Can the Withdrawal Agreement be renegotiated and can Parliament prevent ‘no deal’?

Vaughne Miller

The House of Commons has considered, and rejected, a Withdrawal Agreement signed by the UK Government and the European Union on three separate occasions. There is currently some dispute about the possibility of renegotiating that Withdrawal Agreement ahead of the UK leaving the EU.

This Insight will clarify whether there is scope for renegotiation of the November 2018 Withdrawal Agreement and whether the UK Parliament can prevent the UK leaving the EU without a deal.

The Article 50 time limit and extensions

The basis for the original negotiations and the resulting Withdrawal Agreement was Article 50 of the Treaty on European Union (TEU). This sets out the process for an EU Member State to leave the EU.

Article 50(3) states that the EU Treaties will, “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” of withdrawal, “unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”. 

The initial two-year period ended on 29 March 2019. But the UK Government and the other 27 EU Member States (the EU27) have unanimously agreed two extensions of this period and the new exit day is 31 October 2019. On this date the UK will leave the EU, except in the case of these scenarios: 

The Withdrawal Agreement has already been approved, ratified and implemented by the UK and EU during the current extension period. 
The Government has asked for and been granted another extension of Article 50.  
The Government has revoked Article 50 and the UK has stayed in the EU.

So how realistic is the claim that the Withdrawal Agreement can be renegotiated?

Theresa May stepped down as leader of the Conservative and Unionist Party on 7 June. It has been suggested that a future UK Prime Minister could renegotiate the Withdrawal Agreement and get a better ‘deal’ for the UK.  

Article 50 doesn’t rule out renegotiating or amending a withdrawal agreement during a period of extension. It doesn’t specify what should or shouldn’t happen during this time. In fact, the Withdrawal Agreement has already been ‘adapted’ to take account of the Article 50 extensions (references to 29 March have been replaced with the more flexible “date of entry into force of the Withdrawal Agreement”).

So, under Article 50 it is possible for the UK to try to renegotiate the Agreement. This might include, for instance, a renegotiation of the Irish backstop, or the obligation for the UK to pay a financial settlement to the EU.

What does the EU say about reopening negotiations?

European Council President Donald Tusk, Commission President Jean-Claude Juncker and EU27 leaders have consistently said the Withdrawal Agreement will not and cannot be renegotiated. On 11 June, for example, Mr Juncker said the Agreement was not a treaty between Theresa May and himself, but between the UK and the EU, and that it had to be “respected by whoever is the next British Prime Minister”. The EU has indicated that it would be open to further clarifications of and additions to the Political Declaration, but that the Withdrawal Agreement will remain as it is. 

Legal obstacles to re-opening the Withdrawal Agreement

There are further obstacles to renegotiation. Legally binding EU Decisions were adopted by the EU27 and agreed to by the UK when extensions to Article 50 were granted. These Decisions, taken under the provisions of Article 50(3), explicitly rule out the reopening of the Withdrawal Agreement.

The European Council Decision of 22 March and the EUCO Decision of 11 April set out conditions for extension: they both state that the extension: “excludes any re-opening of the Withdrawal Agreement”.  In a letter on 22 March and another on 11 April, the UK’s Permanent Representative to the EU, Sir Tim Barrow, confirmed UK agreement to the extensions and their conditions. 

The process for leaving the EU falls under EU law and until the UK leaves the EU, it continues to be a part of the EU legal order. These Decisions are therefore legally binding on both the EU27 and the UK. They can, of course, be revisited – but that would require the political will of the EU27 to revisit both these Decisions and the Withdrawal Agreement. At present such political will appears to be absent.

Can Parliament stop a ‘no-deal’ Brexit?

On 12 June Opposition MPs opposed to the UK leaving the EU without a deal tabled a Business of the House motion. It aimed to allow MPs to take control of parliamentary time on 25 June and possibly debate a Bill linked to preventing a ‘no-deal’ Brexit. The motion was defeated by 309 votes to 298, and has been reported as being the final means by which Parliament could prevent a no-deal Brexit. 

Is it wholly in Parliament’s gift to stop a ‘no-deal’ Brexit unilaterally – even if there is no majority in the House for ‘no-deal’?   

Because leaving the EU is an EU law process, at the national level a ‘no-deal’ Brexit can only be avoided if: 

The Government unilaterally revokes Article 50 TEU and stays in the EU; or 
Parliament approves and the Government ratifies the Withdrawal Agreement.

Nothing else that the Government or Parliament can do can be relied upon to stop a ‘no-deal’ Brexit on 31 October.

Parliament cannot act to prevent ‘no deal’ by itself. It needs to have the Government onside. To delay an automatic ‘no-deal’ exit it can seek to instruct the Prime Minister to ask the EU for another extension of Article 50. Parliament succeeded in doing this via the Cooper-Letwin Bill in March and tried to do so again on 12 June. But the granting of an extension and any conditions attached to it are for the EU27 to decide, not the UK Government or Parliament. 

The Article 50 time limit and extensions

So how realistic is the claim that the Withdrawal Agreement can be renegotiated?

What does the EU say about reopening negotiations?

Legal obstacles to re-opening the Withdrawal Agreement

Can Parliament stop a ‘no-deal’ Brexit?

Further reading