In this post Piet Eeckhout adopts a constitutional law perspective to argue that there are numerous ways in which the two-year Article 50 clock could be stopped or extended. Not only could the decision to withdraw be revoked by the UK, but both the UK and European Parliament could ask for the negotiations to be extended. Crucially, EU constitutional law requires an orderly transition.
The deed has been done, the letter delivered. All over media screens the two-year clock started ticking, registering to the level of seconds the time left for Britain’s EU membership. The point of Brexit, when by virtue of Article 50 the treaties cease to apply, can be determined with atomic precision, so it seems.
But the relationship between law and time can be treacherous, and those who look at the two-year deadline of the withdrawal process as a physical fact could well come in for a surprise. Of course we know that the European Council has the power to decide, unanimously, to extend the withdrawal process. So much is expressly stated in Article 50. There is, however, more to Article 50 than meets the eye.
In a paper written with Dr Eleni Frantziou (Westminster), and to be published in the coming months (for an earlier version see here; for my lecture on the subject, see here), we argue that Article 50 needs to be interpreted and implemented in line with broader EU constitutional principles. We also point out that UK constitutional law governs further UK decision-making on Brexit. Our conclusions are that the clock can be stopped in a number of ways.
First, the UK could change its mind. Our view is that the Article 50 notification is revocable. The notification implements a decision to withdraw, in accordance with the withdrawing state’s ‘constitutional requirements’ (Article 50(1)). If that state rescinds that decision, in good faith, and in a constitutionally orthodox fashion, the very basis for withdrawal falls away. In the UK parliament is sovereign. It has authorised the government to notify the intention to withdraw; it could decide, at any point, that Brexit is off. The EU respects the constitutional identity of its member states (Article 4(2) TEU), and would therefore need to respect a Brexit reversal, for else the effect of Article 50 would be one of forced expulsion. The travaux of Article 50 show that such an expulsion mechanism was rejected. Of course any abuse of the Article 50 process must be avoided – there cannot be an opportunistic letter-sending sequel – but the law can deal with abuse. The EU’s whole purpose is integration, and the return of the prodigal son would fit that purpose.
Second, what if a withdrawal agreement, negotiated within the two-year period, is rejected by the UK parliament? The government claims that will mean exit without an agreement. However, distinguished and erudite legal opinion disputes this. It interprets UK constitutional law as requiring that the ultimate Brexit decision be taken by parliament. It bases that interpretation on the Supreme Court judgment in Miller, which confirmed that only parliament can change the law of the land. So parliament could ask for further negotiations, even beyond the two-year period. We argue that EU law needs to respect this, because again this would be part of the UK’s constitutional requirements. The text of Article 50 should be read as meaning that the two-year deadline is limited to an agreement not to agree – a deal on no-deal.
Third, what if the European Parliament withholds its consent to the negotiated withdrawal agreement? Again that should not lead to a no-deal Brexit, simply because the clock runs out. Otherwise the European Parliament is, effectively, forced to consent, and that is not in accordance with EU constitutional principle. So the European Parliament, too, could ask for further negotiations, beyond the two-year period.
Fourth, the withdrawal agreement could be referred to the EU Court of Justice. Under 218(11) TFEU the Court can be asked for its opinion on an international agreement which the EU ‘envisages’ to conclude. Such an opinion looks at the compatibility of the agreement with the EU Treaties, and can be requested by any member state or by an EU institution. The Court would need time to consider such a case, and we would argue that, again, this should stop the clock.
Fifth, Article 50(3) provides that the treaties cease to apply from the date of entry into force of the withdrawal agreement (and ‘failing that’, two years after the notification). In our view the withdrawal agreement could set a date for entry into force which lies beyond the two years. Such an approach would leave more time for a transitional period, in the course of which the future relationship could be worked out.
We recognise that on each of these questions there are different views. The mechanics of the clock are one thing. What is important, from the perspectives of both EU and UK constitutional law, is an orderly transition, and one which is consensual rather than Brexit by force of a legal clock running out. It is definitely a constant of the EU’s history to resolve constitutional crises by agreement, to a fault. If ever a crisis called for such an approach it must be Brexit.
