Let us assume that the negotiators in the “tunnel” agree a deal, then what happens next?
The short answer is that an unprecedented legal process begins. It is only dawning on many observers now that law and legal advice are central to understanding what happens now - this is because the Brexit “Deal” will be an international treaty which will be legally binding on the UK and the EU. Indeed, the whole EU project and the rights which businesses have are “legal rights” with legal foundations.
European Commission sends deal to the European Council
The European Council has a representative of each European Union Member State. It is normally the Member State’s Prime Minister but it is the President in the case of France.
The European Council would receive the text of the draft withdrawal agreement from the European Commission. The latter has led the negotiations rather than the Council. The Council would have done a good job - and initial signs were that it would be the negotiator - but the Commission is hugely experienced at negotiations and represents the interests of the EU as a whole rather the Council. The Council is a collection of members with each member representing its own national interest.
The Commission appointed Michel Barnier as its chief negotiator. It was a wise choice. He had been a member of the French Assembly and Cabinet as well as a European Commissioner. He had years of experience and expertise across many aspects of the process.
The EU’s decision to accept (or not) the deal that emerges from the “tunnel” is a decision to be taken by the 27 remaining Member States (i.e. the UK has neither a vote nor a seat at the table). It is possible that the UK may participate in initial discussions or any final negotiations but it will not be part of the voting process - indeed, the UK left the room in the case of the other deliberations among the 27 remaining Member States.
It is possible that there could be negotiations on the deal at the European Council but the indications are that there would be little or no appetite for that prospect.
The 27 Member States have been here before. They approved the November 2018 Draft Withdrawal Agreement which was approved by the 27 but not the UK Parliament because the House of Commons rejected it three times. So, the attention then turns to the UK.
UK approval is needed
The House of Commons has to approve the deal. In the context of the November 2018 deal, that was a simple majority vote at a time of the Prime Minister’s choosing. The Benn Act - the European Union (No.2) Withdrawal Act 2019 - complicates that somewhat. If the UK has not secured a deal which the House of Commons has approved by 19 October then the UK Prime Minister must seek an extension from the European Council of the “Article 50 Notice” period. (That is to say, the UK seeks permission to remain in the EU despite serving notice in March 2016.)
The House of Commons is due to sit on Saturday, 19 October, to consider the situation. If there is no deal then the UK Prime Minister must, under the Benn Act, seek an extension. The decision to extend is that of the remaining 27 Member States sitting in the European Council. The Council could refuse an extension but that would trigger a “No Deal Brexit” and the EU would not want to be blamed for that consequence. The Council may choose whatever date it wants. For example, the 31 October 2019 deadline was chosen by the EU because many EU office holders are leaving office that day so the EU would have preferred not to bind the hands of their successors. If an extension is requested then the Council should be generous and offer a sufficiently long one so as to reduce the chances of the issue coming back on the agenda of future Council summits. The UK does not have to use all the time granted in an extension.
If a deal is agreed but it is not in a form which can be considered by the House of Commons then matters get more complicated. If the UK Prime Minister seeks the extension then that is relatively straight forward. If he does not seek the extension then it becomes more complicated and one could anticipate legal actions and political controversy. If there was a short gap to an emergency summit then the Prime Minister might gamble that no extension is needed but that raises a plethora of issues.
If the deal is approved at the European Council Summit on 17-18 October or at a summit before 31 October then the UK could leave on 31 October.
European Parliament approval
The European Parliament also has to approve the deal. It will be interesting to see how that plays out. The UK’s Brexit Party MEPs might well vote against a deal and others could too. So watch this space!
An extension and a delay is quite feasible. Unlike a Member State which might adopt legislation in a small number of language versions (typically one), the EU has 24 official languages (The United Nations has only six). The withdrawal agreement would have to be translated into all versions. This is not an easy task.
All linguistic versions are equally authentic so great care is taken by the lawyer-linguists who undertake the work. Ironically, the closer the October deal is to Theresa May’s November 2018 deal, the quicker it will be to produce the translations and Johnson’s UK can leave sooner because it is understood that some translation work has been done in that context.
Could there be referendums and legal challenges?
The short answer is yes. It is unlikely that Ireland will have a referendum but one cannot rule out a court application that a referendum be held. Equally, there could be court or parliamentary challenges in other Member States. For example, Belgium and The Netherlands proved challenging (even temporarily) for EU deals with Canada and Ukraine respectively so watch this space too!
So will the UK be totally gone from the EU then?
Not quite. The UK would no longer be an EU Member State. It would stop participating in, or voting at, EU institutions. But there would be some processes continuing (e.g. UK-related court cases at the Court of Justice of the European Union). More importantly, there would be a transition or implementation period during which EU law generally would no longer apply to the UK but specific rules would apply by virtue of the Withdrawal Agreement which would be tantamount to some aspects of EU law.
Are the negotiations over?
In some ways, the negotiations have only just begun. The UK will not only have to negotiate the Relationship Agreement/Trade Deal with the EU, it will also have to negotiate Trade Deals with many countries around the world. Expect complication as well as no lack of complexity and controversy over the next few years.
What should businesses do?
It is worth studying the Withdrawal Agreement with their lawyers to see how the new regime will impact on their businesses. The best approach is to assume that the EU rules and privileges no longer apply and then see what the Withdrawal Agreement adds back into the frame.
A&L Goodbody will be publishing further and more specific updates as the situation evolves.