Journal

Brexit: Are we going to run out of time?

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Politicians and academics grapple with Article 50 two-year deadline

The EU membership referendum, which was held on 23 June 2016, saw the UK vote to leave the EU. In order to complete this withdrawal, Article 50 of the Treaty of European Union (TEU) was triggered in March 2017, beginning a two-year time frame for the UK to settle its ‘divorce arrangement’. However, this Brexit saga involves a whole lot more work than can be comfortably completed in two years; it seems this time frame will not be sufficient.

This isn’t just my opinion: Sir Ivan Rogers, the former UK Permanent Representative to the EU, has noted that if the government wants a comprehensive deal, it could take ten years. Former Cabinet Secretary Lord O’Donnell also acknowledged that two years’ time is too short. Former judge and now professor Sir David Edward stated that “a long negotiation period would be necessary because the withdrawal from the Union would involve the unravelling of a highly complex skein of budgetary, legal, political, financial, commercial and personal relationships, liabilities and obligations”.

Though Article 50(3) provides that the two-year time frame could be extended by the European Council unanimously, is an extension feasible? For an extension to be granted, it must be unanimously agreed in the European Council, which is considered difficult. Alan Renwick, the deputy director of the UCL constitution unit, suggested that the government wants to avoid any further delay, because any delay will cause further uncertainties, especially to businesses. He further articulated that if the government could not get what it wants in the two-year time period, the government should pursue a transitional arrangement, or accept the hardest of hard Brexits.

A transitional arrangement might be the more desirable option for the UK. This arrangement would achieve the UK aim of having a smooth transition between the past in the EU and the future in the new arrangement. The Brexit Committee’s first report also stressed the need for a transitional arrangement to ensure that mutually beneficial cooperation is not brought to an abrupt end by Brexit. This is what the UK government has opted for.

The withdrawal negotiation’s first phase is complete, and we’re now preparing to move into the second phase of the negotiation. This concerns the transitional arrangements as well as the overall understanding on the framework for the future relationship.

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But, future trade talks, the heaviest issue, will be postponed and the transitional arrangement will take priority. The UK Prime Minister, Theresa May, has stated that the change to the final Brexit date will only occur in exceptional circumstances — so, if we are to believe this, there is still a possibility, but it’s highly unlikely, for the UK to seek an extension. It is clear, for now, that the UK has opted for a transitional arrangement rather than the extension of the two-year time period.

Another question that has been raised hypothetically is: is the revocation of the withdrawal possible?

Article 50 is silent on whether the withdrawing members state can revoke the notification of withdrawal, and therefore continue to remain in the Union.

This silence affords several interpretations. Christophe Hillion, a professor of institutional law in the EU, suggested that “once the notification is given, there is no turning back; the treaties will cease to apply either upon entry into force of the withdrawal agreement or at the end of the two-year period”, even without a ‘deal’.

The reason that the right to revoke the withdrawal should not be given is the fear of abusing the right to revoke by the withdrawing state. If the withdrawing state does not get the deal it wants, it can revoke the withdrawal, and then re-trigger the notification to buy extra negotiation time without needing the unanimous agreement of other members. This is not possible as the EU will not change its mind by giving a more ideal deal for the withdrawing state just because the withdrawing state revokes and re-triggers the notification.

Scottish cross bencher Lord Kerr, who was involved in drafting Article 50, also said that the notification of withdrawal is irrevocable, but noted that, legally, the EU could not prevent a withdrawing state to change its mind, but might exert political pressure to the withdrawing state.

The argument for which the withdrawing state can revoke the withdrawal, put forward by Oxford prof Paul Craig is that the withdrawal decision will no longer be valid because of the state’s changing of mind, and the original decision must have been changed in accordance with national constitutional requirements. The changing of decision which is in compliance with the constitutional requirements might be the second referendum on the final Brexit deal. But, it’s rather absurd for the Member State to suddenly change its mind after the final deal has been struck, because all of the efforts put in the negotiation will go to waste. If the citizens of the withdrawing state could not agree on the final deal, then a re-negotiation should be done, instead of withdrawing the withdrawal.

In the UK context, it would high unlikely for the UK to change its mind and decide to remain in the EU. Theresa May has affirmed the UK’s government position, stating that ‘Brexit means Brexit’. Even though it is still unclear what will happen in the future as the withdrawal process continues, it is politically undesirable for the UK to change its mind. This issue has not been tested by the UK yet and most likely will not be tested in the near future.

Juhn Tao NG is a law student at the University of Liverpool.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

33 Comments

Not Amused

I always advise aspiring lawyers to stay away from Brexit.

It is much more politics than it is law. But it is also extremely risky to express a view in an interview. The prevailing narrative that young people have been drilled in is that “clever people did not vote leave”. But that’s just not true. So it would be very easy for a young person to accidentally say something extremely offensive (because much of the remain argument is actually rather rude) to the wrong person at a crucial time.

Better to stick with important and relevant legal issues – not esoteric elements of foreign trade.

Anonymous

What I have perceived from this article is the discussion on Art 50 timeframe provision. The author gathers other academic’s opinion in order to support his view that 2 year-time might not be enough and revocation is not possible. I did not see any heavy one-sided political elements in this.

