5th November 2019
Here we go again.
The United Kingdom government has announced that, if the Brexit happens on the basis of the current draft withdrawal agreement, then the transition period will not be extended beyond its current expiry of 31 December 2020.
(By way of background, the “transition period” is, in effect, a standstill period, with the UK still being bound by European Union law but outside the EU.)
Here is a tweet from a political reporter:
Latest Brexit guarantee from Downing Street: Categorically rules out extending transition beyond 2020.— Jack Maidment (@jrmaidment) November 4, 2019
Means the EU and the UK will have less than a year to hammer out and finalise a free trade agreement.
PM's spox: ‘The government will not be extending the transition period.’
And here is a tweet from the current trade secretary:
We will not be extending the Brexit transition period beyond 2020.— Liz Truss (@trussliz) November 4, 2019
The British people have waited long enough for Brexit.
We will be able to negotiate a good free trade deal with the EU and other partners in that timeframe. 🇬🇧 🌎 #VoteConservative #globalbritain
Where do you begin with this?
Let’s start with the current draft withdrawal agreement.
Article 126 provides for a transition period:
“There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.”
Article 132(1) then provides for how that extension can be extended by agreement:
“Notwithstanding Article 126, the Joint Committee may, before 1 July 2020, adopt a single decision extending the transition period for up to one or two years.“
(The “Joint Committee” will be the all-powerful, though potentially non-transparent UK-EU entity that supervises the transition period.)
(EDIT – please note that in the first draft agreement’s protocol on Ireland and Northern Ireland, there was also a further provision which provides for one situation when the UK can make a request for an extension – but this provision was removed from the revised version of the draft agreement:
The United Kingdom, having had regard to progress made towards conclusion of the agreement referred to in Articles 1(4) and 2(1) of this Protocol, may at any time before 1 July 2020 request the extension of the transition period referred to in Article 126 of the Withdrawal Agreement. If the United Kingdom makes such a request, the transition period may be extended in accordance with Article 132 of the Withdrawal Agreement.
You can see that this then referred back to two other provisions.
Article 1(4) of that protocol which provided:
The objective of the Withdrawal Agreement is not to establish a permanent relationship between the Union and the United Kingdom. The provisions of this Protocol are therefore intended to apply only temporarily, taking into account the commitments of the Parties set out in Article 2(1). The provisions of this Protocol shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement
And Article 2(1) of that protocol which provided:
The Union and the United Kingdom shall use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part. )
In essence, what all that legal prose provides is that there is a transition period to 31 December 2020, that the transition period can be extended by agreement for one or two years the UK has a specific basis for asking for an extension.
The maximum by which the transition period can be extended until is 31 December 2022.
So both the UK and EU, within the draft agreement itself, contemplate potential extensions.
And both the UK and EU contemplate implicitly that this may not be achieved (this can be inferred by the “best endeavours” provision, which presupposes potential failure by only holding the parties to trying for that outcome, not achieving it).
There are a couple of crucial legal-procedural points to note.
First, once the UK is out of the EU then Article 50 will cease to apply.
This means that any amendments to the withdrawal agreement will (probably) not be capable of being done with Article 50 as a legal basis.
The draft withdrawal agreement itself at Article 164(5)(d) appears to provide that the Joint Committee cannot amend the withdrawal agreement in respect of several matters, including the length of the transition period.
In other words, the EU may not find it legally easy to agree to amendments to the set transition period(s) once the UK leaves.
There will therefore be, under the current draft agreement, a genuinely hard long-stop date for the transition period of 31 December 2022.
Second, the date of 31 December 2020 was in the first published draft agreement (of November 2018).
It has remained unchanged, even though an entire year has passed, eating into that envisaged period.
What was, in November 2018, a generous-ish transition period of nearly two years will, come a departure on 31 January 2020, a far tighter period of just eleven months.
There is no reason to believe that the UK is now in a better position to achieve in eleven months what it expected to achieve in nearly two years.
The EU has its own reasons, tied to the budget cycle and the financial settlement, for sticking to the 31 December 2020 (and 2021 and 2022) dates, but the fact remains: the UK has lost over a year for the transition since the publication of the first full draft.
And now we return to the government “ruling out” an extension.
On a legal(istic) point, once the agreement is executed, it may not be legally possible for the government to fetter its own discretion in respect of applying for an extension.
There is an argument that it is bound to keep its right to request an extension under review, regardless of any policy on requesting extension.
And if the UK faces a “no deal” Brexit on 31 December 2020 then either parliamentary intervention (another Benn Act) or judicial intervention (to oblige the government to consider exercising its discretion) would be virtually certain.
But moving on from law and legalism, there is no sensible way the UK government would be able to put in place a full trade agreement in eleven months.
(It has, for example, taken a year for there to be the changes to the Ireland protocol in the current draft.)
There are dozens of areas of trade and policy which will need to be negotiated – to grasp just some of the practical issues which need to be addressed just look at Part Three of the withdrawal agreement.
And those practical issues are in addition to wider agreements on tariffs and other measures.
And any trade agreement, in turn, will need to be ratified by all EU27 states, some including referendums.
All in eleven months?
Getting close to agreement on all these matters by the hard long-stop date of 31 December 2022 is, as they say, ambitious (that is, highly unlikely).
Either the transition period will have to be extended or a “No Deal” Brexit has only been postponed and will now happen on 31 December 2020.
So what explains the statements from Number 10 and from the trade secretary that, regardless of any circumstance, the transition period will end on 31 December 2020?
The only possible explanations can be those two enduring features of government Brexit policy: ignorance and dishonesty.
A trade deal cannot be agreed by 31 December 2020, and to contend that it can be either means you do not know what you are talking about or you are knowingly misleading the media and the voters.
Over three years after the referendum, the government still has not learned key lessons of Brexit: of being realistic about what can be done, and about being honest about what is possible.
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