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To my understanding, the lawful government of the United Kingdom has decided, following due process, that:

  • The United Kingdom shall leave the European Union at a set date (currently 29 Mar 2019)
  • The United Kingdom shall not accept the deal negotiated with EU27
  • The United Kingdom shall not leave the European Union without a deal

Given that, what happens when the set date arrives (whether that is 29 Mar, or an extension is applied for and granted)?

Can EU27 simply assume that "Since your Parliament ruled out both the negotiated deal and a hard Brexit, we assume that all treaties are still valid."?

Can EU27 simply assume that "Since you did trigger Article 50 and declined the negotiated deal, we (regretfully) assume that all treaties now are void"?

EU27 are supposed to honor the decisions of UK's legal government, but what are the options if the stance of that government is literally "we cannot decide"?

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    Comments deleted. Please don't post comments which do not aim to improve the question. For more information on what comments should and should not be used for, see the help article on the commenting privilege.
    – Philipp ♦
    Mar 15, 2019 at 9:10
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    It's the 25th July and still all the options are left including remain, a second referendum, the negotiated withdrawal agreement by Theresa May, a no deal or something else. This just underlines that in politics rules are not set in stone. You can always change them if only the need is big enough. In many cases everything is possible for a long time.
    – NoDataDumpNoContribution
    Jul 24, 2019 at 22:08

5 Answers 5

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The United Kingdom shall not leave the European Union without a deal

That is not a legal decision. This is just a wish that Parliament has expressed.

If nothing else changes, as things currently stand¹ (2019-08-28T13:32Z), the UK is scheduled to leave without a deal on 2019-10-31 . Without any further agreement beyond this delay beyond the original Brexit date of 29 March, the UK will leave the EU on 31 October even if this happens against the wishes of Parliament. To change this, the UK must either:

  • Unilaterally withdraw article 50 and cancel Brexit; or
  • apply for another extension; or
  • accept the Withdrawal Agreement and leave at or before 2019-10-31.

Jon Worth regularly updates handy flowcharts on his weblog. The latest version is from 2019-08-28.

jonworth
Source: jonworth.eu, CC-BY-SA

¹The situation is still changing.

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    This is correct; the UK "made the decision" to leave the EU without a deal when it sent the Article 50 notification. Until it rescinds that, it stands.
    – pjc50
    Mar 14, 2019 at 9:32
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    Note that if the WA is agreed by Parliament, there will probably need to be a short extension anyway in order to enact all the (UK) legislation necessary to implement it.
    – Steve Melnikoff
    Mar 14, 2019 at 9:46
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    @SteveMelnikoff I would expect such a purely pragmatic extension to be mostly uncontroversial (unless a "we still don't know what we want" extension).
    – gerrit
    Mar 14, 2019 at 9:48
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    @gerrit: agreed. The EU have indicated that any extension needs to have a purpose; and this would certainly count, especially since the EU much prefers the WA to no deal.
    – Steve Melnikoff
    Mar 14, 2019 at 9:50
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    @GwenKillerby Are you sure? AFAIK parliamentary motions (unlike laws that are passed) have no legal force, and the government can, in theory, ignore them, although this may lead to parliament losing confidence in the government, which will force the government to step down. I'm 100% sure this is true in The Netherlands; I am 99% sure it is true in the UK as well.
    – gerrit
    Mar 18, 2019 at 8:33
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The EU isn't going to assume anything.

Article 50 is a formal process, triggered by the UK. If the UK neither accepts the deal, nor asks and get granted an extension, nor withdraws its intention to leave the EU, the UK will leave the EU, 00:00 March 30, 2019 (Brussels time). That's what the Article 50 procedure mean.

Everything between the EU and the UK follows a set procedure, and it's (mostly) the UK who determines which direction it goes:

  1. The UK accepts the deal. Then the UK leaves the EU on 2019-03-30 00:00 with a deal. Else,
  2. The UK withdraws its intention to leave the EU. Then the UK stays in the EU. Else,
  3. The UK asks for an extension, and the EU grants that extension. Then we go back to point 1, but with a different date. Else,
  4. The UK leaves the EU on 2019-03-30 00:00 with no deal.

