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To my understanding, the lawful government of the United Kingdom has decided, following due process, that:

  • The United Kingdom shall leave the European Union at a set date (currently 29 Mar 2019)
  • The United Kingdom shall not accept the deal negotiated with EU27
  • The United Kingdom shall not leave the European Union without a deal

Given that, what happens when the set date arrives (whether that is 29 Mar, or an extension is applied for and granted)?

Can EU27 simply assume that "Since your Parliament ruled out both the negotiated deal and a hard Brexit, we assume that all treaties are still valid."?

Can EU27 simply assume that "Since you did trigger Article 50 and declined the negotiated deal, we (regretfully) assume that all treaties now are void"?

EU27 are supposed to honor the decisions of UK's legal government, but what are the options if the stance of that government is literally "we cannot decide"?

Philipp
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Guran
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    Comments deleted. Please don't post comments which do not aim to improve the question. For more information on what comments should and should not be used for, see the help article on the commenting privilege. – Philipp Mar 15 '19 at 09:10
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    It's the 25th July and still all the options are left including remain, a second referendum, the negotiated withdrawal agreement by Theresa May, a no deal or something else. This just underlines that in politics rules are not set in stone. You can always change them if only the need is big enough. In many cases everything is possible for a long time. – NoDataDumpNoContribution Jul 24 '19 at 22:08

5 Answers5

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The United Kingdom shall not leave the European Union without a deal

That is not a legal decision. This is just a wish that Parliament has expressed.

If nothing else changes, as things currently stand¹ (2019-08-28T13:32Z), the UK is scheduled to leave without a deal on 2019-10-31 . Without any further agreement beyond this delay beyond the original Brexit date of 29 March, the UK will leave the EU on 31 October even if this happens against the wishes of Parliament. To change this, the UK must either:

  • Unilaterally withdraw article 50 and cancel Brexit; or
  • apply for another extension; or
  • accept the Withdrawal Agreement and leave at or before 2019-10-31.

Jon Worth regularly updates handy flowcharts on his weblog. The latest version is from 2019-08-28.

jonworth
Source: jonworth.eu, CC-BY-SA

¹The situation is still changing.

