The United Kingdom will leave the EU by automatic operation of law on October 31 2019, unless something dramatic happens. Given the current fluid and erratic nature of British politics there is a chance that such an intervention will happen, and that exit is postponed again or the withdrawal process is even then revoked.
But if the UK does leave the EU on that date, the departure will change the legal position absolutely. The EU treaties will cease to apply and, as a matter of international law, the UK will no longer be a member state. Membership of the EU is binary, and the UK will be on the outside.
This matters, as it means Britain will be a “third country”. Article 50 will no longer be relevant. The fast-track route for an agreement that rests on Article 50 will be gone. Any deal between the UK and EU would have to follow the far more cumbersome process for external relationship and trade agreements, even if terms are similar or identical to the current draft agreement.
Some commentators seem not to realise that departure has this drastic effect. Vernon Bogdanor, a professor of politics, has suggested there could be some clever retrospective legislation that the UK parliament could pass deftly to yank the UK back into the EU.
Such a wheeze is impossible in law. Parliament can pass what legislation it likes after the departure, but rejoining the EU (or pretending by a legal fiction that the UK has never left) is beyond its competence. A divorcee cannot just wish a decree absolute away. The legal situation fundamentally changes a moment after departure.
Once out, the only way the UK can rejoin the EU is by applying under Article 49 (a provision that may become as well known as Article 50). In theory, such an application can be expedited, if there is unanimous political will. But it would normally take years and would not necessarily succeed. Even if the UK could rejoin, there is little or no chance the current advantageous rebates and opt-outs will resume.
Those who want to avoid Brexit on October 31 cannot therefore rely on retrospective legal gimmickry. An extension (or revocation) has to be in place before the deadline. Those who want the UK to leave on that date (either without a deal or with an amended deal) know this. That is why Prime Minister Boris Johnson’s team is now so strident: this is the one last heave, and then the UK will be irreversibly out.
There is no easy way to prevent such a departure. There are practical political impediments to a government of national unity coming in and requesting an extension, even if the current administration loses a vote of no confidence.
If the government does not change, there are significant procedural issues that could prevent a majority in parliament from passing primary legislation in time to mandate an extension (or revocation). There may well be a majority of members of parliament against no deal, but that does not matter unless the majority can be converted into effective action.
The next two or so months could have more significance for the eventual shape of any Brexit, if it happens at all, than the entire period from the referendum to date.
And it appears that it will, in effect, be shaped by a procedural battle of wits between the two Dominics: senior government adviser Dominic Cummings and the MP and former attorney-general Dominic Grieve. The former is urging a rush to leave before exit can be delayed by parliament; the latter will ensure that parliament has the widest possible role. What happens depends on who of these will be the dom Dom.
Like a legalistic penalty shootout, Brexit now depends on something as slight as an almost-random technical process. But that is all that is left. The debate on policy substance, to the extent that there has been any debate at all, has had little effect. Reality has impinged only to delay a need to make the final decision, not remove it. There is no time for a general election before 31 October, still less for a second referendum. Better methods of making the ultimate decision on Brexit have not worked or have not been tried: frantic scribbles on parliamentary order papers may be the only option.
But still the finality of a potential departure is not fully recognised. The airlock door will slam shut on the astronaut and there is no easy way back into the spacecraft. This brutal finality is written into the Treaty on the European Union itself, the highest form of EU law which neither inconvenience nor wishful thinking can gainsay. All those with power in UK politics appear to have the decisions of their political lifetimes to make.
The writer is a contributing editor of the Financial Times
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