Charles Day

Does this EU small print mean Brexit has already happened?

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.

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