There is a bloke named Andrew Wyatt who writes a blog called Brexitisdoomed and is obviously a dedicated, not to say completely obsessed, remainer. I don't know him but I see from his profile he is a Dr and previously had a blog called killbrexitnow.be so I assume he lived or lives in Belgium. He has written some blog posts that are quite interesting with links to various technical arguments about the transition period and the referendum itself. He seems convinced one or other of these is enough to stop Brexit and I hope he is right, but I suspect he isn't although I confess I don't know why.
Dealing firstly with the transition period. He claims that where a legal mechanism to achieve a particular object is expressed in European Union Law it is that legal mechanism which must be used to achieve that objective. The legal mechanism provided in Article 50 of the Treaty on European Union to allow the status quo to be preserved is an extension of the two-year negotiation period specified in Article 50 TEU. To attempt to use another mechanism (i.e a transition period) is to attempt to circumvent European Union Law, according to Wyatt.
So the Commission and the UK are doing something fundamentally against EU law by introducing a transition period in the first place.
But, he then says the Withdrawal Agreement (WA), which would normally be subject to qualified majority voting because it's an exclusive EU competence, changes if it includes a transition period (TP), assuming we accept a TP is legal in the first place. Because some impacts of the TP will be on areas of the Internal Market, Transport and Energy, which are shared competences note, it becomes a mixed agreement that has to be "ratified by each Member State in accordance with its national requirements which, in some Member States, includes ratification by national and/or regional parliaments.
"Ratification of a Mixed Agreement may take two years. There is no realistic prospect of the currently structured Withdrawal Agreement having the necessary legal effect and being ratified as a Mixed Agreement on a timescale that prevents a “No Deal” Brexit beginning on 30th March 2019".
His full argument is (HERE) if you're interested.
He concludes:
"There is no realistic prospect of the currently structured Withdrawal Agreement having the necessary legal effect and being ratified as a Mixed Agreement on a timescale that prevents a “No Deal” Brexit beginning on 30th March 2019".
Thus, to Dr Wyatt a no deal outcome is the legal corollary to what we've done. However, he also thinks the consequences so catastrophic the government will be forced to cancel Brexit:
"To avoid a “No Deal” Brexit on 30th March 2019 the Prime Minister has two options:
- To ask the EU27 to agree to extend the negotiation period of two years in Article 50 TEU. An extension of the negotiation period would require the unanimous agreement of the EU27.
- To inform the EU27 that the UK no longer wishes to leave the European Union.
"Each of those options has its problems, whether political, economic or otherwise".
Interesting? I assume nothing will come of it because nobody has the nerve to start a legal challenge. This is what we have come to. But one day his arguments might be tested in court, you never know.
