Renegotiating the Withdrawal Agreement

On three different occasions, the withdrawal agreement which got signed by the European Union and the UK government got reviewed and rejected by the House of Commons. At the moment, there are some disputes regarding the chance of renegotiating the withdrawal agreement before the UK leaves the EU.

This article will make it clear if there is room renegotiating about the November 2018 withdrawal agreement. Further, if the UK parliament may block the UK from leaving the EU without any deal.

The deadline and extensions of Article 50

Article 50 about the Treaty on European Union(TEU) was the foundation of the initial negotiations, as well as the resultant withdrawal agreement. In fact, this explains the procedure an EU member state should follow to exit the EU.

According to Article 50(3), the EU treaties “ceases to apply to a questionable state starting from the day of entry in the force of the withdrawal agreement. Or, failure to that, then two years after issuing the withdrawal notification, unless the European Council has agreed with the concerned member state, and without opposition, it decides to prolong this duration.”

29th March 2019 was the deadline of the starting two-year duration. However, the UK government plus 27 other EU member states have without opposition agreed on two extensions of this duration. So, the recent day of leaving is on 31st October 2019. It is on this date that the UK will exit the EU, with the exception of these cases:

  • Article 50 has been revoked by the government, and the UK remains in the EU.
  • The government has requested and has been offered an extra extension of Article 50.
  • After approval, correction, and establishment of the withdrawal agreement by the UK and EU within the new extension duration.

To what extent is it possible to renegotiate the withdrawal agreement?

On 7th June, the Conservative and Unionist Party leader, Theresa May stepped down. However, there are suggestions that a future UK Prime Minister might receive a better deal for the UK by renegotiating the Withdrawal Agreement.

Indeed, Article 50 allows renegotiation or amendment of the withdrawal agreement at the extended duration. Moreover, it does not specify whatever should happen or not at this time. As a matter of fact, the adoption of the Withdrawal Agreement has already taken place, to cater to the Article 50 extensions.

Therefore, the UK has room for trying and renegotiating the Agreement under Article 50. This comprises of, for instance, the task of the UK paying a financial settlement to the EU. Or, renegotiating the Irish backstop.

What is the EU saying on reopening negotiations?

There has been consistent say from EU27 leaders, Jean-Claude Juncker who is the commission president, and Donald Tusk who is the EU president. They are on record saying time and again those renegotiations on the Withdrawal Agreement cannot and will not happen. For example, on 11th June, Mr. Juncker stated that the Agreement is not a treaty between him and Theresa May. Instead, it is a treaty between the UK and the EU. So, the next British Prime Minister must respect it.

Further, the EU stated the Withdrawal Agreement remains, although they are ready for more clarifications and extensions to the Political Declaration.

Legal barriers to re-opening the Withdrawal Agreement

The renegotiation has additional barriers. Decisions that binds the EU legally got adopted by the EU27, and the UK agreed on them after they were offered extensions to Article 50. In addition, these decisions are listed on the provisions of Article 50(3), and strictly prohibits the re-opening of the Withdrawal Agreement.

Further, the 22nd March European Council Decision and the 11th April EUCO Decision stated the condition for the extension. Both of them stated the extension “does not include even a single re-opening of the Withdrawal Agreement”. Also, on 22nd March and 11th April, the UK confirmed its agreement to the extensions and set conditions by Sir Tim Barrow, the Permanent Representative of UK to the EU.

Still, the procedure of exiting the EU is under the EU law, and it is part of the EU legal order, thus applying until the UK exits the EU. Thus, these decisions are legally binding for both the UK and the EU27. However, they can be revisited, although that requires the EU27’s political will for revisiting them, as well as the Withdrawal Agreement. Nonetheless, the political will is absent at the moment.

Can the “no-deal” Brexit be stopped by the parliament?

The opposition MPs on 12th June rejected the UK exiting the EU with no deal tabled a motion on the Business of the House. Its objective was to let MPs regulate parliamentary time on the 25th of June. And, maybe debate a bill connected to blocking a “no-deal” Brexit. However, the motion got defeated by 309 votes against 298, and it is reported to be the final way of the parliament preventing a no-deal Brexit.

This was a gift to the parliament to stop the “no-deal” Brexit. Since exiting the EU is an EU law procedure, the ‘no-deal’ Brexit can be avoided at the national level if:

  • The parliament ratifies or approves the Withdrawal Agreement Or,
  • The government without opposition revokes Article 50 and remains in the EU.

Too, the government or parliament has nothing else to do, which depends upon to block the ‘no-deal’ Brexit on the 31st of October.

In fact, the parliament cannot by itself block the ‘no-deal’ Brexit, as it needs support from the government. So, it might instruct the Prime Minister to request the EU for an additional extension of Article 50, for an automatic delay of ‘no-deal’ exit. But, the parliament managed to do this as expected through the Cooper-Letwin Bill in March. Also, it made another trial of doing so on 12th June. Nevertheless, the approval of the extension and the set conditions will be decided by the EU27, and not either the UK parliament or government.

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