As ever, the Brexit negotiations continue to be strenuous. Last week, Michel Barnier, the EU’s chief negotiator, warned that a transitional period for a smooth UK exit from the bloc was “not a given.” In his speech, Mr Barnier contended that due to “substantial” disagreements over the terms of the transitional period, achieving such an arrangement remains difficult.

Attaining a transitional arrangement is one of the main goals of the government’s Brexit policy. In her speech in Florence, the PM, declared a desire for “an implementation period of around two years” after leaving the Union in March 2019. But issues such as EU citizens’ rights, and the role of the European Court of Justice during the transition, have shown this agreement will be hard to achieve.

But assuming that an agreement on a transition period is eventually attained, there are two particularly important legal questions which need to be answered. Firstly, what will be the legal basis for a transition period? Secondly, what domestic legislative mechanisms will have to be put in place to facilitate such a transition?

Unsurprisingly, the answers to these questions are not straightforward and there are a number of options available with regard to both, some more politically workable than others. This is the consequence of the unprecedented path that both the UK, and indeed the EU, is currently embarking upon, towards a destination which is not clear. But in order for the transition period to be as trouble-free as possible, the right legal foundations need to be determined.

To begin with, it ought to be decided what, in terms of EU law, will provide for the transitional agreement. The Council of the EU, in its supplementary directives released in January, was silent on this. It merely reiterated its guidelines from December last year, that “any…transitional arrangements must be clearly defined and precisely limited in time [and] subject to effective enforcement mechanisms.”

One way in which a transitional arrangement could be provided for is through the use of Article 50. This provision could be used to establish a defined period for transition as part of the UK’s withdrawal. It is important to note, however, that this would not be the same as extending the negotiations, as this would mean the UK maintains its membership during that period. In order to be consistent with the UK’s policy of exiting in March 2019, a transitional period under Article 50 would merely form part of the UK’s “framework for future cooperation” without actually deferring the exit date.

This is questionable though. Not only would such an arrangement likely require a qualified majority vote by the EU Member States in accordance with Article 50 itself, but it is not clear that the scope of Article 50 would allow for this in the first place.

Alternatively, a transition could be achieved through a separate arrangement. This could be done through Article 218 of the Treaty for the Functioning of the European Union, in which the EU could negotiate a bespoke “association agreement” with the UK as if it were a third country. This could be in place for just the transitional period and then the future trade relationship could be implemented at the end of that period. But this arrangement requires unanimity across Member States and consent from the EU Parliament.

These two options therefore depend upon, to a degree, the political appetite of the EU and whether such an arrangement would be desirable for the UK. That in itself may depend upon the specific terms agreed for the transitional period, which have so far proved divisive.

But consideration should also be given to the domestic arrangements for the UK. If the UK is intending to comply with EU obligations during the transition after leaving in 2019, as suggested by the Council’s directives, then the European Communities Act 1972 (ECA) would surely have to be amended. The Act uses membership as a basis for giving legal effect to EU law within the UK, but if membership ceases then the statute would have a nugatory effect. It would have to be amended on the basis of a transitional agreement, whatever that may be, so as to still give effect to EU law temporarily.

But this could clash with the EU (Withdrawal) Bill. Clauses three and four are designed to incorporate EU law into UK statute books. Yet the ECA would also have a similar result in giving those EU provisions legal effect anyway. This may result in a duplication of EU law within the UK, sourced from both the EU treaties and the UK statute books. Such a situation would be far from the smooth changeover that a transition period ought to provide. As such, additional changes would have to made to the Bill to avoid this confusion.

All these legalities are technical but are just as important as the political discussions and debates taking place at the fore. Even after exit day, these kinds of intricacies will not cease to end and will likely go on few years. If they are not dealt with competently, chaos awaits.

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