Brexit: Extend, Suspend, Mend, Amend or Pretend?

Following the decision of the House of Commons on 15 January 2019 to reject the draft Withdrawal Agreement between the EU and the UK, what happens now?

Extend?

Article 50 of the Treaty on the European Union provides that the negotiating period for withdrawal negotiations is fixed at two years. 

The UK could ask the 27 remaining EU Member States to extend this two year negotiating period. This period started when the UK served its notice of withdrawal on 29 March 2017. It will expire at 23:00 hours UK time on 29 March 2019. 

Neither the EU nor the remaining Member States may seek to extend the two years. Only the UK, as the State which has served the notice to withdraw, may ask for an extension. This is one of the few cards which the UK has that the EU does not have. Ireland has said that it will not object to an extension. 

The difficulty is that all the 28 Member States (i.e. the UK plus the 27 remaining Member States) must agree to the extension. The EU will want some evidence that an extension would make sense and could be useful.  But if the alternative is a no-deal Brexit then it would be very surprising if the 27 remaining Member States refused an extension. 

Many EU leaders have called on the UK to say what it now wants. Therefore having an extension would facilitate preparing the answer for the EU – that answer might be an amendment to the draft Withdrawal Agreement, an entirely new agreement, a no-deal Brexit, a second referendum or whatever.

Suspend?

Some commentators have suggested that the UK "suspend" the negotiation process. Legally, that is not possible. The EU and UK Member States may jointly agree unanimously that the process is extended or the UK may revoke the withdrawal notice but there is no pause button in EU law.

Mend or Amend?

The EU and the UK could agree to "mend" or "amend" the draft Withdrawal Agreement. If the UK could point to particular fixes which were acceptable to the remaining Member States then there might be a fixing or mending of the Withdrawal Agreement. This might take the form of, for example, an amendment to the Political Declaration, which is still in draft and is not a legally binding document so could be more easily amended than the Withdrawal Agreement which would be a treaty in due course. There could also be, for example, a supplemental exchange of letters or a promise to embody some changes in the next legally binding EU treaty. There could even be, but it may be somewhat problematical, a UK act of parliament which limits the backstop (a "hard stop date for the backstop") and the EU and Ireland would have to consider whether it would live with such a conditional agreement. Even if the EU remains steadfast to the notion that it would not "amend" the draft Withdrawal Agreement, it might mend the fences by having a separate document alongside it which would give some comfort.

Pretend?

It is also possible that the Draft Withdrawal Agreement could be repackaged as a new agreement.  After the European Constitution was rejected, about 80% of it re-emerged as the Treaty of Lisbon.  Much of the Draft Withdrawal Agreement could be re-packaged as a new agreement. So much of the debate has focussed on the Northern Ireland backstop, rather than anything else, so this is an option too and the focus would be on the Northern Ireland protocol element.

So, there are plenty of options: extend, suspend, mend, amend or pretend – all before we get to the end.

For further information, contact Dr Vincent Power, Partner, or any member of the EU, Competition & Procurement team at A&L Goodbody.

Date published: 17 January 2019