gerrit
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    This is correct; the UK "made the decision" to leave the EU without a deal when it sent the Article 50 notification. Until it rescinds that, it stands. – pjc50 Mar 14 '19 at 09:32
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    Note that if the WA is agreed by Parliament, there will probably need to be a short extension anyway in order to enact all the (UK) legislation necessary to implement it. – Steve Melnikoff Mar 14 '19 at 09:46
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    @SteveMelnikoff I would expect such a purely pragmatic extension to be mostly uncontroversial (unless a "we still don't know what we want" extension). – gerrit Mar 14 '19 at 09:48
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    @gerrit: agreed. The EU have indicated that any extension needs to have a purpose; and this would certainly count, especially since the EU much prefers the WA to no deal. – Steve Melnikoff Mar 14 '19 at 09:50
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    @gerrit What would be required for a unilateral withdrawal of article 50? A referendum? – Kyle Wardle Mar 14 '19 at 13:27
  • @KyleWardle probably only the PM deciding to withdraw, but that would realistically only happen with the consent of the Commons – Caleth Mar 14 '19 at 13:29
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    @KyleWardle, revoking the Article 50 notification (not the article itself, of course) would have to be unequivocal, unconditional, and in agreement with UK constitutional requirements. If the PM simply sends a letter, it might be challenged on these grounds. – o.m. Mar 14 '19 at 15:27
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    @KyleWardle UK government needs to send notice to withdraw. A referendum isn't needed, but may reduce backlash when it's done. I don't think government even needs consent from the commons, but I think we'll get some very 'interesting' discussions about the relative roles and powers of government and parliament if that is ever put to the test. – Cubic Mar 14 '19 at 15:27
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    @KyleWardle [...] an Article 50 notification may be revoked unilaterally by the notifying member without the permission of the other EU members, provided the state has not already left the EU, and provided the revocation is decided “following a democratic process in accordance with national constitutional requirements”. -- that decision by the ECJ is what we got. – Yakk Mar 14 '19 at 18:58
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    @KyleWardle from the of the AG of the EU (emphasis is mine): Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements[...] That probably means it needs to go through parliament because article 50 was triggered at the direction of parliament. – JJJ Mar 15 '19 at 11:12
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    Would they not also have to pass a bill to amend the EU Withdrawal Act? – JeffUK Mar 15 '19 at 11:19
  • @JeffUK "Exit day" can be redefined by a Minister of the Crown using regulations. If Brexit is to be cancelled, the Act should be repealed (which requires another Act), but it could theoretically be handled by setting Exit Day as a date in ten thousand years' time. – Andrew Leach Mar 15 '19 at 22:07
  • Of course it's NOT "just a wish" that parliament expressed. That's a silly notion (probably based on a profound contempt of parliament? Speculating.). No, the vote last Friday was a parliamentary decision on an instruction for the government how to execute that decision. It can't be ignored. It's not a law, that's correct, but it does have severe legal value. In absence of a #PeoplesVote, it IS TOO, the will of the people. Because that is how democracies are set up. – GwenKillerby Mar 16 '19 at 12:13
  • Comments are not for extended discussion; this conversation has been moved to chat. – Sam I am says Reinstate Monica Mar 18 '19 at 05:39
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    @GwenKillerby Are you sure? AFAIK parliamentary motions (unlike laws that are passed) have no legal force, and the government can, in theory, ignore them, although this may lead to parliament losing confidence in the government, which will force the government to step down. I'm 100% sure this is true in The Netherlands; I am 99% sure it is true in the UK as well. – gerrit Mar 18 '19 at 08:33
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    @gerrit No, I am sure. A government cannot just ignore parliamentary votes, They are not there to just chat. If any government can ignore parliament whenever it wants, then what are they therefor? So, since parliaments are still around.....QED. I'll admit that these are extraordinary times, but it seems May has some, barely detectable decency left in her, – GwenKillerby Mar 20 '19 at 05:02
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    @GwenKillerby Parliament is there to control the government, pass legislation, and other tasks. A government cannot govern without the confidence of parliament, if parliament passes a motion of no confidence then the government can no longer govern and thus be. It is unusual for the government to not carry out a motion, but it does happen, and when it does, parliament may decide it considers the government to be in contempt, such as happened recently. – gerrit Mar 20 '19 at 08:46
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    @AndrewLeach it can not be theoretically handled by setting Exit Day as a date in ten thousand years time; as that doesn't meet the criteria of ECJ ruling (unconditional decision to bring the withdrawal process to an end), would not be valid grounds for considering A50 as revoked, and thus would require an unanimous decision from all other EU countries to accept a ten thousand year extension to Brexit. – Peteris Mar 22 '19 at 09:27
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    "Without an agreement, the UK will leave the EU on 12 April, even against the wishes of Parliament." is not literally true - the extension isn't automatic, a bunch of "rituals" need to be performed, and if the parliament does nothing, UK will leave on 29th March. The parliament needs to amend UK law to implement the extension and change the Brexit date to 12th April; and there needs to be a formal request for that particular extension. Those things are somewhat trivial, but if they're not done (possibly intentionally as part of some weird political play) then the extension doesn't happen. – Peteris Mar 22 '19 at 09:31
  • @Peteris Thanks, I have edited the answer. Of course, since Parliament approved the UK government requesting the extension in the first place, it would be very strange if Parliament then did not ratify (if that is the right word) this request being approved. But strange things have happened! – gerrit Mar 22 '19 at 09:50
  • @gerrit: It seems like May will try to get her deal passed again on Monday, pitting it against whatever MPs back (or fail to back) then. Also, if the past few months is any indicator, she might very well try to raise her deal from the grave again at the last minute if that fails too. IMHO crossing off MV3 completely is premature. https://twitter.com/GuardianHeather/status/1111654741011021824 – Denis de Bernardy Mar 29 '19 at 15:57
  • @DenisdeBernardy There's only so many variations she can try to circumvent the Speaker applying the rule to not keep voting on the same thing repeatedly. He's blocked an attempt to vote on this once before, I would not expect Bercow to simply allow a repeat of todays vote. – gerrit Mar 29 '19 at 16:09
  • @gerrit: Nor would I, but she's about as stubborn as a mule, and creative enough to get today's vote, so who knows... [Grabs more popcorn.] :D – Denis de Bernardy Mar 29 '19 at 16:14
  • @DenisdeBernardy That's it, she can change the motion to add "and free popcorn for press and public" ;-) – gerrit Mar 29 '19 at 16:39
  • which of the three points does the current situation fall into? – user17915 Jul 03 '19 at 07:52
  • @user17915 The second ("apply for a longer extension"). I've suspended keeping this article updated with every new development. – gerrit Jul 03 '19 at 07:58
  • The percentages on the flowchart seem wildly speculative. And I'm slightly disappointed to have lost the "What next" @ PointInTime information we had. – Jontia Jul 24 '19 at 12:18
  • @Jontia Yes, although the scenarios seem plausible, the quantification of their likelihoods appear wildly speculative. What do you mean by the "What next" @ PointInTime? Something I deleted from a previous iteration of the answer? I've made it CW so feel free to edit it as you please. – gerrit Jul 24 '19 at 12:23
  • @Jontia yes, in the end I think there will be some (perceived) Conservative infighting (ERG+PM vs others in the parliamentary Conservative party, mostly for show, they are bound by preserving the party). Johnson & the ERG will insisting on leaving per their promise, the others will not agree. In the end, as time passes by, there will (most likely, I think) be an extension with the ERG and Johnson opposing in the strongest terms (but without any actions that will cost the party, so no election, no second referendum, and no party breakup). I.e., nobody in the party loses face and they buy time. – JJJ Jul 24 '19 at 12:25
  • @gerrit I did mean the various points in time that the previous edits covered. Ultimately what we'd end up with would be an actual wiki page with half a dozen answer for "WhatNext" in April, July, October... But keeping it up to date is probably cleaner in the long run. – Jontia Jul 24 '19 at 12:48
  • @Jontia I don't intend to write the history of Brexit, in particularly not historical speculations that did not materialise. The previous revisions of the answer are available for those who want to look into that. – gerrit Jul 24 '19 at 13:03
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    @Jan You're right — corrected. – gerrit Aug 28 '19 at 15:21
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The EU isn't going to assume anything.

