Piet Eeckhout, Dean of UCL Laws and Academic Director of the UCL European Institute, argues that the Government’s plans to enshrine in law that the transition period can’t be extended could be both legally and politically problematic. 

The government is proposing to add a new clause to the Withdrawal Agreement Bill which will exclude an extension of the transition period. This would enshrine in UK law Boris Johnson’s commitment not to extend the transition period beyond 31 December 2020. Given Johnson’s large majority, this new clause is likely to pass in Parliament in January.  There is however a strong need to reconsider.

In legal terms, this clause is not a good-faith implementation of the Withdrawal Agreement. This is because the Withdrawal Agreement Bill is the vehicle through which the UK implements and expresses its consent to the Withdrawal Agreement. It is a precondition for ratification on the UK side.  However, through this change to the Bill, the UK would effectively kill the scope for an extension of the transition period, contrary to what the Withdrawal Agreement provides for.

This is problematic as an extension may benefit the EU as much as the UK. Most observers tend to view the extension as something the UK may want to ask for, perhaps due to the memories of the multiple UK requests for Article 50 extensions. However, the Withdrawal Agreement is neutral as to who should request a transition extension. Article 132(1) on ‘Extension of the transition period’ reads:

Notwithstanding Article 126, the Joint Committee may, before 1 July 2020, adopt a single decision extending the transition period for up to 1 or 2 years.

There is no requirement that a request must come from the UK. The Joint Committee will comprise EU and UK representatives, and will be co-chaired by the EU and the UK.

It is not implausible that, when negotiating the Agreement, the EU might want to request a transition extension via the Joint Committee. Even if the EU did not have this in mind, the text of the Withdrawal Agreement is clear that there is scope for an extension decision. The Withdrawal Agreement Bill would exclude this even before the Withdrawal Agreement enters into force, and before any negotiations on the future relationship have even started.

I do not see that as implementation in good faith, which is what international law and the Agreement itself require. Article 5 of the Withdrawal Agreement reads:

The Union and the United Kingdom shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement.

They shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from this Agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement.

As such, I do not think the EU should accept this, not least as it does not bode well for other implementation issues. If the UK is already testing the limits of what is permissible under the Withdrawal Agreement, what else might they attempt to do?

Nor do I think the Government could defend its position by saying that the Withdrawal Agreement Bill, once on the statute book, can be amended.  This is obviously true, but it is also true that the UK would be heavily signaling, from the start, that a provision of the Agreement (i.e. Article 132) is likely to be redundant. And this is a very important provision, as the length of the transition period is a key factor in determining and shaping the nature of the future relationship. It is clear that a shorter transition period could mean a less comprehensive and ambitious trade agreement.

Nor could the Government defend its action by stating that, on the international plane (i.e. in the Joint Committee) it could do what it likes, and that the Bill is merely an internal matter.  The Government could not lawfully extend, under the current Bill, which would mean that any extension, agreed in the Joint Committee, would become inoperable in the UK, save for a change to the legislation.  This is because the Withdrawal Agreement Implementation Act will be the legal basis in UK law for the continued application of EU law.

For these reasons, Johnson’s proposed changes to the Withdrawal Agreement Bill, which exclude an extension to the transition period, are in breach of the good-faith requirements outlined in Article 5 of the Withdrawal Agreement.  The EU may wish to contest this, and MPs need to reflect on what signal this will send, not only to the EU, but to all of the UK’s international partners.

Professor Piet Eeckhout is Dean of UCL Laws and Academic Director of the UCL European Institute.

Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.