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Implementation periods Part 1:Avoiding the negotiating noose

By Martin Howe QC:

In this first part of his analysis of the legal and treaty ramifications of the Florence speech “implementation period” proposal, Martin Howe QC explains that:
  • The EU only has the legal power under Article 50 of the Treaty on European Union to agree transitional or interim arrangements once the destination to which the transition leads has been agreed, at least as a framework. There is no power under Article 50 for the EU to agree an open ended transitional period of the kind which many business leaders seem to expect in order to allow time for negotiation about the future relationship.
  • Because the EU cannot agree to a transitional period until the framework of the future relationship has been agreed, it is impossible for the EU to agree to a transitional period until late 2018 at the earliest. Hopes that such a transition can be agreed “by the end of this year” are naive and totally unrealistic.
  • The EU27's negotiating strategy dictates that they will not agree to a transition period until the UK has succumbed to their demands about the EU’s legally meritless financial claim, citizens rights, ECJ jurisdiction, and other matters. From the EU27's perspective, granting an interim period would let the UK off the hook, contrary to the EU27's strategy to force the UK up against the wall of the hard deadline for exit in March 2019.
  • It is quite possible however that the EU27 could make warm noises about agreeing to a transition in principle if other matters are agreed, but without legally committing themselves to it. This would create an extremely dangerous trap, since the dangling prospect of a transition period would create a noose round the UK’s neck as we defer preparation for a “no deal” exit. That noose would be drawn tight by a failure to conclude and ratify the withdrawal agreement at a late stage. The UK would then be exposed to caving in to unreasonable or impossible demands as a price of the getting the transition.
  • The only way of avoiding this noose is for the UK to be prepared for a no-deal exit, and carry on making preparations for a no-deal exit, right up to the point when (or if) an  implementation period deal is legally ratified, which is likely to be very close to our actual exit day if at all.
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