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Hard Brexit: postponed but not prevented

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The European Council agreed unanimously this week to allow the UK to delay its departure from the EU until 31 October 2019, averting the imminent prospect of a no-deal Brexit.

The European Council agreed unanimously this week to allow the UK to delay its departure from the EU until 31 October 2019, averting the imminent prospect of a no-deal Brexit. The wording of the final Decision reflects concerns voiced by EU leaders during a marathon six-hour summit about the detrimental EU-wide effects of a continued Brexit delay.

Beyond the headlines, however, the Decision also looks to shape the scope of the ongoing negotiation process and raises the prospect of a potentially earlier departure.  The Decision emphasises that the purpose of the extension is 'to allow for the further ratification of the Withdrawal Agreement', before ruling out expressly 'any re-opening' of that Agreement. If the UK is to leave the EU with any deal at all, it will be on the terms of Theresa May's deal, approved last November by the European Council but so far rejected by Parliament. The only other choices countenanced by the Decision are (a) that the UK revokes its Article 50 notification and remains in the EU, or (b) the extension ceases, and this week's events only postpone, rather than prevent, a no-deal Brexit.

The Decision may appear to provide breathing room for the UK to find a way forward, and reduce some of its emergency no-deal planning – on 11 April the Government stood down 6,000 civil servants seconded to help with operations. However, even under the Decision there is still the possibility that the UK leaves the EU with or without a deal before 31 October.  Unless it finally ratifies the Withdrawal Agreement by 22 May, the UK will be obliged to hold European Parliamentary elections. Should it refuse to do so and should the UK not participate , exit day will be brought forward to 31 May. Therefore, the need for companies to continue, finalise or improve their preparations for all Brexit eventualities remains pressing.

There is nothing in the Decision that prevents the EU from granting yet another extension, but by 31 October the UK could find itself in exactly the same position it was on 10 April, unless it manages to surmount the current impasse through so-far unachieved compromise, or perhaps even a general election or second referendum that provides a fresh mandate regarding the country's future.

The full text of the Decision is available here

Co-Authored by Andrew Hood and Jonathan Peters

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