Three things need to happen before the "deal" (or in technical terms, the EU Withdrawal Agreement and the accompanying Political Declaration on future EU/UK trade relations (the "Withdrawal Treaty")) can come into effect, implementing the transitional period which will avoid a cliff-edge hard Brexit on 29 March:
- Endorsement by the EU Council – achieved on 11 January
- Approval of the UK Parliament and
- Ratification by the European Parliament
The EU Council endorsed the draft on 11 January, satisfying the first step, so on the EU side, the Withdrawal Treaty has passed to the European Parliament for ratification. At the European Parliament, the rules require the support of MEPs in 72% of the EU27 (i.e. at least 20 member states) representing 65% of the total population of the EU27. Approval of each of the national parliaments of each individual member state is not required so they do not have a veto. The European Parliament is due to be dissolved on 18 May ahead of the European elections on 23-26 May, but the EU is expected to wait until the Treaty has been approved by the UK Parliament before asking the European Parliament to vote on it.
UK – "meaningful vote"
On the UK side, as we now know, the UK Parliament will have another "meaningful vote" on the draft Withdrawal Treaty on or before 12 March. What does "meaningful vote" actually mean in practical terms?
- A Government motion in the House of Commons to approve the draft Withdrawal Treaty, followed by (assuming that motion is passed):
- Approval of both Houses (Commons and Lords) of the EU Withdrawal Bill (the legislative basis for implementation of the Withdrawal Treaty in the UK).
- Government ratification of the Withdrawal Treaty. Under the usual rules, Government cannot ratify the treaty until at least 21 sitting days following the Commons vote on the motion have elapsed.
With less than a month to go before Brexit day on 29 March and the date for the House of Commons vote on the Government motion still not confirmed, this process evidently cannot be completed before 29 March unless the Government decides that exceptional circumstances entitle it to ignore the 21-day rule (which is theoretically permissible). Nor is there likely to be sufficient time before 29 March to pass the EU Withdrawal Bill, which is required to implement any deal reached with the EU. So, it looks increasingly likely that the Government will be forced to apply to extend Article 50 in order to complete the UK Parliamentary process.
Article 50 extension
Extension of Article 50 does require unanimous approval of all other Member States, and it is not a given that it will be granted, or at least not necessarily on the terms hoped for by the UK Government. EU leaders have made it clear that an extension to allow the UK to extract further concessions from the EU on the Irish backstop is unlikely to succeed, but a short extension to accommodate UK Parliamentary procedures is more likely to be granted without strings attached. The EU may also look sympathetically upon a delay to permit a second UK referendum, which now has official Labour Party support. The possible dates for an extension include:
- 18 May, the latest possible date for European Parliament approval in the current session
- 23-26 May, the European elections (assuming the deal has been approved by the European Parliament)
- 1 July 2019, when MEPs take up their seats in Parliament; or
- Beyond July 2019, more likely if there is no UK Parliamentary approval. If the deal is voted down in the House of Commons, this would trigger a subsequent vote on whether to request an extension, and would suggest that a fundamental renegotiation is needed, amid significant political fallout in the UK (a change of government for example). In this case, commentators on the European side have suggested a long period to allow a realistic period for a renegotiation and to avoid the UK seeking multiple extensions.
So as ever, it all hinges on the outcome of the meaningful vote on (or before) 12 March. More news is expected on that later this week. Although a delay increasingly appears to be the most likely outcome, it does not mean that the prospect of a "no deal" Brexit has gone away; it is still the default position in the absence of agreement being reached with the EU on a deal and/or an extension of time. Whilst neither side wants "no deal", there is still a chance it could happen (probably more by accident than by design).
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Travers Smith LLP
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