Brexit: State of Play Update

On the evening of Wednesday, 10 April 2019, the European Council, meeting in Article 50 format, agreed to extend the two-year article 50 period until 31 October 2019 at the latest – six months beyond the originally stipulated two-year timeframe. The new ‘flexible’ extension would allow the UK to leave the EU prior to that date, if an agreement can be reached on the deal in the UK Parliament.

The Council conclusions of 10 April outline the agreed position:

[…] an extension should last as long as necessary and, in any event, no longer than 31 October 2019. The European Council also recalled that, under Article 50(3) TEU, the Withdrawal Agreement may enter into force on an earlier date, should the Parties complete their respective ratification procedures before 31 October 2019.

The UK Prime Minister, Theresa May, originally requested a shorter extension until 30 June 2019, to simply allow time for ratification of the Withdrawal Agreement. However, the EU27 leaders have to date shown little faith in Mrs May’s capacity to secure parliamentary agreement in that timeframe. Added to this, there is also little appetite on the EU’s part to engage in a process of serial extensions, which would simply serve to create further ‘cliff-edges’ and exacerbate the continuing uncertainty over the UK’s withdrawal.

Mrs May has agreed to the longer ‘flexible’ deadline, noting that it is still her intention for the UK to leave the EU at the earliest possible opportunity. However, it is now clear that, barring a miracle of cross-party consensus in the coming weeks, the UK may still be a member of the European Union by the time of the European Parliament elections on 23-26 May 2019.

What next?

Theresa May’s government has indicated its continued support for the negotiated withdrawal deal, leading to the assumption that a new 'Meaningful Vote' on the UK’s EU withdrawal is intended. However, the Speaker of the House, John Bercow, has refused to permit further votes on a motion that is substantially the same as one previously rejected by Parliament. As the UK Parliament has now rejected two motions to approve the Withdrawal Agreement and Political Declaration on the Framework for the Future Relationship, and one motion on the Withdrawal Agreement alone, it is not clear that a further motion could be permitted at present.

Meaningful Vote IV and the Political Declaration

The European Council has stated that it will not reopen negotiations on the text of the Withdrawal Agreement, but the option of revising the Political Declaration is on the table. In its 10 April Conclusions, the EU27 has explicitly endorsed this possibility:

[…] if the position of the United Kingdom were to evolve, the European Council is prepared to reconsider the Political Declaration on the future relationship in accordance with the positions and principles stated in its guidelines and statements, including as regards the territorial scope of the future relationship.

Though the Political Declaration is not legally binding, any significant changes to it would likely be sufficient to allow for another motion to be put before the House of Commons.

The goal of revising the Political Declaration would simply be to agree in advance on the broad nature of a future relationship that would obviate the need for the backstop. In essence, the future relationship must eliminate both the possibility of new barriers between Northern Ireland and Ireland, and also between Northern Ireland and Great Britain. In practice, however, only one known solution can achieve this: a UK-EU customs union and, most likely, UK-wide alignment with those rules of the Single Market necessary to prevent disruption to North-South relations.

Red lines and cross-party consensus

For this plan to succeed, however, Mrs May would be forced to back down on a number of the red-lines set out at the commencement of the Brexit process – including the desire for an ‘independent trade policy’ for the UK.

While this is a significant political hurdle, it is notable that there has been a change in approach from Prime Minister May in recent weeks. On 2 April 2019, Mrs May offered to hold talks with the opposition leader, Jeremy Corbyn, and both sides report that the conversations are difficult, but continuing.

This difficulty stems in large part from the fact that the Labour Party position on Brexit ostensibly involves a much closer relationship with the EU than that proposed by Mrs May, including the negotiation of a ‘comprehensive UK-EU customs union’. With respect to trade policy, the Labour position requests only ‘an appropriate say on any new trade deal terms’. Mr Corbyn’s position on Single Market membership post-transition is somewhat more ambiguous, but Labour may be agreeable to alignment with Single Market rules, where necessary.

In the recent series of indicative votes held in the House of Commons, every tabled option was rejected by MPs, though the ‘least opposed’ option was that of a UK-EU customs union – losing by just three votes, and securing the support of the bulk of the Labour Party, as well as 37 Conservative MPs.

A cross-party consensus on the future relationship that eliminated the need for the backstop, and was acceptable to the EU, could be rapidly reflected in changes to the political declaration. However, if these cross-party discussions fail and no clear majority emerges for any of the available options, the situation becomes significantly more uncertain. In these circumstances, a general election or a further referendum - or both - may prove to be the only way forward.

Next steps

The flexible extension agreed with the European Council takes some of the immediate pressure off the UK, though Theresa May must still find a way to break the domestic deadlock, and there are still symbolic and self-imposed deadlines to contend with.

If the UK Parliament has not approved the Withdrawal Agreement by 22 May 2019, for example, it will be obliged to hold European Parliament elections, during the election period of 23 May 2019 – 26 May 2019. While this would be an inconvenience for the EU side, it would be a significant and very public embarrassment for the UK.

Nonetheless, if the UK Parliament ratifies the Withdrawal Agreement any time before 31 October 2019, the UK will be entitled to leave the EU on the first day of the following month.

The European Council, meanwhile, has committed to continue to meet in Article 50 format, whenever necessary, and commits to review progress again at the next scheduled summit on 20-21 June 2019.