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How we got to the second Article 50 extension

On 10 April 2019 the European Council agreed to a second extension of Article 50 of the Treaty on European Union (TEU) until 31 October, with the possibility of the UK leaving earlier if the November 2018 Withdrawal Agreement is ratified (on the first day of the month after ratification). The European Council (EUCO) Conclusions on 10 April and the Decision on 11 April included a provision for UK withdrawal on 1 June if it does not hold European Parliament elections and has not ratified the Withdrawal Agreement, and referred to a review of progress at the European Council meeting on 20-21 June.

The Conclusions and the Decision formalising them included reference to the UK commitment to act in a constructive and responsible manner during the extension period in accordance with the duty of ‘sincere cooperation’ and noted that the UK would remain a Member State “with full rights and obligations”, and also that it has the right to revoke its Article 50 notification at any time. Under the ‘since cooperation’ principle (set out in Article 4.3 TEU), the UK must ensure that it fulfils Treaty obligations, facilitates the achievement of the EU’s objectives and refrains from any measure which could jeopardise them.  In other words, during the extension period the UK is expected to behave ‘nicely’ in light of its impending departure and cooperate with EU processes as long as it remains a Member State. 

The Conclusions also referred to the other 27 EU Member States (the EU27) holding meetings without the UK to discuss matters concerning the situation in the EU after Brexit. This would be in addition to any meetings held under Article 50 TEU to discuss the Brexit process. 

The EU will not renegotiate the Withdrawal Agreement …

The Withdrawal Agreement endorsed by the EU and UK Government in November 2018 is about the terms of the UK’s withdrawal from the EU and does not aim to establish a permanent future relationship between the EU and UK. It provides in Article 184 that the future relations agreement(s) will be negotiated during the transition/implementation period following UK withdrawal. It/they will be subject to ratification by the European Parliament and in many cases by the national parliaments of the EU27.

The EU has insisted since the end of 2018 that it will not renegotiate the Withdrawal Agreement.

… but is willing to reconsider the Political Declaration on future relations

Donald Tusk referred to concerns raised by some Member States “that the UK’s continued presence as a departing EU country would pose risks for the functioning of the EU27 at a time of key decisions on its future”. To address these risks he said the UK would have to agree that there would be no re-opening of the Withdrawal Agreement and no start of the negotiations on the future, except for the Political Declaration.

The European Council Conclusions on 10 April state that should the UK’s position “evolve”, the EU is “prepared to reconsider” the Political Declaration on the framework for the future UK-EU relationship “in accordance with the positions and principles stated in its guidelines and statements, including as regards the territorial scope of the future relationship”.

What is the Political Declaration?

The Political Declaration is not part of the Withdrawal Agreement, but a non-legally binding document attached to it, which the Withdrawal Agreement has “taken into account” in accordance with Article 50(2) TEU. The Political Declaration is discussed in Commons Briefing paper 8454, The Political Declaration on the Framework for Future EU-UK Relations, 30 November 2018.

The Political Declaration calls on the UK and EU to agree an “an ambitious, wide-ranging and balanced economic partnership”, which would be “comprehensive, encompassing a free trade area as well as wider sectoral cooperation where it is in the mutual interest of both Parties”. It leaves the details to be decided during future negotiations and keeps a range of options open. 

The economic partnership would cover trade in goods, trade in services and investment, and a number of sectors including financial services, digital, transport, energy and fishing. There are also sections on movement of people and procurement. It has provisions on a future security partnership, including law enforcement and judicial cooperation in criminal matters, and aspects of foreign policy and defence. And it proposes that an overarching institutional structure will be underpinned by mechanisms for dialogue and arrangements for setting the direction of and implementing the future relationship. Dispute resolution would be based on the dispute resolution mechanism in the Withdrawal Agreement.

Progress is in the UK’s hands

The EU’s priorities at the moment include the European Parliament elections on 23-26 May, and longer term ambitions such as job creation, growth and investment, managing migration and mitigating security threats.  The UK political situation and Brexit are not top of its agenda but neither does it want the UK to leave without an agreement.  The EU is continuing with its no-deal preparedness plans.

In his remarks after the April European Council, EUCO President Donald Tusk said the “flexible extension” granted to the UK would mean an additional six months during which “the course of action will be entirely in the UK’s hands”.