Article 50 is a formal process, triggered by the UK. If the UK neither accepts the deal, nor asks and get granted an extension, nor withdraws its intention to leave the EU, the UK will leave the EU, 00:00 March 30, 2019 (Brussels time). That's what the Article 50 procedure mean.

Everything between the EU and the UK follows a set procedure, and it's (mostly) the UK who determines which direction it goes:

  1. The UK accepts the deal. Then the UK leaves the EU on 2019-03-30 00:00 with a deal. Else,
  2. The UK withdraws its intention to leave the EU. Then the UK stays in the EU. Else,
  3. The UK asks for an extension, and the EU grants that extension. Then we go back to point 1, but with a different date. Else,
  4. The UK leaves the EU on 2019-03-30 00:00 with no deal.

No assumptions by the EU.

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    The question at hand here is who "The UK" actually is, when neither government or parliament can agree on a position. Imagine EU27 simply stating "We negotiated with your head of government and reached a deal. We will honour our part and expect the UK to do the same." – Guran Mar 14 '19 at 11:41
  • Crazily enough, I believe the actual deadline is 2019-03-29 23:00 https://www.bbc.co.uk/news/uk-politics-32810887 – Jontia Mar 14 '19 at 11:45
  • @Abigail ah, my bad. – Jontia Mar 14 '19 at 11:52
  • @Abigail True, that's SOP for EU negotiations. – Guran Mar 14 '19 at 13:21
  • The BBC has a good flowchart of the current state of things, similar to the outline in this answer but without the "stay in EU" option: https://i.imgur.com/4sLvb8A.png via https://www.bbc.com/news/uk-politics-47564793 – BurnsBA Mar 14 '19 at 13:44
  • @Abigail The chart seems to imply "No Brexit" is only possible after May 23, which seems to be different from the "stay in EU" option in this answer. I was under the impression there could be a backtrack referendum at any time (which is not what the BBC chart implies), but perhaps I don't fully understand the situation. – BurnsBA Mar 14 '19 at 14:58
  • @Abigail is it ok if I edit in another possibility?: "The UK asks for an extension, but the EU denies it. The UK leaves on the March 29th, 2019 at 23:00 (UK time)." – ouflak Mar 14 '19 at 15:57
  • @Abigail, I guess I read Point 4 to mean, "The UK does nothing (effectively) and the default position takes place". That's quite a bit different than the UK actually voting for an extension, seeking one, and being denied. – ouflak Mar 14 '19 at 16:16
  • Just for reference, that would be 11pm GMT on March 29th – Sam Mar 21 '19 at 13:43
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The EU can't force the UK to stay. The UK can unilaterally withdraw from the treaties that make it part of the EU. The EU continuing to act as if the UK had not withdrawn would be pointless and detrimental to the EU, as the UK would not be obliged to follow any of the rules any more and thus have a huge trade advantage.

