BREXIT: May’s Maze? 

With 59 days to go until B-Day, it is still not clear what will happen.  Among the several plates which are spinning are:

• The UK's House of Commons is still voting on what the UK should do next.  There is expected to be another "meaningful vote" over the next few weeks on whether to accept the draft withdrawal agreement but in the interim, parliament is considering a series of procedural votes on whether to extend Article 50 or to go back to the 27 Member States and seek some concessions on the Protocol on Northern Ireland (i.e., the Backstop).
• A no-deal crash out by the UK is becoming less likely but it cannot be ruled out.  If it were to happen then it would be more by accident than by design.  A crash out would mean that the UK would not only be a "third country" but there are few rules which would address the relationship between the EU and the UK.  The World Trade Organisation (WTO) rules are incomplete and imperfect – they are not a substitute for the current relationship or even the draft withdrawal agreement because they cover only certain matters.
• The Irish Government is inching forward in public towards the adoption of omnibus legislation to address Brexit.  It is likely that there is much more detail "behind the scenes" in terms of preparing legislation than is in the 95-page "General Scheme" published on 24 January 2019 of the so-called "Miscellaneous Provisions (Withdrawal of the United Kingdom from the European Union on 29 March 2019) Bill 2019".
• The Bill seeks to deal with a variety of areas (e.g., health, business, communications and transport) in some detail, it is very likely that no bill will cover all the angles and this is likely to be the first of many statutes over time.
• What is being forgotten by many observers is that this phase, the withdrawal phase, is the easiest one of the three phases – the drafting of the withdrawal arrangement (the current phase) (due to end on 29 March 2019); the crafting of the post-withdrawal relationship agreement (the next phase) (currently expected to end around 31 December 2020 but could be extended by six months or so); and the on-going relationship between the UK and the EU post-Brexit (thereafter).
• There is some speculation that the 29 March 2019 deadline could be extended.  If the remaining EU Member States agrees to a request from the UK for an extension then the EU will probably require some definite plans and a sense that the extension would be useful.  Seeking an extension is one of the few cards which is exclusive to the UK.  However, the granting of an extension requires unanimity among all the remaining 27 Member States.  Faced with a crash-out scenario, it would be a brave Member State which would refuse to extend.
• There is some media speculation that the process might be "paused".  That is not legally possible.  An extension of the Article 50 process is possible (under Article 50 of the Treaty on European Union) or a revocation of the Article 50 notice is possible (under the European Court's Wightman ruling) but unlikely.  However, the regime does not allow a pause – however welcome that might be for many.

There is no doubt that all of these plates are spinning at some speed with the risk that one or more may crash.  However, the track record would indicate that the situation will be resolved but late and imperfectly.

For more information in relation to this topic, please contact Vincent Power, Partner, or any member of A&L Goodbody's EU, Competition & Procurement team.

Date published: 30 January 2019