Implementing a Brexit Transitional Period — Briefing Paper

With my colleagues Professor Kenneth Armstrong, Professor John Bell and Professor Mark Elliott, I have produced  a Brexit briefing paper on ‘Implementing Transition’. Following the Prime Minister’s speech in Florence on 22 September 2017, there is growing, albeit not universal, political consensus around the notion of a transitional – or ‘implementation’ – period. The intention is that such a period would bridge the gap between the UK’s formal departure from the European Union at the end of March 2019 and the conclusion and ratification of an agreement concerning a new, permanent relationship between the EU and the UK.

The prospect of such a transitional period raises obvious political issues. But it also raises important, and difficult, legal questions. At the EU level, questions arise about what legal vehicles might be available for the purpose of navigating the uncharted terrain in which both the EU and the UK presently find themselves. Meanwhile, at the domestic level, there are questions about how a transitional period might be legally accommodated – and, in particular, about whether the European Union (Withdrawal) Bill, currently making its way through the House of Commons, makes adequate provision for transition as distinct from full exit.

In this briefing paper, we examine these questions from both EU and domestic perspectives, and conclude that while the political obstacles to extending the two-year negotiation period set by Article 50 of the Treaty on European Union are doubtless very substantial, such an approach – coupled with the deferral of ‘exit day’ for domestic law purposes – would represent the cleanest and most straightforward legal solution.

A copy of ‘Implementing Transition: How Would it Work?’ can be downloaded from SSRN.

This content has been updated on October 16, 2017 at 10:01.