This post was originally published on the UCL Brexit blog and is re-posted with permission. It has also been published on the UK in a Changing Europe blog.
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Piet Eeckhout is Professor of EU Law at UCL and Academic Director of the UCL European Institute.
The Constitution Unit Blog 
Greaat post
Unfortunately, Fiona, the short answer is that these people will go on and on until Brexit is actually delivered or they have wrecked it. The fact is Gina Miller is already rounding up the deplorables, as is Tony Blair. TB has not been much in the news in the last few weeks. It just means he is not ready yet. I am not sure what has happened with the court case in Ireland. And Mrs May is giving them all plenty of time. I think she does not realise the risks to which she is exposing the entire process. I started from a position of a quick exit, wait at least five years to assess the directions of both the UK and EU allowing them to develop independently of each other before contemplating any further entanglement – except for free trade, but no boondoggles. Then I thought, a future deal involving a transition could work if Mrs May showed boldness and insight. She didn’t. M Barnier came along and I thought he was right – exit first then future relationship, but too black and white. Then as it dawned on Mrs May her two year timetable wouldn’t work I hoped she at last understands, and would go for a transition. But she still doesn’t get it: she wants a comprehensive deal at the end, not the beginning. She doesn’t see the urgency of getting the deal done. Takes me back to the day she was announced as replacing Cameron. The end of Brexit, I thought. She’s just an administrator-manager. Her ideal is tidy and nice: 52% of EU competences no longer applying to UK but 48% still applying in order to accurately reflect the referendum vote. She announced a plan and a timetable and is proudly sticking to it and her supporters praise her rigidity! Wrong, it’s a weakness. She has no long term vision of Britain as far as I can see, except mother-hood and apple pie cliches. No, no, no. She needs to be strategic, adaptable, flexible, bold and decisive. But she never will be. She just isn’t the right person but I see no alternatives. Our elites no longer think like the leaders of a self-governing nation. I despair.
I note that, as in the referendum campaign, the Remain side still has only negative things to say about Brexit, nothing positive to say about the EU. Eventually that will sink in to the electorate.
Oh God, are we never to be free of this damned organisation? How many more clever arguments are going to be put forward to frustrate the wishes of the electorate? Do these people with their forensic and microscopic knowledge of every detail against actually leaving really believe we will eventually roll over and give in? WE WANT TO GO. With or without a deal WE WANT TO GO. Remain scaremongering ensured a Leave vote, these delaying tactics will ensure an even deeper entrenchment and hostility to the very union these Remoners are trying so hard to preserve. A “no deal” is beginning to look very attractive.
Just noticed a typo. “The plain common sense truth is this: if the parties wish it, UK may withdraw the Article 50 negotiation.” should read “The plain common sense truth is this: if the parties wish it, UK may withdraw the Article 50 notification.”
PS. Professor Eeckhout, finally gets to “Fifth, Article 50(3) provides that the treaties cease to apply from the date of entry into force of the withdrawal agreement (and ‘failing that’, two years after the notification). In our view the withdrawal agreement could set a date for entry into force which lies beyond the two years. Such an approach would leave more time for a transitional period, in the course of which the future relationship could be worked out.”
He seems not to be following the news. Mrs May, who I agree is unbelievably slow on the uptake of such things, has finally also reached this position. So, I think now this is actually her starting point. So Professor Eeckhout needs to catch up with this tortoise. It was, of course M Barnier’s starting point at the start! And I was a lone voice in UK agreeing with him at the start because it should be blindingly obvious to anyone who takes the words on the page at face value.
My position remains that an agreement, or agreements, on the arrangements for withdrawal and for a new relationship not only can but must be strictly confined to essentials, setting out no more than the essentials of a process: end state, starting position, timescale and a process including delegation of secondary issues and details, implementation etc to subordinate groups tasked with finalising them under the direction of the respective parties. in this way we would gain certainty, a smooth transition and reduce the risks of events beyond the control of either party de-railing the entire process. It is important that the top-level, governing treaty is at the start, not the end of the process.
I am still waiting to see if Mrs May realises this yet. She has a dangerous obsession with detail so possibly she never will. At least she now realises that her absurd initial ambition to complete a comprehensive trade deal in the same timescale as Article 50’s requirements, is impossible to achieve and was boxing her into a corner as a negotiator. Her realisation that seeking membership of the single market would do nothing but create obstacles to agreement took 6 months. Blindingly obvious to everyone else.
