UK could remain a party to the agreement even if it leaves the EU without a withdrawal agreement.  For the reasons set out in my presentation, I regard that argument as unrealistic.

Anyone wishing to discuss this article or brexit and intellectual property, in particular, should call me on 020 7404 5252 during office hours or send me a message through my contact page.