The UK could ask for an extension to the Article 50 process, which the EU could accept or deny.

The UK could unilaterally cancel brexit by withdrawing its Article 50 notification. EU courts have ruled that this is possible if done in good faith.

If the UK simply fails to make any decision then it will crash out of the EU on March 29th and there is little that the EU can actually do about it.

user
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  • The EU certainly cannot force the UK to stay. It could however, in theory, unilaterally decide to act as if the UK was still part of the union until the UK does something that would blatantly break the treaties (had they still been in effect). Granted, this would break a few WTO rules, but... – Guran Mar 14 '19 at 13:16
  • @Abigail The Parliament, the Commission, the Court of Justice etc would naturally have to act witout UK participation. And I agree, this is a very naive speculation. 27 nations would never be able to keep up such a course of action in reality. – Guran Mar 14 '19 at 13:49
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    @Guran what possible benefit would this have for the EU? – user Mar 14 '19 at 13:59
  • @user Would France benefit from enforcing a strong customs wall against the UK? Would a german company with a british branch benefit from extra bureaucracy? – Guran Mar 14 '19 at 14:11
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    @Guran but surely if the UK did leave without a deal it would immediately start doing deals with other countries, and has in fact already announced a new tariff schedule, all things that would start damaging the EU. In fact merely weakening the fixed requirements of being in the single market would immediately damage the EU. Remember that the single market is nearly 7 times as big as the UK market. – user Mar 14 '19 at 14:53
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    We will not 'crash' out of the EU. Other than that, +1. – ouflak Mar 14 '19 at 15:59
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We cannot know

Brexit or not is determined by EU law and politics and by UK law and politics at the same time.

EU Law

The European Court of Justice has ruled

The revocation must be decided following a democratic process in accordance with national constitutional requirements. This unequivocal and unconditional decision must be communicated in writing to the European Council.

Such a revocation confirms the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State and brings the withdrawal procedure to an end.

UK Law

Parliament is sovereign, and it cannot constrain its future actions.

  • The United Kingdom shall leave the European Union at a set date (currently 29 Mar 2019)
  • The United Kingdom shall not accept the deal negotiated with EU27
  • The United Kingdom shall not leave the European Union without a deal

These are in order. If later actions by Parliament conflict with earlier ones, the later actions win.

So currently, Parliament has stated "the UK shall not leave the EU without a deal". Any act of Parliament prior to that doesn't contradict it; it contradicts any earlier act.

On the other hand, Parliament has arguably not made an unequivocal and unconditional decision and communicated it to the European Council in writing (that last part is easy; someone can print out the bill and literally walk it over; the first part, less so).

The decision that the UK Parliament made is conditional (on no deal being made), or at least equivocal in its conditionalness.

Or, arguably, the UK has through its democratic process, in accordance with national constitutional requirements, now stated that at the end of March it will have withdrawn from Article 50 if there was no deal in place or extension; at that point, there is remaining condition, and "we won't leave the EU without a deal" is unequivocal.

The meaning of this action could even be decided retroactively: Imagine the day after Brexit, everyone proceeds as if it was a hard Brexit. Borders clank shut, etc.

That very day, Theresa May loses the confidence of the House, she gets replaced by someone whose position is that UK never left the EU due to this resolution, and they convince the ECJ to agree with them.

Or the exact same narrative can occur, except the ECJ could say "no, that isn't how it works, please apply for membership again".

There is no clear answer. This is the realm of politics, optics, and law without precedent.

Words on TV by politicians or pundits could fundamentally change what this action means, long after the action's meaning has seemingly settled.

Enough people state "it is non binding", and that actually makes it less binding. Enough people state "it is binding, Theresa May can no longer legally leave the EU without a deal", and that actually makes it more binding. Because popular interpretation of what was done can sway what it means.

