A Come-back for Extend?

Could the UK and EU still agree to extend the Brexit transition period? Perhaps.
In desperate situations, all escape routes are a least worth checking. It might be helpful if experts gave these options a  closer look.

Transition Period – Source: Fondation Robert Schuman

During the months between the onset of the COVID-19 pandemic and 30 June 2020 there was a period of serious public discussion about the pressing case for  an agreement  between UK and EU  to extend the end date of the Brexit Transition Period, as provided for in the terms of the UK-EU Withdrawal Agreement. The case for an extension was set out and supported by high-level actors in the EU and  by a number of actors within, or in close or recent proximity to the UK government, as well as by most leading experts and many figures in politics, business, academia and public life. In January, the re-elected Johnson government implemented  a manifesto commitment by legislating to prevent itself from agreeing to extend the Brexit Transition period. But there was legal consensus that Parliament could if necessary easily and swiftly overcome this prohibition by repealing the corresponding legislation.

As is well known, the  Withdrawal Agreement required  such an extension to be agreed between the EU and UK by 30 June 2020,, and the UK announced in early June its definitive refusal to take up this option. However, some of those who anticipated this refusal, but suspected that the UK might  find reason  later on in the year to rethink its position, contributed around that time some expert discussion as to whether an agreement to extend the Transition might still be possible, by other legal means, even after the June deadline had expired.

In a bulletin created for Grassroots for Europe, we collated a number of  key public statements both on the case for an extension agreement under the WA,  and on the possibility, if required, of a later extension.

As of now, while there is as yet little sign that the UK government is changing its ideas,  the rational arguments for an extension to the timescale for implementing radical changes to EU-UK trade, as well as for  completing UK-EU agreement on an number of other major unresolved issues, seem as powerful as ever. Even if a UK-EU agreement of some kind were to be agreed in coming weeks, the consensus is that many serious hazards and risks to our prosperity and security cannot now reliably be eliminated if the Transition Period ends on the date currently scheduled by treaty.  Indeed a survey of the UK logistics industry was recently reported in Parliament by none other than Mr Gove himself as showing that 43% of UK firms in this critical sector are still expecting an extension to the Transition.

In these circumstances, it is noticeable and perhaps surprising that the earlier, lively and serious discussions of options for a late extension of the Transition Period have not been revisited. Via the Oxford for Europe twitter account, we put out a query on 2 October 2020 to some leading experts in this field, and were grateful to receive several replies, as well as comments from others.

Asking the Experts

We asked: “Could there still be an extension of the Transition period?”

Prof. Steve Peers @StevePeers replied: :
“Not without amending the withdrawal agreement, although some form of Transition period could be put in another treaty.”

Prof.  Catherine Barnard @CSBarnard replied:
“There is no easy route now the Article 132 WA door is closed. Lawyers have speculated in alternatives but none easy, especially if it is thought that Article 50 TEU is turned off.”

Prof. Jon Worth @jonworth replied:
“Not according to the foreseen procedure, no. Deadline for that is passed. Were there to be some massive crisis UK side there might be a way to negotiate some standstill system of some sort, but no one really knows how.”

Lorand Bartels @Lorand_Bartels commented:
“The outstanding question is whether a new agreement could include further Transition periods.”

These responses all seem to concur with the majority view taken in earlier expert opinions (see below): it would be considerably less easy now than it was before 30 June 2020 to agree an extension, primarily because this would need to involve a new treaty, and/or a treaty modification signed by all 27 member states plus the UK. However, most commentators then suggested or allowed, after sometimes detailed analysis, that the technical and procedural obstacles to such an extension could well be overcome, given a sufficient shared political will to do so.  (The experts now sound more pessimistic, but there is not reason to think that either the facts or the consensus legal thinking have changed.)

As of now, there is no sign of any such visible political will on the UK side. On the EU side, there is certainly no appetite for spinning out the Brexit process longer than is avoidable.  But, on past form, there could well be a shared readiness to take any steps necessary to mitigate major harms to European prosperity and security, on both sides of the seas, resulting from a chaotic outcome in January 2021.

