The Cooper-Letwin Article 50 Extension Proposal – How Long For?

Arriving at a summit at Sharm El-Sheikh, the UK Prime Minister has confirmed that this week’s votes in the House of Commons will not include a vote to approve a revised Brexit deal. No ‘deal in the desert’ is set to emerge at this gathering of EU leaders. Instead the so-called ‘meaningful vote’ will likely take place on 12 March a matter of weeks before the United Kingdom’s scheduled departure from the European Union on 29 March 2019.

There may, however, be a vote of some significance if MPs vote on the plan promoted by Yvette Cooper and Oliver Letwin to seek an extension to the Article 50 withdrawal process, pushing back the date of the UK’s departure from the Union.

At the end of January, the House of Commons rejected Cooper’s original amendment that would have extended the Article 50 process to the end of the year. But as time has passed the likelihood of a need to request more time has grown.

With the exception of a ‘No Deal’ Brexit – which MPs rejected when they voted on the ‘Spelman amendment’ in January – any Brexit scenario is now going to need an extension of the Article 50 process.

If MPs had this week been presented with, and backed, a Brexit deal, the legislation to bring that deal into law in the UK – a 100-page European Union (Withdrawal Agreement) Bill – will take time to make its way through the legislative process. This sort of extension is what is sometimes described by the EU as a ‘technical extension’ and would be for a matter of months.

However, with the EU still waiting for clarity from the UK about what sort of deal could command a majority in the House of Commons, a more radical idea has been floatedof forgetting about a technical extension and instead pushing Brexit back to 2021. In essence this would mean abandoning a 2019 Brexit with a transition period to 2020 or 2021 during which a new EU-UK relationship would be worked out.  Instead the UK would remain a Member State while it decided what it really wanted by way of a future relationship with the EU.

A delayed Brexit of this length would avoid the problems of a shorter extension running into the May 2019 elections to the European Parliament. Remaining a Member State would mean that the UK would have to return MEPs in this year’s election notwithstanding that the number of MEPs allocated to the UK have already been redistributed to the other Member States.

Nonetheless, it would also beg the question whether the EU – contrary to the position it has consistently taken – would actually be prepared to negotiate the text of a future relationship without the UK having become a so-called ‘third country’. The key advantage of having a negotiated deal in place at the moment that the UK left the EU would be that it could avoid the need to have an ‘Irish backstop’ as an insurance policy while negotiations on a future deal that would also avoid a hard border were on-going.

While one can see the advantages of a delayed Brexit, it would have profound domestic political consequences.

It would accept that the May Government had failed to produce a plan for the future capable of obtaining a consensus or even a majority within the Commons. If the Prime Minister cannot get a deal over the line with a technical extension to implement it, it’s difficult to see how either she or her government could carry on. Indeed, one might even consider that an extension of Brexit to 2021 would be a pretext for an early election to allow a new government to seek to build a consensus on a different way forward. In that way, it would be a proposal that would play to the Labour leadership’s preference for a general election as a way of unblocking the Brexit deadlock.

Delaying Brexit would create a significant rift in the Conservative Party between those who don’t want any delay to Brexit even if that means a No Deal Brexit, and those who want a softer Brexit or even for the UK to remain in the EU. It would also be a significant boost to Nigel Farage and his Brexit party who would claim that Brexit was being frustrated, creating futher tensions within the other main parties.

For those who want the UK to remain in the EU, the longer the UK remains a Member State, the greater the potential to build momentum around a new referendum and a Remain vote.

It is readily apparent, therefore, that a lengthy extension to UK membership of the EU wouldn’t merely create an opportunity to define a vision of a UK future outside of the EU, it would fundamentally reconfigure the domestic politics of Brexit.

More immediately, this all presents a very important choice for a new Cooper-Letwin Article 50 extension proposal.

Any extension needs the consent of the EU27. If the EU has come to the conclusion that an extension is EITHER a short-term technical extension OR a more lengthy delay to Brexit, then the Cooper-Letwin proposal would need to choose between these options.

If they go for a short extension it would be tantamount to accepting that Brexit will be a variant of the current negotiated texts with a risk that a No Deal Brexit could still happen if MPs refuse to back the deal.

If they go for a longer extension, it would recognise that only a No Deal Brexit had been largely taken off the table with a No Brexit option remaining in play as well as a potential change of government.

Whie the Prime Minister could have lived with an amendment giving a technical extension, an amendment that would significantly delay Brexit would be difficult for the Government to support even tacitly.  It would also be difficult for the Labour leadership not least because of the intense pressure on Jeremy Corbyn following this week’s spate of MP’s resignations from the party. The Labour Party may say it wants a general election but it is not obvious it would win given the internal divisions within the party over Jeremy Corbyn’s leadership.

Once again, issues of time profoundly shape what sort of Brexit – if any – will result. The fate of the Cooper-Letwin initiative may well depend on how much time they think is needed for an Article 50 extension.

There may be no deal in the desert but the sands of time continue to trickle for the UK and the EU.