There is only one purpose in writing this article: to find a way to stop Brexit. OK, possibly a second one: to ponder the possibility as an academic exercise. If I really stretch the credulity of most participants on this site I could posit a third one, just to see if anyone defends him on the basis that he cares about democracy and is merely trying to ensure the whole process proceeds smoothly for the benefit of the people of this great nation: that he is ensuring we are all aware of the potential risks to Brexit and need to think now about how to safeguard from unscrupulous parties who might exploit these avenues in order to derail Brexit.
So let’s assume the most likely purpose: to find a way to stop Brexit.
Professor Eeckhout starts with an error, presumably deliberate because doing so supports that purpose: “Of course we know that the European Council has the power to decide, unanimously, to extend the withdrawal process.”
A bit of sophistry can go a long way, especially among legal debaters and this is obviously the hope that inspires this article. The truth is that the EU can extend the period before the treaties cease to apply only by agreement with the departing state. Furthermore, it applies if talks are broken off by agreement or unilaterally well before the two year limit. And it leaves open the possibly of the withdrawal agreement including either a subsequent transition or an agreement to finalise arrangements on some aspect by a later date. Sentences in treaties are best read whole.
We should also note that Article 50 is the only legally enforceable clause in the Treaties that obliges anything to be negotiated at all and the obligation is placed firmly and unequivocally on the EU to negotiate and conclude an agreement with the departing state. There is no such requirement placed on the departing state and there is nothing specifically requiring negotiations to be continued for the full two years.
So there are many paths the negotiations could take whilst complying fully with Article 50: it could become clear after a week or two, there is nothing left to discuss or no point in attempting to agree. Negotiations end with an agreement to that effect or unilaterally by the departing state departing. At the opposite extreme, both parties could agree to finalise nothing until the whole package is sewn up. The deadline is reached but there is one last sticking point. Is it worth extending for a week or not? Reasonable question. To get to this point it must either be very, very important to the entire package, or one side is simply being bloody minded. Cue the Remoaner with a court case to have a judicial review or to question the powers of the government, devolved powers to Scotland or some such piece of sophistry, so long as it has a potential linkage to a constitutional issue, the treaty provides legal cover, uncertain but debatable – more debate, hooray! – for a halt if the EU agrees unanimously. With luck the case would require referral to the ECJ to at least give an opinion on EU law. Bliss!
Why would the EU agree? Respect for the constitutions of other states can become over stretched. Especially if it is being abused. By then it would clearly be UK’s problem and the EU would be entirely justified in ending negotiations immediately with no agreement in place. It has better things to do.
From there the author traverses a set of possible avenues for legal debate in a court of law which could of course be maintained for as long as it suits the pockets and purposes of the complainants. But would doing so actually help anyone? Extremely unlikely.
The plain common sense truth is this: if the parties wish it, UK may withdraw the Article 50 negotiation. If the UK wants to but the EU doesn’t agree, it won’t happen because it won’t be worth fighting for. Furthermore, the changes to UK law resulting from Brexit will be made fully in accordance with UK’s constitution once the agreement takes effect. The idea that this normal way of giving effect to international treaties does not apply to Brexit is fanciful. Major changes will as usual be made by Acts of Parliament. Parliament may delegate powers to ministers if it so chooses. Powers will not be delegated unless parliament chooses to do so. The content of the agreements will be subject to parliamentary scrutiny, as will the intentions and progress being made by the Government in its negotiations. Whether and how Parliament chooses to exercise its powers in Brexit is a matter for Parliament, not for lawyers.
Attempting to derail Brexit cannot serve any useful purpose. Even if you believe it to be the wrong course for UK, the best thing to do is to be constructive through the plentiful channels available for parliamentary scrutiny without any court cases. Nobody is attempting to sideline Parliament. If the constitution was good enough to take UK into the EU it is good enough as it stands and is understood by the Government to take UK out. It is Parliament’s job, not the job of lawyers, to hold the government to account and it would be a very dangerous precedent to have lawyers instructing Parliament in its duties or actions.