With only a few weeks until the 3rd anniversary of the UK’s referendum on its membership of the European Union it remains unclear whether, when and on what basis Britain will leave the EU.
In one sense the breakdown of cross-party talks, last week’s European Parliament elections and the announcement of the resignation, as leader of the Conservative Party, of Theresa May are irrelevant to the Brexit process. They have no direct effect on the legal status of the withdrawal agreement previously negotiated between the British Government and the European Union or the procedures for ratification of that agreement.
Equally, recent events do not affect the ‘default’ position on Britain’s exit. The latest “Brextension” agreed by the European Council extended the negotiating period under Article 50(3) TEU until 31 October at the latest. Although there might well be another extension beyond the current Hallowe’en deadline, the current position is that the UK will leave the EU in what is commonly referred to as a “hard” Brexit on that day if the Withdrawal Agreement has not been approved by Parliament and ratified by that date. Should a consensus in Parliament be found sooner the UK could leave earlier but the odds don’t look good.
Meantime the new European Parliament is due to meet for the first time on 2 July. On the assumption (which I think is safe) that the UK is still a member state the newly elected British MEPs will take their seats and hold them until the UK leaves the EU, be that before, after or on 31 October (with or without a deal).
However it seems inevitable that the ongoing political upheaval will have a profound impact on the UK’s ultimate direction of travel on Brexit. The electoral success of the Brexit Party is, by all accounts, expected to lead some members of the Conservative Party (the 120,000 or so individuals in whose hands the choice of a new Prime Minister rests) to favour a candidate for leader who is prepared to accept a no deal Brexit. Such a Prime Minister may continue to face opposition in Parliament to a no deal exit and the possibility of a repeat of the process by which Yvette Cooper and Oliver Letwin steered through legislation in April to require the Government to seek an extension to the Article 50 negotiating period.
Meantime other readers of the runes interpret the support in the European elections for the Liberal Democrats, Greens and SNP as an indicator of growing support for a fresh EU referendum (and in the latter case for a fresh referendum on Scottish independence).
It has become banal, but remains necessary, to advise our clients that a no-deal exit from the EU remains a live possibility. On how you might prepare for that see our guidance at http://www.brodies.com/brexit-group.