 

Extending the Transition Period: 3 Options

Following her visit to the European Council meeting in Brussels, the Prime Minister Theresa May indicated that the UK might seek to extend the Brexit transition period ‘for a matter of months’. A recent European Policy Centre discussion paper has proposed a one-off mechanism to extend the transition period for a year. However, this week newspapers reported that the Cabinet had been warned that the UK could end up in a long-running transition following its departure from the EU. In a new Faculty of Law Research Paper,  I explore three options open to the UK to extend the transition period and conclude that creating an extended transition and implementation facility would allow transition to end early as new agreements between the UK and EU enter into force.

For some time now, both the United Kingdom and the European Union have been agreed that once the UK ceases to be a Member State of the EU on 29 March 2019, it will enter into a ‘stand-still’ period during which the UK will continue to be bound by its existing EU obligations (alternatives to this approach were explored in an earlier blog). The rationale behind this is to avoid a ‘cliff-edge’ departure which would otherwise see tariffs and regulatory controls imposed on cross-border trade between the UK and the EU.

To the extent there has been disagreement between the two sides it has been on terminology – the EU refers to this as a ‘transition period’ while the UK insists on calling it an ‘implementation period’ – and duration – the UK sought a two-year period whereas the EU was only willing to agree a transition that would end on 31 December 2020 (coinciding with the end of the current budgetary ‘multi-annual framework’). The UK agreed to the EU’s offer of a transitionending in December 2020.

However, the duration of the transition period has come back to the fore of the negotiations for two reasons.

The UK believes that the issue of how to avoid a hard border on the island of Ireland can only properly be resolved in the context of the negotiations on the future economic relationship. The UK had hoped that this might be negotiated in parallel with the withdrawal arrangements. However, the EU has insisted that it is only the framework for future cooperation that can be discussed in the context of the withdrawal negotiations meaning that the terms of a future economic relationship can only be agreed once the UK leaves. As long as the UK is in transition, the issue of frontier controls on the island of Ireland does not arise. But with the transitional period ending at the end of 2020, EU negotiators have insisted on the need for a ‘backstop’ to ensure that if transition ends without a deal on a future relationship that meets the commitments made in the 2017 Joint Report, a ‘hard border’ in Ireland will be avoided. It is the failure to reach agreement on a backstop which is making negotiators on both sides reconsider a time-limited transition period.

The second reason for revisiting the duration of the transition period is that the pace of negotiations thus far, coupled with deep disagreement over the UK Government’s ‘Chequers Plan’ for a new UK-EU relationship, suggest that the transition period as currently conceived will be too short to allow for negotiations on a future relationship to be concluded. Taken together with the backstop issue, minds have turned to whether it would be prudent to extend transition,

In a recent European Policy Centre paper, Tobias Lock and Fabian Zuleeg make a strong case for the extension of transition, suggesting that a one-time one-year option to extend transition would be a workable solution.

In a new Research Paper, I explore three potential models for an extended transition:

  • A one-off option to extend transition for a year following the end of the initial transition period (the Lock and Zuleeg model)
  • A rolling or open-ended transition with an exit mechanism
  • An extended transition and implementation facility.

The Research Paper suggests that while Lock and Zuleeg make a good case, their proposal still risks a ‘second cliff-edge’ at the end of an extended transitional period if there is no agreement on a future relationship. A one-year optional extension may not give negotiators sufficient time to reach an agreement and might not create sufficient confidence to avoid the need to negotiate a backstop.

The most obvious way to avoid a backstop would be to keep the UK in transition unless and until a new economic partnership between the UK and the EU was agreed (provided also that this met the commitments on the Irish border agreed in the 2017 Joint Report). However, a perpetual transition would be politically unacceptable, be difficult to manage in budgetary terms and would conflict with EU law. It would, therefore, need an exit mechanism. This could be modelled on Article 50 itself and allow either the UK or the EU to notify the other of their intention to end the transition period. After a defined period, the transition period would come to an end with or without a deal on a future relationship.

A compromise solution draws on the existing draft Agreement and would allow transition to end once new agreements on customs and trade, foreign, security and defence policy are agreed and became applicable. Unlike an open transition, this facility would have to have a defined endpoint and a proposed deadline of 31 December 2022 is suggested. This is beyond the next General Election which is scheduled for 5 May 2022. The aim would be to give negotiators the flexibility to agree new partnership arrangements but with incentives to reach agreements early to avoid the need to continue to use the transition and implementation facility. The UK and EU could depart transition well before the facility expired. This does not ‘solve’ the Irish border issue. The Withdrawal Agreement must contain commitments which have already been made to avoid a hard border. The pressure remains on the UK to define how a future relationship with the EU would meet those commitments. But by expanding the time available to continue negotiations, at least some of the current pressure on negotiators may be released. The alternative is that no deal is done on withdrawal and the UK departs the EU without a Withdrawal Agreement. In which case the issue of frontier controls comes quickly back onto the agenda. Extending transition in the hope of finding solutions may be the least worst outcome.