It can still ratify the Withdrawal Agreement, in which case the extension will be terminated. It can also reconsider the whole Brexit strategy. That might lead to changes in the Political Declaration, but not in the Withdrawal Agreement. Until the end of this period, the UK will also have the possibility to revoke Article 50 and cancel Brexit altogether.

Mr Tusk concluded that the “extension is as flexible as I expected, and a little bit shorter than I expected, but it’s still enough to find the best possible solution. Please do not waste this time”.

What has the Government being doing?

Talks between Government and Opposition

For around seven weeks the Government and Opposition have been engaged in talks with a view to reaching a compromise agreement on the shape of the UK’s future relationship with the EU. The Prime Minister’s aim is to break the current Brexit impasse, leading to Parliament agreeing to the negotiated Withdrawal Agreement and leaving the EU. 

There has been some opposition to the talks from both parties.  A group of senior Conservative Members, including thirteen former Cabinet Ministers, warned Theresa May against agreeing any cross-party Brexit deal that involved a customs union with the EU, which is Labour policy, but which they said would risk losing the “loyal middle” of the Conservative Party. Reports suggest some progress has been made but there has been little concrete evidence of this.

Amid speculation that the talks might be brought to an end, reports on 14 May referred to a Government announcement that the discussions would continue, and that Government ministers had set out details of the compromises the Government was prepared to consider to secure an agreement and allow the UK to leave the EU with a deal as soon as possible.

However, on 17 May there were reports that talks between the Conservatives and Labour to find a compromise had ended without agreement.

Another attempt to get parliamentary approval of the Withdrawal Agreement

The Government intends to introduce the Withdrawal Agreement Bill (WAB), which is necessary to implement the Withdrawal Agreement in UK law, in the week beginning 3 June, with the aim of achieving Royal Assent by the summer parliamentary recess.  On 19 May the Prime Minister announced in the Sunday Times that the Bill would be “a new, bold offer to MPs across the House of Commons, with an improved package of measures”. She would not “be simply asking MPs to think again” but would “ask them to look at a new and improved deal with fresh pairs of eyes — and to give it their support”. It is thought that the new offer will include guarantees on workers’ rights, the environment and, according to The Telegraph, 19 May, “It promises to incorporate Tory MP Sir Hugo Swire’s January proposal to give Parliament the final say on implementing the backstop as well as obliging the Government to seek alternative arrangements to the backstop by the end of 2020”.

If the Bill is voted down at second reading, Theresa May has said she will stand down as Prime Minister.  In this event, the 1922 Committee executive and Mrs May would meet again to discuss the timetable for her departure.

Oliver Robbins in Brussels

The Prime Minister’s Europe Advisor, Oliver (Olly) Robbins, who heads the official-level Brexit negotiating team, has been in Brussels to discuss “possible changes to the political declaration” based on what has been agreed in the cross-party talks, and to ascertain how quickly the Political Declaration could be changed. Mr Robbins met Donald Tusk’s chef de cabinet, Piotr Serafin, and Council Secretary-General Jeppe Tranholm-Mikkelsen (14 May), and at the Commission the deputy Brexit negotiator, Sabine Weyand (15 May).

But no detailed information is available on Olly Robbins’ discussions. The Government is reported as saying his mission is largely to “keep channels open” rather than secure anything concrete. The Telegraph reported that he was “’stress-testing’ new Brexit texts that have emerged from more than six weeks of talks in Westminster”. DexEU Secretary Stephen Barclay told the Lords EU Committee on 15 May only that Mr Robbins was talking to the EU about future security cooperation.

Brexit preparations

No deal preparations

The Government’s most recent no-deal guidance is dated 12 April, although DexEU Minister James Cleverly said in a written answer on 16 May: “As a responsible government we’ve been preparing to minimise any disruption in the event of no deal for over two years and will continue to prepare for all Brexit scenarios”.

The UK Government’s no-deal preparations and the possible consequences of a no-deal Brexit are discussed in Commons Briefing Paper (CBP) 8397, What if there’s no Brexit deal? updated 8 February 2019.

The EU’s no-deal preparations are discussed in CBP 8547, EU preparations for a no-deal Brexit, 12 April 2019.