No assumptions by the EU.

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    The question at hand here is who "The UK" actually is, when neither government or parliament can agree on a position. Imagine EU27 simply stating "We negotiated with your head of government and reached a deal. We will honour our part and expect the UK to do the same."
    – Guran
    Mar 14, 2019 at 11:41
  • Crazily enough, I believe the actual deadline is 2019-03-29 23:00 bbc.co.uk/news/uk-politics-32810887
    – Jontia
    Mar 14, 2019 at 11:45
  • @Abigail ah, my bad.
    – Jontia
    Mar 14, 2019 at 11:52
  • @Abigail True, that's SOP for EU negotiations.
    – Guran
    Mar 14, 2019 at 13:21
  • The BBC has a good flowchart of the current state of things, similar to the outline in this answer but without the "stay in EU" option: i.imgur.com/4sLvb8A.png via bbc.com/news/uk-politics-47564793
    – BurnsBA
    Mar 14, 2019 at 13:44
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The EU can't force the UK to stay. The UK can unilaterally withdraw from the treaties that make it part of the EU. The EU continuing to act as if the UK had not withdrawn would be pointless and detrimental to the EU, as the UK would not be obliged to follow any of the rules any more and thus have a huge trade advantage.

The UK could ask for an extension to the Article 50 process, which the EU could accept or deny.

The UK could unilaterally cancel brexit by withdrawing its Article 50 notification. EU courts have ruled that this is possible if done in good faith.

If the UK simply fails to make any decision then it will crash out of the EU on March 29th and there is little that the EU can actually do about it.

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  • The EU certainly cannot force the UK to stay. It could however, in theory, unilaterally decide to act as if the UK was still part of the union until the UK does something that would blatantly break the treaties (had they still been in effect). Granted, this would break a few WTO rules, but...
    – Guran
    Mar 14, 2019 at 13:16
  • @Abigail The Parliament, the Commission, the Court of Justice etc would naturally have to act witout UK participation. And I agree, this is a very naive speculation. 27 nations would never be able to keep up such a course of action in reality.
    – Guran
    Mar 14, 2019 at 13:49
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    @Guran what possible benefit would this have for the EU?
    – user
    Mar 14, 2019 at 13:59
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    @Guran but surely if the UK did leave without a deal it would immediately start doing deals with other countries, and has in fact already announced a new tariff schedule, all things that would start damaging the EU. In fact merely weakening the fixed requirements of being in the single market would immediately damage the EU. Remember that the single market is nearly 7 times as big as the UK market.
    – user
    Mar 14, 2019 at 14:53
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    We will not 'crash' out of the EU. Other than that, +1.
    – ouflak
    Mar 14, 2019 at 15:59
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We cannot know

Brexit or not is determined by EU law and politics and by UK law and politics at the same time.

EU Law

The European Court of Justice has ruled

The revocation must be decided following a democratic process in accordance with national constitutional requirements. This unequivocal and unconditional decision must be communicated in writing to the European Council.

Such a revocation confirms the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State and brings the withdrawal procedure to an end.

UK Law

Parliament is sovereign, and it cannot constrain its future actions.

  • The United Kingdom shall leave the European Union at a set date (currently 29 Mar 2019)
  • The United Kingdom shall not accept the deal negotiated with EU27
  • The United Kingdom shall not leave the European Union without a deal

These are in order. If later actions by Parliament conflict with earlier ones, the later actions win.

So currently, Parliament has stated "the UK shall not leave the EU without a deal". Any act of Parliament prior to that doesn't contradict it; it contradicts any earlier act.

On the other hand, Parliament has arguably not made an unequivocal and unconditional decision and communicated it to the European Council in writing (that last part is easy; someone can print out the bill and literally walk it over; the first part, less so).

The decision that the UK Parliament made is conditional (on no deal being made), or at least equivocal in its conditionalness.