Not Amused

I don’t criticise the authors of these pieces or ever address them directly. But I do occasionally repeat here advice that I give one on one to other young people.

It’s just a more practical way of getting that advice to more ears.

Corbyn. Symphathiser

Not Amused: Brexit means freedom.
Also Not Amused: People should not criticise Brexit for fear of their career.

I also love that the most publicised and important geopolitical action Britain is taking for a generation is apparently ‘esoteric’. Young people almost certainly have a more coherent and cohesive view of Brexit than our government does.

Trumpenkrieg

“Muh immigrants are saintly and holy we need a never ending infinite stream of them entering the country”

“Muh economists are a priestly caste whose pronouncements have never been wrong about anything ever”

“Muh any expression of nationalism must be suppressed or else gas chambers will be erected overnight”

Very coherent, very cohesive.

Corbyn. Sympathiser

Once again, world class dunce Trumpenkrieg argues against the fantasy opponents in their own minuscule mind and think that adding ‘muh’ Is the height of comedy and argument. Unsurprising from someone who thinks the act of reading is a sinister Marxist plot, though.

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

Anonymous

Clever people did not vote leave. You are not clever – you are just pompous and misguided.

K&E rat.

It is not about the law? Have you recently been following the Parliamentary select committies’ work on Brexit? In the end, everything will be about the law and politics will not really matter.

Commercial barrister

Ridiculous. It’s the most important constitutional change since we joined the EC, and it necessitates the framing of an enormous amount of new law. Of course lawyers’ views on Brexit are relevant. And political views, sensibly and respectfully expressed in an appropriate context, are not going to kill your career.

Anonymous

staying away from brexit in an interview context is wise.

UNIVERSITY OF LIVERPOOL

TOP TOP TOP LAW SKOOL

Anonymous

LOL at least it’s a Russel group university.

K&E rat.

Which does not mean a lot. Look into the history of how some or even many Universities joine RG in the first place. There are quite a few Universities outside the club who are much more deserving to be in it.

Scouser of Counsel

Nothing wrong with UofL.

Plenty of counsel and judges went there.

Anonymous

Mandem got go get them Brexit bees for my honeys.

Anonymous

She go get slap bang until sore brother

...

why would no one just appreciate this piece of work instead of arguing other stuff?

Anonymous

It is about neither the law nor politics.

The deal will win. Common sense will actually prevail

Good

An excellent opinion and analysis! I suppose the writer is an Asian, and it is fascinating that he can derive such standard of analysis on the Brexit-related issue. There’s a fine line between politics and law, and Brexit issues have been politicised very much. But, one cannot deny that Brexit is governed by Art 50 and it is definitely law related. By the way, I did not see the writer being partisan.

Brexiteer (aged 65)

What I want from Brexit:

– Fewer foreigners in England

-Fewer benefit claimants

-Fewer human rights claimants

-The death penalty for murderers and paedophiles

– The restoration of imperial weights and measures

– The restoration of £sd

– Steam trains

– Grammar schools

– Caning in schools

– Fish and chips in newspaper

– A manufacturing sector with full employment

– Free further education

– Commonwealth free trade

– A blue British passport.

Is that too much to ask?

Anonymous

Nearly all the things on your wish list are aims of Corbyn’s Labour Party.

Up the Workers! Back to the ‘70s!

Corbyn. Sympathiser

Almost none of those things are Labour Party objectives.

Anonymous

Of course you’re right. The list was so reminiscent of the 1970s that I accidentally mentally added in far-left entryism, wholesale nationalisation, abusive trade union power, vile anti-Jewish bigotry, rampant misogyny, campaigns against Western ‘imperialism’, and reflexive support for Moscow no matter how appalling the regime there.

The present Labour Party is in no way a backward looking, deeply unpleasant political movement nostalgic for decades very long gone. Nope.

Anonymous

Shut up you Tory c*nt. I bet you’d bring back slavery if you could.

Anonymous

The authentic voice of the Labour Party in 2018.

Anonymous

Grenfell deaths are on all tory voters. Wouldn’t have happened under Corbyn. Murderers.

Anonymous

Using the memories of victims of a disaster to promote your party.

Nice.

Anonymous

If you really believe what you have posted, you have wasted your education. The Grenfell tragedy had nothing to do with the colour of the National, or Local Government.

Corbyn. Sympathiser

I’m glad that you accept that these are not Labour goals and that your negative conceptions of Labour are entirely borne of your own personal delusions. I respect your candour and accept your surrender.

Anonymous

“Delusions”? Interesting view of what I listed.

Taking just one, Labour’s anti-semitism, do you think it’s a “delusion” to believe that’s real and a problem?

I thought you were better than that.

Corbyn. Symphathiser

I’m just having a needle at your sarcastic message – it’s a joke.

Yes, anti-semitism is a problem that the Labour Party has been slow in addressing. It is right that anyone who holds anti-semitic views should be expelled from the Labour Party. Whilst those who hold such views are a tiny minority in our party, those who do anything to make Jewish people (or people of any social or religious minority) are not to be tolerated in our party. The leadership has been clear on this.

Anonymous

👍

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