Brexit legislation

A ‘no deal’ Brexit requires legislation to ensure the UK has measures in place to replace EU legislation, which will no longer apply. Some of the primary legislation needed to facilitate this has been passed (e.g. the Taxation (Cross-border Trade) Act 2018; the Sanctions and Anti-Money Laundering Act 2018, the Haulage Permits and Trailer Registration Act 2018, the Nuclear Safeguards Act 2018 and the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019).

Other Brexit Bills are going through Parliament (e.g. the Trade BillAgriculture Bill, Immigration and Social Security Co-ordination (EU Withdrawal) Bill, Fisheries Bill, Financial Services (Implementation of Legislation) Bill). 

A few are draft Bills and are expected to be included in the next Queen’s Speech (e.g. the Environmental Principles and Governance Bill 2017-19 and the Animal Welfare (Sentencing and Recognition of Sentience) Bill).

The European Statutory Instruments Committee (ESIC) has made progress in dealing with EU exit SIs under the EU Withdrawal Act 2018 and other Acts of Parliament. On 4 April Leader of the Commons Andrea Leadsom said the programme of Brexit Statutory Instruments was “almost complete” and that the Government expected to lay about 550 in total. According to Hansard Society figures:

528 Brexit-related SIs have been laid since the EU (Withdrawal) Act received Royal Assent on 26 June 2018. Of these:

  • 362 have been laid using powers in the EU (Withdrawal) Act 2018 only;
  • 103 have been laid using powers in other Acts of Parliament;
  • 63 have been laid using a combination of powers in the EU (Withdrawal) Act 2018 and in other Acts of Parliament.
Treaty continuity programme

The Government is continuing with its ‘treaty continuity programme’ in which it aims to implement ‘replacement’ treaties for current EU agreements with third parties, so that the UK can continue to trade, for example, with these states on a similar basis to now but in a bilateral context. The programme aims to prepare the UK for any exit scenario, with a view to the replacement treaties entering into force either at the end of the transition/implementation period or on a no-deal exit day.

Progress in this is programme is discussed in:

Parliament’s role in scrutiny of treaties and treaty making (now and in the future)

The parliamentary scrutiny of the replacement agreements and Parliament’s possible role in future treaty-making is considered in CBP 8509, Brexit: parliamentary scrutiny of UK replacement treaties, May 2009.

Prospects for changes to the Political Declaration

In its Response to the 12 March 2019 vote on the Withdrawal Agreement and Political Declaration: next steps for Parliament, the Exiting the EU Committee concluded on 13 March:

13. Any extension to the Article 50 process will need to be sufficient for the purpose of identifying the way forward that the House of Commons can support; negotiating any subsequent changes to the Political Declaration to provide sufficient clarity about the future relationship between the UK and the EU for Parliament and the public, so that the House of Commons can approve the Withdrawal Agreement and Political Declaration;

The first extension did not result in “identifying the way forward” and there were no negotiations on changes to the Political Declaration. The Government now has more time to discuss and agree changes, but political obstacles remain and it is not clear what has been agreed in the cross-party talks. It is also not clear what the EU would accept in a reconsideration of the Political Declaration, although the signs are that it will be broad-minded. The April EUCO Conclusions imply that the basis for changes is still the guidelines of 23 March 2018 on the Political Declaration.

The Political Declaration does not pre-empt the detailed negotiation of the future agreement(s), which will be carried out under a different EU Treaty base once the UK has left the EU. It currently envisages a “balanced, ambitious and wide-ranging free trade agreement”. The European Parliament Brexit coordinator Guy Verhofstadt said on 27 March 2019 that the whole EP agreed:

… that we are open to having this agreement with Britain, and that we are open to change the political declaration in two senses. First of all, in that we can make it more binding for both parties than only a declaration. Secondly, in that we can put inside this political declaration a far more intense relationship between the EU and the UK than the relationship that is foreseen in the political declaration at this moment.

Possible options for the future UK-EU relationship

The detailed negotiations of the UK’s future relationship with the EU will be during the transition/implementation period if the UK leaves under the terms of the Withdrawal Agreement, with a view to one or more agreements entering into force immediately or as soon as possible after the end of transition.

If the UK leaves without the Agreement, it is not clear when any future relations negotiations with the EU would start or finish.

Future options for EU-UK relations are discussed in:

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