This is a fast-moving issue and should be read as correct at the date of publication (20.04.20).
The coronavirus has had an impact on the negotiations between the UK Government and the EU. This has led some to consider the desirability of an extension to the Brexit transition period. The Government has repeatedly stated that it does not intend to request any extension.
This Insight sets out the legal and procedural hurdles – both in the Withdrawal Agreement and in UK domestic law – to any extension of the UK’s post-Brexit transition period with the EU.
What is the current position?
The UK is currently in a transition period, having left the EU at the end of January 2020 with a Withdrawal Agreement (WA). During this period, the UK continues to follow nearly all EU law (with a few exceptions) despite not being a Member State. This period is currently set to expire at the end of December 2020.
A one-off extension to the transition period is possible. Such an extension can be for no more than two years. It would need to be agreed by a decision of the UK-EU Joint Committee before 1 July 2020. The UK and EU would need to agree both the length of an extension and other terms, such as the UK’s financial contribution to the EU budget for the extended period.
The time available for the future relationship negotiations is already relatively short, but these pressures have been exacerbated by the global situation with the coronavirus. The UK Government has so far been opposed to any extension of the transition period. In January 2020 it legislated to ban Ministers from agreeing to any extension proposal. However, the Institute for Government and others have argued this issue ought and / or is likely, to be revisited.
The rules in the Withdrawal Agreement
Article 126 of the WA stated that there would be a transition period, starting when the UK leaves the EU and expiring on 31 December 2020.
Article 132 of the WA allows the EU-UK Joint Committee to “adopt a single decision extending the transition period,” for no more than two years. However, any such decision must be taken before 1 July 2020.
The Joint Committee (JC) is a body created by the Withdrawal Agreement. Article 166 of the WA requires decisions of the JC to be taken by “mutual consent” of the UK and EU. It first met – by teleconference rather than in person because of the Coronavirus outbreak – on Monday 30 March 2020. This is allowed by agreement of the co-chairs under Rule 4.2 of Annex VIII of the WA.
The UK’s co-chair of the Committee is Michael Gove, the Minister for the Cabinet Office.
The domestic ban on extending transition
Section 15A of the EU (Withdrawal) Act 2018 prohibits UK Ministers from agreeing to an extension of the transition period in the JC. This provision was added to that Act by section 33 of the EU (Withdrawal Agreement) Act 2020.
This means that, if the Government wanted to agree to an extension in the JC, it would first need to make sure that section 15A was repealed in domestic law. This would mean first having to pass a further Act of Parliament.
Section 15A does not prevent a UK Government Minister from discussing or proposing an extension of the transition period. It is only the formal decision to extend that is prohibited.
The domestic ban on using written procedure in the Joint Committee
Decisions of the JC can be taken two different ways under Rule 9 of Annex VIII of the WA. Either they can be taken at a formal JC meeting, or they can be taken in-between meetings using “written procedure” if both parties agree.
Major policy decisions are normally taken by EU-related bodies in formal meetings, but sometimes written procedure is used where there is time pressure and/or it is not practical to meet. For example, the European Council’s decision of 28 October 2019 – to extend Article 50 by a further three months – was taken under written procedure. The previous two extensions had been decided upon at European Council summits.
Section 15C of the EU (Withdrawal) Act 2018 prohibits UK Ministers from agreeing to use written procedure in the JC. The provision was added to the 2018 Act by section 35 of the EU (Withdrawal Agreement) Act 2020. The UK Government’s Explanatory Notes from December 2019 said this provision would “ensure  that decisions made by the Joint Committee are made by a Minister in person” and that this would “ensure there is full ministerial accountability, including to Parliament, for all decisions made in the Joint Committee”.
Although section 15C prevents written procedure from being used, it does not follow that JC decisions cannot legally be taken except “in person”. The JC has only met by teleconference since being set-up, because of Coronavirus. Nothing in the WA or in domestic law seems to prevent a Minister from agreeing to take a JC decision via teleconference.
The domestic consequences of an extension
The Government has planned a range of changes in domestic law for the end of the transition period. The current Brexit legislation provides that these changes will come into force on “IP [implementation period] completion day.” This term is defined in section 39 of the EU (Withdrawal Agreement) Act 2020 as 31 December 2020 at 11pm Greenwich Mean Time.
This definition can be amended by regulations, but only for one narrow purpose. It can only be changed if the EU changes its laws about daylight saving time before the end of 2020. The change could then only be made to re-align the WA (which uses Central European Time) and the UK legislation (which uses Greenwich Mean Time).
Section 39 of the 2020 Act does not allow the Government to change IP completion day because of transition being extended. Therefore, Parliament would need to pass a further Act to facilitate those changes, if an extension were agreed.
Legislating during lockdown
To pass an Act of Parliament, each House (Commons and Lords) must sit to debate and approve a Bill at various stages. Acts can (and in recent years, frequently have been) passed by Parliament under greatly accelerated timetables. This included legislation about extending Article 50, about Northern Ireland, for an early general election, and in response to the coronavirus.
One additional challenge Parliament may face is debating and approving legislation during the current pandemic. As things stand, MPs will return from the Easter recess on Tuesday 21 April.
On Thursday 16 April the House of Commons announced plans for a “hybrid” chamber. Although the physical chamber would be limited to 50 or so socially-distanced MPs, a further 120 MPs would be able to participate “virtually” to question Ministers.
These arrangements would not (as things stand) allow MPs to vote remotely on a motion or on legislation. Only those physically present (or who have a proxy) could therefore register a vote.
What is happening in the UK-EU future relationship negotiations?, House of Commons Library
Constitutional implications of the Withdrawal Agreement legislation, House of Commons Library
About the author: Graeme Cowie is a researcher at the House of Commons Library, specialising in parliamentary and constitutional affairs.