Later on tonight in the Lords – perhaps in the early hours of the morning – Peers will debate amendments to the Withdrawal Bill that seek to bring back some flexibility into how the UK leaves the EU, in particular the so called ‘exit day’. This is not about overturning the decision of the 2016 referendum but an attempt to help Ministers remove the straight-jacket they’ve been forced to wear by the more ardent Commons Brexiteers. In legislative terms, to enable the Bill to fulfil the task set for it: to provide a functioning statute book and legal certainty as we Brexit.
Having a fixed, immutable date for our departure has two major drawbacks, in that it undermines both the transition period per se and the government’s negotiating strength. Not least, making it illegal for the UK to extend the Article 50 negotiations by even a single minute – even if the EU27 unanimously agreed to do so and it was in our interests.
The Lords EU Committee has said: “The rigidity of the Article deadline of 29 March 2019 makes a no deal outcome more likely. For the Government to compound the rigidity of Article 50 by enshrining the same deadline in domestic law would not, we believe, be in the national interest”. A clock counting down to an automatic end-point is perhaps not the best way to go about negotiating such matters of great importance.
Article 50 provides that our commitment to EU treaties ceases to apply once we enter the terms of the withdrawal agreement or, failing that, two years after notification – unless the EU27 agree to extend the period. The UK would not, therefore, automatically leave after two-years – either because a later date had been set or the European Parliament vetoes the deal next January.
Interviewed by Andrew Marr last month, Guy Verhofstadt said this sort of eventuality meant exit with no deal – with the UK trading on WTO terms, no transition, and no safeguards for our citizens. It is doubtful that the governments of the EU27 or indeed our own would settle for this. Especially with nothing in place relating to our customs at Dover, procedures for registering EU nationals, new VAT forms, agreements on aviation, export of live animals, checks on food stuffs and manufactured goods, and the Northern Ireland border.
Would we really leave in this scenario, if another week or fortnight could make a difference? And what would happen after two-years if there was no agreement but the parties were just days away from finalising the deal?
Whilst Ministers think they can agree the substance of a Future Partnership with the EU before October this year, the latest DExEU Select Committee report says: “it is difficult to see how it will be possible to negotiate a full, bespoke trade and market access agreement, along with ... other agreements, including on foreign affairs and defence” by that point. The government, it suggests, should seek a limited extension to the Article 50 deadline to ensure that a political declaration on the Future Partnership that is comprehensive enough to be concluded before the transition phase begins.
The Select Committee also says that, should the 21-month transition period be insufficient to conclude and ratify the treaties and agreements establishing the Future Partnership then “the only prudent action would be for … a limited prolongation to avoid unnecessary disruption”. The withdrawal agreement should therefore “allow for the extension of the transition period with the approval of Parliament”.
The exit date was put in the Article 50 Bill to satisfy Conservative MPs who are neither party to the negotiations nor likely to be involved in the implementation of the final deal. The time has come now however, to untie ministers’ hands and give them a better chance of avoiding what feels like a looming nightmare for our country.
Baroness Dianne Hayter of Kentish Town is Shadow Brexit Minister in the House of Lords