Not all options for extending the transition period are closed
This week, Boris Johnson, UK prime minister, has formally told EU leaders that the UK won’t ask for an extension to the transition period. He said that the UK will leave the Brexit transition period “whatever happens” – a deal or no deal – at the end of this year. But there are good reasons to think that this might not be the UK's final word on the extension just yet.
Under the withdrawal treaty, the two sides could choose to prolong the transition period before the end of June. The UK’s refusal to do so means that there is now less than six months for the two sides to find a deal for their long-term relationship, ratify it in their respective parliaments, and implement it on the ground. By the end of the year, the British government also has to deliver new arrangements agreed in the Northern Ireland protocol, aimed at preventing the need for a border on the island of Ireland. If this can't be done, Britain will leave the EU without a trade deal.
The logic of the UK government’s position is that an extension would simply prolong the negotiating stalemate, while burning its limited leverage to find agreement. Theresa May’s repeated failings, including her two prior attempts at extension, ominously hang around Downing Street like a ghost: an extension offers extra time but resolves little. It is true that what stands in the way of a deal is deep political disagreement over how closely the UK should stay in the EU's regulatory and institutional sphere. More time, without the incentives to find agreement, won’t necessarily resolve this sensitive issue.
Nor would it have been easy for Boris Johnson to agree to an extension. The EU Withdrawal Act—the legislation which took the UK out of the EU—prohibits any UK minister from agreeing to an extension in the joint committee. If the prime minister were to prolong the transition, he would have to revoke Section 15A of the Withdrawal Act through amending legislation. For this, Johnson would have had to make a case to his MPs not only for the extended transition, but also for Britain's continued contribution to EU budget. This, without a future deal in hand, would have been an impossible sell to many of his MPs who are desperate to end Britain's ties with the EU.
However, in making this choice, the prime minister has taken a big gamble. The “no extension” policy has effectively become Boris Johnson’s doomsday machine, which we are told cannot be halted once begun. Without the EU agreeing to a deal by the end of this year, this doomsday machine would deliver a disruptive no-deal by default. The prime minister's calculation is that the time pressure will soften the EU’s stance on key issues, and that Angela Merkel, German chancellor who will take over the EU’s rotating presidency from July, will not let the talks collapse on her watch. If this fails, the government's calculation goes, the grave impacts of no-deal could be disguised as the collateral damage of the pandemic.
Such a strategy is credible only if there is no way to switch off the process. But the reality is that not all options for extending the transition period have been exhausted. True, the withdrawal treaty set a hard deadline for deciding on the extension by the end of June and, after this date, one door has closed. But there are two other legal routes open to the UK if it ever changed its mind.
The first is that the withdrawal agreement, as an international treaty, can always be amended by the parties who voluntarily entered it. This means that, if the UK and the EU decided to agree to a new extension at a later date, they could amend the agreement through a mutual decision taken at the joint committee.
The second option is more plausible. The two sides could agree to a new time-limited standstill period through the future treaty. This wouldn’t be a blanket extension for a year or two, but an actual implementation period after the political deal has been found in the autumn, giving businesses the time they need to prepare for new trading arrangements.
Neither option would be straightforward. The former would require a lot of political goodwill from Brussels to change the withdrawal treaty, not least because EU lawyers would need to find a suitable “legal basis” in lieu of the original but now-expired Article 50. Furthermore, a single line in the 500-page withdrawal agreement—contained in Article 166—prohibits the joint committee from amending the extension clause, so the UK would need to make a solid legal case that changing the agreement is possible under general principles of public international law, the 1969 Vienna Convention. The latter option, on the other hand, presumes that the future deal can be agreed and ratified in time, which is far from certain.
Boris Johnson will undoubtedly insist that his decision against the extension is final. But the prime minister and his advisors would be best off keeping all the options in his back pocket. It is far from certain that, if it really came to it, his voters would support no-deal in the midst of a recession. Nor is it clear that his gamble will actually deliver a deal.