April 27, 2020

The Insight article notes that due to the coronavirus, which has impacted on negotiations between the UK Government and the EU on the future relationship, some have considered the desirability of an extension to the Brexit transition period. The Government has repeatedly stated that it does not intend to request any extension.

The Insight article sets out the legal and procedural hurdles, both in the Withdrawal Agreement and in UK domestic law, to any extension of the UK’s post-Brexit transition period with the EU.

The article says that, under Article 132 of the Withdrawal Agreement, a one-off extension of the transition period is possible. Such an extension can be for no more than two years. It would need to be agreed by a decision of the UK-EU Joint Committee before 1 July 2020. The UK and EU would need to agree both the length of an extension and other terms, such as the UK’s financial contribution to the EU budget for the extended period.

However, s 15A of the EU (Withdrawal) Act 2018 prohibits UK Ministers from agreeing to an extension of the transition period in the Joint Committee. This provision was added to that Act by s 33 of the EU (Withdrawal Agreement) Act 2020. This means that, if the Government wanted to agree to an extension in the JC, it would first need to make sure that s 15A was repealed in domestic law by passing a further Act of Parliament.

The article notes that s 15A does not prevent a UK Government Minister from discussing or proposing an extension of the transition period. It is only the formal decision to extend that is prohibited.

Under s 15C of the EU (Withdrawal) Act 2018, UK ministers are prohibited from agreeing to use written procedure in the Joint Committee. This was added to the 2018 Act by s 35 of the EU (Withdrawal Agreement) Act 2020. However, the article says, it does not follow that Joint Committee decisions cannot legally be taken otherwise than “in person”. The Joint Committee has met by teleconference since being set-up because of Coronavirus. Nothing in the Withdrawal Agreement or in domestic law seems to prevent a Minister from agreeing to take a Joint Committee decision via teleconference.

The article then goes on to consider the consequences of an extension. All changes in domestic law for the end of the transition period come into force on “IP [implementation period] completion day”, which is defined in s 39 of the EU (Withdrawal Agreement) Act 2020 as 31 December 2020 at 11pm Greenwich Mean Time.

This definition can be amended by regulations, but only if the EU changes its laws about daylight saving time before the end of 2020. The change could then only be made to re-align the Withdrawal Agreement (which uses Central European Time) and the UK legislation (which uses Greenwich Mean Time).

Further, s 39 of the 2020 Act does not allow the Government to change “IP completion day” because of transition being extended. Therefore, Parliament would need to pass a further Act to facilitate those changes, if an extension were agreed. As the article notes, legislating during lockdown is challenging due to the Coronavirus situation. To read the article in full, click here.