Peter Mortensen
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    Only the first of your list is a law, the second is an instruction to the Government and the third is an opinion expressed by the House of Commons. As things stand, we haven't got an extension as of time of writing, the only legal option is to leave on the 29th with no deal. – JGNI Mar 15 '19 at 12:18
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    Unfortunately the misconstruing of indicative votes in Parliament as legally binding results in this answer being wrong. – Andrew Leach Mar 15 '19 at 22:12
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    The 'Parliament' in the British doctrine that 'Parliament is sovereign', is made up of three parts - the House of Commons, the House of Lords, and the Monarch. It's sovereignty is only expressed when these three act together, producing an 'act of parliament'. None of the three points listed were decided in acts of parliament, although parliament did pass an act in 2017 which said that "The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom's intention to withdraw from the EU." http://www.legislation.gov.uk/ukpga/2017/9/pdfs/ukpga_20170009_en.pdf – bdsl Mar 16 '19 at 22:20
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    Currently UK parliament has not (yet) amended the European Union (Withdrawal) Act 2018, so the current law of the land is that UK is leaving on 29th March. The march 14 vote (https://publications.parliament.uk/pa/cm201719/cmvote/190314v01.html) only says "this House has decisively rejected the Withdrawal Agreement [...] and the proposition that the UK should leave the European Union without a Withdrawal Agreement [..]; and (3) therefore instructs the Prime Minister to seek an extension to Article 50" - it's rejects a proposal of strategy, but doesn't alter previous law nor override anything. – Peteris Mar 22 '19 at 08:47
  • @peteris It (the enabling legislation) said the PM may invoke article 50. It did not say "exit the EU on March 29". It didn't even say "no takebacks". It simply gave the PM permission to invoke article 50, from reading its plain text. "You must" and "no takebacks" are being read into it, as far as I can tell. – Yakk Mar 22 '19 at 11:58
  • @Yakk as you mention "the enabling legislation that said the PM may invoke article 50" I assume you mean European Union (Notification of Withdrawal) Act 2017 which did what you say. I'm talking about a different act, the European Union (Withdrawal) Act 2018, which does specify that the act by which UK joined EU (European Communities Act 1972) is repealed and sets the effective exit date March 29. It doesn't specify "no takebacks", but it's binding law unless and until explicitly repealed. – Peteris Mar 22 '19 at 14:32
  • @peteris the repeal of that law doesn't remove the UK from the EU. It simply makes UK law no longer subordinate to EU law, which the ECJ disagrees with, and would violate UK treaties with the EU and its members. Ie, it makes the UK a treaty breaker and in violation of its obligations under the EU. I suspect it could cause hige liabilities for companies and people who do business both in and outside the UK, as ECJ may find breaking EU law in the UK remains illegal, while UK courts disagree. (UK was part of EU before that law; repealing it is not the EU exit procedure) – Yakk Mar 22 '19 at 16:55
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Repeal of key documents

There are two main documents that are currently valid and prescribe how and when UK is leaving EU.

European Union (Withdrawal) Act 2018

The key act of UK law regarding Brexit is the European Union (Withdrawal) Act 2018 which states, among other things, that according to UK law UK will be out of EU on March 29. Any changes to Brexit won't be implemented in due process until/unless this act is amended - every extension requires that. It's not an important thing politically because, really, if you've got a majority willing to make an agreement, then it's a triviality to pass a motion altering the dates in this act, but it must be done to take effect.

For example, as the 'rejecting no deal' motion doesn't amend this act, the current UK law still means that if nothing changes, UK will consider it out of EU on March 29 even without a deal.

It's worth to note what exactly did the motion actually say. It did not pass law that the United Kingdom shall not leave the European Union without a deal. The only mandate in that motion was to instruct the PM to seek an extension, while adding 'context' and reasoning for that extension that includes "This House [..] notes that this House has decisively rejected [..] the proposition that the UK should leave the European Union without a Withdrawal Agreement and a Framework for the Future Relationship" - it's a statement of intent and opinion, but it is not a binding act of law passed in due process as the EU Withdrawal Act is.

Article 50 request itself

From the perspective of EU, on the other hand, the invocation of A50 is the primary document. It's worth noting that A50 doesn't explicitly prescribe any means to cancel it, and the wording on extension is quite clear "The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period."

If Britain can't decide, then on the date where any possible extension ends, the EU27 must (there's no choice on their part) assume that since UK did trigger article 50 and no withdrawal agreement has been passed, then all treaties cease to apply to UK.

The only other option is the ECJ ruling on A50 revocation which states that if a member state changes its mind and wants to stay in EU, then it can do so. Quoting the ruling, "The revocation must be decided following a democratic process in accordance with national constitutional requirements. This unequivocal and unconditional decision must be communicated in writing to the European Council. Such a revocation confirms the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State and brings the withdrawal procedure to an end."

Obviously, at the moment UK has not made an unequivocal and unconditional decision that it wants to stay in EU and bring the withdrawal procedure to an end, and has not notified the European Council about this, so currently this doesn't apply.

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