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.

The Chequers Statement explained

Chequers Court

Author Stephen Simpson
Licence Copyright released by the author
Source Wikipedia

Jane Lambert

The Statement from HM Government issued from Chequers on 6 July 2018 appears to be a direct response to the European Council's Conclusions of 29 June 2018.  In order to understand both documents it is necessary to have regard for the Joint statement from the negotiators of the European Union and the United Kingdom Government on progress of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union.

The Joint Statement refers to a draft treaty for the withdrawal of the UK from the European Union which was first published on 28 Feb 2018.  The draft treaty is intended to be an agreement "setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union" within the meaning of art 50 (2) of the Treaty of European Union. It provides a timetable and road map for the orderly withdrawal of the UK from the EU. The draft agreement provides for the UK to observe the obligations of membership until 31 Dec 2020 after which a new framework agreement is hoped to be in place.

Without a withdrawal agreement, art 50 (3) provides that the treaties and the entire superstructure of legislation that has governed the relationship between the UK and its neighbours and allies since 1973 will simply fall away on 29 March 2019.

There are some who believe that such an outcome would be a good thing because it would enable:

• British businesses and consumers immediately to buy goods from suppliers outside the EU more cheaply than they can now because the UK would no longer have to apply the common external tariff on such goods; and 
• British diplomats to negotiate trade deals with countries outside the EU that would be more favourable to British business than the ones to which HM government is already a party.

That may or may not be the case but it is not a view shared by business leaders in the aerospace and automotive sectors that have warned that they will reconsider investing in the UK if the UK leaves the EU without, at the very least, a withdrawal agreement on the lines of the 28 Feb draft.

The problem for both the British government and the remaining EU member states is that any withdrawal agreement will have to be ratified by the British and European parliaments and there is not much time left for them to do it. That is why the Council expressed concern that no substantial progress had yet been achieved on agreeing a backstop solution for the border between the Irish Republic and the United Kingdom and called upon the UK to make its position clear on any framework agreement for future trade relations between the UK and EU.

Both the British government and the remaining EU member states are committed to an open border between the United Kingdom and the Republic of Ireland.  The EU Commission proposes a backstop agreement which would require Northern Ireland to remain in a customs union with the Irish Republic.  As that would be politically unacceptable to the UK, the Chequers statement makes two proposals. The first is that:-

"The UK and the EU would maintain a common rulebook for all goods including agri-food, with the UK making an upfront choice to commit by treaty to ongoing harmonisation with EU rules on goods, covering only those necessary to provide for frictionless trade at  the border."

Secondly:

"The UK and the EU would work together on the phased introduction of a new Facilitated Customs Arrangement that would remove the need for customs checks and controls between the UK and the EU as if a combined customs territory."

The government listed the benefits of the proposal one of which is that it should

"enable the Government’s commitments to Northern Ireland to be met through the future relationship, avoiding the need for a border between Northern Ireland and Ireland, or within the UK."

There is no guarantee that these proposals will be accepted but they are a start.  The alternatives to a withdrawal treaty are no agreement at all and the last paragraph of the statement makes arrangements for that eventuality, an agreed extension of the two year negotiating period in accordance with art 50 (3) or, if that is legally or politically possible, the revocation of the notice of intention to withdraw from the EU.

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.