From what Davis said, we need to think about a Limbo Brexit
If talks go down to the wire, ratification will go beyond them
Brexits are like fairies. There are good ones, bad ones and if you say it with enough feeling, they might not exist at all. What we haven’t heard much of so far – though given David Davis’ comments at the Select Committee this week, we should have done – is the Limbo Brexit.
What is that, you might ask. In a somewhat numerically-challenged observation, Davis claimed that a deal might not be done until “the 59th minute of the 11th hour” (which would actually be 10:58 – you start counting minutes and hours at zero, unlike days and months). Leaving that pedantry aside, the more pertinent point, as he acknowledged in the committee, is that the deal in the Council would not be the end of the story, even though time would have run out.
Once a deal is reached, the European Parliament has to ratify it, as then does the European Council – the prime ministers and presidents of the member states. Davis noted that the Westminster parliament would get a say before the EP but in these circumstances it would be after 29 March 2019. That presents a problem.
Article 50 clearly lays out the timescale for leaving. It is in fact only the deal that need be agreed within the two years. As long as that’s done, it doesn’t matter procedurally if ratification of it goes over the deadline, as Davis suggested was possible – the deal still stands and can be implemented.
Which is all very well but by that point, Britain might well have crashed out of the EU under the Article 50 terms – an unratified agreement cannot be implemented and even if the votes are taken within, say, a week, that still means there’d be a nasty Limbo Brexit period when Britain was neither a member of the EU nor party to the exit agreement. Anything that happened during that time and was usually subject to EU rules would find itself in a strange legal world.
There is something of a get-out. The negotiations are currently being handled for the EU by Michel Barnier and his team, as no doubt they will through to near the end. However, as with the decision on whether to begin trade talks, the final details will almost certainly be agreed by the European Council. That body – and only that body – can agree to extend the exit period long enough to cover the ratifications. If the talks went down to the wire, one clause to the agreement could be to grant an extra month to allow the parliaments to ratify it before the deal came back to the Council for a final rubber stamp.
As an aside, one factor not being sufficiently closely monitored is the opinion of the European Parliament. Guy Verhofstadt has been vocal and quite critical of the UK’s approach to the talks. While he can’t single-handedly determine the Parliament’s opinion, nor should we take it as given that the MEPs will simply sign off whatever’s put in front of them. They probably will do and they certainly should do if the member states have agreed it in principle but the EP has its own sense of self and if it’s not treated with respect, we can’t assume it wouldn’t make a very grave error.
However, even if it does play ball, the kind of brinkmanship Davis was contemplating would have real world consequences. While it might end up being the case that a deal goes through providing for a smooth transition in legal terms, that won’t be how it’ll look to business, who’ll need to prepare well in advance for all possible outcomes. If there’s nothing sorted by March 2019 – or probably by December 2018 – the assumption ought to be that there’s a high chance of a Crash Brexit.
My guess is that the exit deal will probably be agreed at the December 2018 summit. This won’t be the final deal but will provide for both a smooth transition and a framework for continuing talks to secure the final settlement, with time for both Westminster and Strasbourg to vote on what’s been agreed. If talks go on after that, the chances of either no deal or a Limbo Brexit increase rapidly.