The greatest obstacle to the possibility of an extension to the Transition which might be in the material interest of all parties seems to be not so much whether it is possible, as whether it is thinkable. It may be current UK government policy to forcefully insist to others that an extension  is absolutely and permanently excluded; it is possible that some analysts have felt themselves subtly or unsubtly warned off from looking further into this possibility; it may well also be part of UK policy to make the EU wish the UK gone as soon as possible.

However, if an informed consensus were to established that an extension of the Transition is, or may well still be legally and procedurally possible, it is not inconceivable that, out of fear of major blame for the impending disaster, the UK regime might still be prevailed on to reconsider this option.

In desperate situations, all escape routes are at least worth checking. It might be helpful if experts gave these options a  closer look.

Appendix: some previous opinions.

Anton Spisak, Tony Blair Institute for Global Change:
“Not all options for extending the Transition period are closed”.
https://institute.global/policy/uks-no-extension-gamble

“Article 50 reloaded? Amending the Withdrawal Agreement to extend the Brexit Transition period.
This blog post, written by Alfred Artley of Monckton Chambers, explores whether there is a viable legal basis in the EU treaties which would allow the EU and UK to extend the Transition period outside the already-agreed mechanisms in the Withdrawal Agreement.”
https://eurelationslaw.com/blog/article-50-reloaded-amending-the-withdrawal-agreement-to-extend-the-brexit-Transition-period

Best for Britain, Report: Getting the Best Deal for Britain.
[Describes processes for an extension to the Transition, either before and after 30 June 2020.]
The Case and Mechanism for Extending Transition in the Time of Covid-19.
https://www.bestforbritain.org/report-extend-Transition

Professor Catherine Barnard, senior fellow, UK in a Changing Europe, said:
“The Withdrawal Agreement provides a legally simple route to extension of the Transition period. If that route is not taken, there is serious legal trouble ahead if both sides decide they need more time.”
https://ukandeu.ac.uk/extension-is-needed-to-ensure-a-comprehensive-uk-eu-deal-new-academic-report-finds/

UK in a Changing Europe.:
“Even if the government does not seek an extension before the 1 July deadline, it is possible that the two sides may agree on the need for one later –perhaps to finalise the detail of negotiations or to allow time for ratification. Were the government to seek such an extension, a number of possible legal routes have been suggested. [….]”
https://ukandeu.ac.uk/wp-content/uploads/2020/06/The-Brexit-Negotiations-A-Stocktake-1.pdf

Prof. Catherine Barnard, in “Can the Brexit Transition period still be extended?” 30 June 2020.
“So what happens if the UK decides it wants an extension in October or November, to buy enough time to get any trade deal through all of the national and regional parliaments in the EU, and/or to give business time to prepare for the changes. This really is unknown territory….”
“… That being said, never rule out the ingenuity of EU lawyers if forced to come up with some imaginative solution on getting round the problem come the autumn.” >>
https://ukandeu.ac.uk/can-the-brexit-Transition-period-still-be-extended/

Georgina Wright, 9 July 2020 “The June deadline for Brexit extension has passed – but the UK could still buy more time”
https://www.instituteforgovernment.org.uk/blog/june-deadline-brexit-extension-uk-buy-more-time/

Jon Stone, 29 May 2020 “Four ways the Brexit Transition period could be extended after the deadline has passed.
https://www.independent.co.uk/news/uk/politics/brexit-Transition-delay-extension-deadline-boris-johnson-uk-eu-a9539586.html

Nick Thody.  “After June 2020, is there really no way of extending the Brexit Transition period or securing a new ‘implementation’ period?”
https://www.osborneclarke.com/insights/june-2020-really-no-way-extending-brexit-Transition-period-securing-new-implementation-period/

Professor [Tom] Sampson [from the London School of Economics] told Newsweek: “It’s very likely now that some kind of resolution will have to be reached by the end of this year, but it is still technically possible if there was enough political will on both sides, the transition could be extended.
“It makes it much more complicated to do, legally, because effectively you require a whole new agreement to extend the transition, but it’s still possible, I think that’s one thing to keep in mind.”
https://www.newsweek.com/e-u-european-union-brexit-boris-johnson-no-deal-1514753

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