The heady drama when Britain and the EU agreed on a series of Brexit extensions earlier this year is hard to forget. But amidst the chaos, it's worth asking: did Britain accidentally leave the EU on 1 June? A badly-drafted EU law – which also challenges the idea of EU competence – seems to suggest so. So how did this apparent blunder happen? And why has no one noticed?
When Article 50 timed out on 29 March 2019, the UK and the EU agreed to extend to 12 April. When an extension is made it has to be done in both EU law and UK law. On that occasion, it was: both sides managed to pass proper laws. The EU one is here.
As we know, another extension was then sought, and that's where the trouble begins. The UK again drafted our extension properly. It did so by simply moving the deadline in the Act that says we leave to 31 October. But that’s not what the EU did.
Instead, the EU passed this. The ‘Articles’ are the bit which are actually law. The 14 paragraphs under “whereas” are just explanation. So note Article 2 on the third and final page of the document.
““This decision shall cease to apply on 31 May 2019 in the event that the United Kingdom has not held elections to the European Parliament in accordance with applicable Union law and has not ratified the Withdrawal Agreement by 22 May 2019.”
The vital words are in bold here. Have we ratified the Withdrawal Agreement? Nope. That means that this second extension of time ceased to apply, as it says, on the 31 May. So according to EU law, we’ve gone. We’ve been outside the EU, without a WA or an Free Trade Agreement, for a whole month and we’re still not all dead yet. Remarkable.
What that means is that, despite the threats over hard Brexit, the EU has chosen to ignore them this time. The Mayor of Calais has not been blocking ships. The VAT, designation of origin and currency border in Ireland has not been made less porous. This is despite EU law – which is sovereign in the EU27 – telling them they should do these things and maintain the EU's border; indeed they must do, it’s their law. It’s almost as though no one actually reads the laws the EU makes.
What are the counter arguments to this? I’ve tried to consider every possible interpretation of the quote above – but law means what it says. EU law is published in other languages, but its English version still has to be, and is, legally binding. In any event, the French text says the same – and “et” means “et”. Under EU law, we left on June 1.
It is fair to the EU to point out that pre-amble paragraph 11, under “whereas”, tells a completely different story. But that is only a declaration of intention and fine intentions mean nothing. The EU legally-binding text means what it says – not what they hoped it said.
The EU makes bad law all of the time. This isn’t new, it’s just not something we seem to admit in the UK. And before any damage is done, the so-called European Court of Justice will, presumably, fix it for the EU. (On a side note, I look forward to the ECJ telling us that ‘and has not’ in fact means ‘or’ in a sanctimonious way. It doesn’t, but that won’t matter).
But if – or when – that happens and the ECJ steps in, it leaves the UK with three rather obvious problems:
For most fair-minded people, regardless of how they voted, I thought GDPR would have sounded the death knell of the myth of EU competence. Surely it can die now? After all, how can anyone claim the EU are more competent than us now? How can anyone seriously suggest that the future of the UK needs the guiding beneficence of people who can’t apparently even do the simplest, yet crucially important, tasks properly? If the future involves AI and innovation, how could we just ‘trust’ the EU to do that for us and ask no questions?
It's worth reiterating, by the way, that the UK did do things properly. Here is our law granting an extension. So if the EU27 want to have competent, well-drafted law after Brexit, then perhaps we should offer to write it for them. If they ask nicely in the negotiation perhaps? But in the meantime, let’s stop pretending that the EU is amazing and we’re rubbish – that’s just not true. And this bungled Brexit law shows it.