Where are we now?
On 2 April, following a seven-hour cabinet meeting, the Prime Minister addressed the nation and indicated she would seek to work with the Leader of the Opposition to find a solution to allow the UK to leave the European Union in an orderly way:
“So today I am taking action to break the logjam: I am offering to sit down with the Leader of the Opposition and to try to agree a plan – that we would both stick to – to ensure that we leave the European Union and that we do so with a deal.
Any plan would have to agree the current Withdrawal Agreement – it has already been negotiated with the 27 other members, and the EU has repeatedly said that it cannot and will not be reopened.
What we need to focus on is our Future Relationship with the EU”.
The Prime Minister also indicated that she would seek a further extension to the Article 50 period. If agreed unanimously by the EU member states, this would move the default exit day from 12 April until at least 22 May. However, if the extension lasts beyond 22 May, the UK will remain an EU state and so will be expected to participate in the European Parliament elections which will take place from 23 to 26 May
EU member states may also suggest an exit day beyond the European elections (perhaps to the end of the year) to prevent a cliff edge occurring just before the elections are due to take place. The reasoning for this was set out in a series of tweets by Richard Corbett MEP.
The future relationship
Whilst the Withdrawal Agreement appears to be locked down, this does not prevent more detail being added to the Political Declaration which sets out the basis for the future UK-EU relationship. This approach has been endorsed by the EU institutions. For example, Guy Verhofstadt MEP suggested that changes to the Political Declaration was the way to get a final agreement over the line. This approach was confirmed by a member of the European Commission’s negotiating team, Stefaan De Rynck.
Amending the Political Declaration might also help to assuage fears amongst MPs about a “blind Brexit” where the UK leaves the EU without a clear indication of what a future relationship might look like.
If the House of Commons does manage to agree on a future direction, following discussions between the Prime Minister and the Leader of the Opposition, and secure its inclusion in an amended Political Declaration, what does this mean?
Is it possible to ensure binding changes to the future relationship?
The Political Declaration is not legally binding – the EU cannot negotiate and sign a trade agreement with the UK until after Brexit. As a result, there is nothing to stop either the EU or the UK Government from changing its approach in the future. In the UK Government’s case, this could mean a future government could choose to pursue a harder or softer Brexit than is set out in the Political Declaration.
Even if, for example, a commitment for a Customs Union with the EU was put into primary legislation, the principle of parliamentary sovereignty means that the UK Parliament cannot bind either itself or any successor parliament. In other words, this legislation could be changed or repealed at a later date – perhaps following a change of Government policy or a general election.
It will be very difficult, therefore, for the UK Parliament to ensure that any particular agreement on the future relationship and set out in the Political Declaration is carried out by a future Government in negotiations which may take place over many years. This is a real conundrum for those who want to ensure that the future relationship is mapped out with some certainty.
Likewise, any commitment by the current Government to give Parliament a greater role in negotiations on the future relationship is equally restricted by the possibility of a change of Government or change of policy.
As a result, it has been suggested that the only way to ensure political certainty would be by way of a confirmatory referendum where the electorate endorse a particular approach, allowing the UK Government to then negotiate on that basis with the EU after exit day.
Iain McIver, SPICe Research