“Moving the Goalposts”: The EU Exit Day Extension Negotiations

“Moving the Goalposts”: The EU Exit Day Extension Negotiations

CategoryArticles Author Michael McParland QC Date

Exit Day?

For two years one thing was supposedly certain in the Brexit negotiations: on 29 March 2019, the UK was going to withdraw from both the EU and the European Atomic Energy Community (‘Euratom’). This date, labelled “exit day” in the UK, was enshrined in both EU law (as a result of the provisions of Article 50 of the TEU) and in UK primary legislation.

The requested extension

By a letter from the Prime Minister of 20 March 2019, the UK submitted a request for an extension of the period provided for in Article 50(3) TEU until 30 June 2019. This was said to be with a view to finalising the ratification of the Withdrawal Agreement which had been negotiated between the EU and the UK but which had already been twice rejected by the UK Parliament.

The UK’s requested extension was refused. Instead, on 21 March 2019, the European Council agreed an extension of the UK’s EU membership until:

(a)     22 May 2019, provided the Withdrawal Agreement was approved at the latest by 29 March; and if that was not the case, then until,

(b)     12 April 2019, also indicating that, in such circumstances, the EU expected the UK to indicate a way forward before 12 April 2019 for its  consideration.

Last Friday, 22nd March 2019, before the issue of any extension returned to Parliament, the UK formally accepted the European Council’s draft decision to extend the period under Article 50(3) TEU. This was done by a very brief letter from Sir Tim Barrow, the UK’s Permanent Representative to the EU.

The European Council’s Decision (EU) 2019/476

The European Council’s formal Decision (EU) 2019/476 was published in the Official Journal the same day:

This declared in Article 1 that:

“In the event that the Withdrawal Agreement is approved by the House of Commons by 29 March 2019 at the latest, the period provided for in Article 50(3) TEU is extended until 22 May 2019.

In the event that the Withdrawal Agreement is not approved by the House of Commons by 29 March 2019 at the latest, the period provided for in Article 50(3) TEU is extended until 12 April 2019. In that event, the United Kingdom will indicate a way forward before 12 April 2019, for consideration by the European Council”. (emphasis added).

The recitals recorded the basis upon which this Decision was made, including the reasons for the two alternative extension periods. Recital (11) also highlighted that not only does any extension exclude “any re-opening of the Withdrawal Agreement”, but “[a]ny unilateral commitment, statement or other act by the United Kingdom should be compatible with the letter and the spirit of the Withdrawal Agreement”. What such unilateral commitments, statements or acts might be are not identified, but might well include any arrangements that the UK enters into with third countries to roll over existing free trade agreements that they currently benefit from as an EU Member State. It could also be said that any internal UK promises made by the Government regarding Northern Ireland to the DUP (such as the so-called “Stormont Lock” about the Northern Ireland backstop in the Withdrawal Agreement) fall squarely within that category. While the recitals do not form part of the enacted decision, the basis upon which the extension was granted looks like it has further restricted the United Kingdom’s room for manoeuvre in the light of any indicative votes from the Commons.

Therefore, it can be said in the light of the European Council’s Decision (EU) 2019/476 that:

(1)     Parliaments’ approval of the Withdrawal Agreement in the next 3 days   would guarantee an extension of the UK’s EU Membership until 22 May  2019. Thereafter the transitional provisions contained in the Withdrawal Agreement would come into force. Whether those provisions are also to be subsequently extended remains to be seen.

(2)     Unless the Withdrawal Agreement is approved by Parliament by 29 March 2019 “at the latest”, any subsequent approval of that agreement during the 10 working days until 12 April 2019 will not “buy” a further extension of the UK’s EU Membership for the period from 12 April to 22  May without a further agreement of the European Council, though it can be safely assumed that such agreement would be forthcoming.

(3)     If the Withdrawal Agreement is not approved before 12 April 2019 then, (save in exceptional circumstances) it seems highly likely that the EU would reject any further extensions to allow the Prime Minister to attempt to get it through Parliament. Such a refusal would be certain if any “Meaningful Vote 3” had resulted in a third rejection in Parliament. Those exceptional circumstances might possibly include a commitment to a second referendum on the Withdrawal Agreement.

(4)     If the Withdrawal Agreement is not approved by the Parliament by either specified date, then any indication of “a way forward” that the UK provided for the consideration by the European Council before 12 April 2019 will not be looked at favourably by the EU Council if it involves any attempt by the UK government (post-indicative votes or otherwise) to either re-open the Withdrawal Agreement (as opposed to the Political Declaration) or involves the UK to make declarations etc, which do not accord with the letter or spirit of the Withdrawal Agreement.

(5)     From the EU’s perspective, the ways forward that they might contemplate appear limited: The UK leaving the EU without any transitional deal; the UK not leaving the EU at all (by revoking the Article 50 notice); or the UK seeking a lengthy extension of the Article 50 period to allow for either Parliamentary elections and / or a new referendum to try and break the deadlock in Parliament, or (just perhaps) to allow for negotiations with other EEA member states if the UK decided to remain in the EEA post Brexit (the Norway plus option).

In such circumstances, those who always trumpet with absolute certainty, that better Brexit arrangements can be negotiated because the EU always compromises at the last moment, may well be playing a very high-risk game of Russian roulette: one where there is even a real doubt whether one of the chambers of the gun is actually bullet-free.

Some of the difficulties are highlighted by the Government in its attempts to get legislative approval for setting a new EU “exit day”.

 Amending the UK’ s own Withdrawal Act

On 25 March 2019, the Government laid a draft statutory instrument before Parliament (see here). Entitled “The European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019, this amends the definition of “exit day” in Section 20 of the European Union (Withdrawal Act) 2018 in accordance with the two options contained in the European Council Decision (EU) 2019/476.

The Government also published a note “Legislating for the Extension of Article 50”. This note emphasises that the draft regulations provides for:

(a)     An extension of EU Membership to 11 pm on 22 May 2019, if the House of Commons approves the Withdrawal Agreement by 29 March, or

(b)     An extension to 11 pm on 12 April 2019 if it does not, “before which the UK would need to put forward an alternative plan or decide to leave without a deal.”

The Government’s Note also emphasises that the extension of Article 50 had been agreed with the EU and “is therefore legally binding in international law”, presumably hoping to head-off any attempts by Parliamentarians to scupper the arrangement by rejecting the terms of the draft regulation.

The Government also emphasises that a Parliamentary rejection of the ‘exit day’ SI would cause serious problems and uncertainty with regard to the domestic statute book from 11 pm on 29 March. Clashes in UK domestic law would arise:

“… contradictory provisions would apply both EU rules and new UK rules simultaneously, and in some cases new UK rules would replace EU rules prematurely. This could generate confusion and uncertainty for businesses and individuals, resulting in litigation. In some cases, it could restrict the rights of individuals or impair the ability of public bodies to operate within the framework of EU rules”.

Whether Parliament, or indeed anyone in government, actually heeds these warnings remains to be seen.

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