Or, arguably, the UK has through its democratic process, in accordance with national constitutional requirements, now stated that at the end of March it will have withdrawn from Article 50 if there was no deal in place or extension; at that point, there is remaining condition, and "we won't leave the EU without a deal" is unequivocal.

The meaning of this action could even be decided retroactively: Imagine the day after Brexit, everyone proceeds as if it was a hard Brexit. Borders clank shut, etc.

That very day, Theresa May loses the confidence of the House, she gets replaced by someone whose position is that UK never left the EU due to this resolution, and they convince the ECJ to agree with them.

Or the exact same narrative can occur, except the ECJ could say "no, that isn't how it works, please apply for membership again".

There is no clear answer. This is the realm of politics, optics, and law without precedent.

Words on TV by politicians or pundits could fundamentally change what this action means, long after the action's meaning has seemingly settled.

Enough people state "it is non binding", and that actually makes it less binding. Enough people state "it is binding, Theresa May can no longer legally leave the EU without a deal", and that actually makes it more binding. Because popular interpretation of what was done can sway what it means.

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    Only the first of your list is a law, the second is an instruction to the Government and the third is an opinion expressed by the House of Commons. As things stand, we haven't got an extension as of time of writing, the only legal option is to leave on the 29th with no deal.
    – JGNI
    Mar 15, 2019 at 12:18
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    Unfortunately the misconstruing of indicative votes in Parliament as legally binding results in this answer being wrong.
    – Andrew Leach
    Mar 15, 2019 at 22:12
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    The 'Parliament' in the British doctrine that 'Parliament is sovereign', is made up of three parts - the House of Commons, the House of Lords, and the Monarch. It's sovereignty is only expressed when these three act together, producing an 'act of parliament'. None of the three points listed were decided in acts of parliament, although parliament did pass an act in 2017 which said that "The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom's intention to withdraw from the EU." legislation.gov.uk/ukpga/2017/9/pdfs/ukpga_20170009_en.pdf
    – bdsl
    Mar 16, 2019 at 22:20
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    Currently UK parliament has not (yet) amended the European Union (Withdrawal) Act 2018, so the current law of the land is that UK is leaving on 29th March. The march 14 vote (publications.parliament.uk/pa/cm201719/cmvote/190314v01.html) only says "this House has decisively rejected the Withdrawal Agreement [...] and the proposition that the UK should leave the European Union without a Withdrawal Agreement [..]; and (3) therefore instructs the Prime Minister to seek an extension to Article 50" - it's rejects a proposal of strategy, but doesn't alter previous law nor override anything.
    – Peteris
    Mar 22, 2019 at 8:47
  • @peteris It (the enabling legislation) said the PM may invoke article 50. It did not say "exit the EU on March 29". It didn't even say "no takebacks". It simply gave the PM permission to invoke article 50, from reading its plain text. "You must" and "no takebacks" are being read into it, as far as I can tell.
    – Yakk
    Mar 22, 2019 at 11:58
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Repeal of key documents

There are two main documents that are currently valid and prescribe how and when UK is leaving EU.

European Union (Withdrawal) Act 2018

The key act of UK law regarding Brexit is the European Union (Withdrawal) Act 2018 which states, among other things, that according to UK law UK will be out of EU on March 29. Any changes to Brexit won't be implemented in due process until/unless this act is amended - every extension requires that. It's not an important thing politically because, really, if you've got a majority willing to make an agreement, then it's a triviality to pass a motion altering the dates in this act, but it must be done to take effect.

For example, as the 'rejecting no deal' motion doesn't amend this act, the current UK law still means that if nothing changes, UK will consider it out of EU on March 29 even without a deal.

It's worth to note what exactly did the motion actually say. It did not pass law that the United Kingdom shall not leave the European Union without a deal. The only mandate in that motion was to instruct the PM to seek an extension, while adding 'context' and reasoning for that extension that includes "This House [..] notes that this House has decisively rejected [..] the proposition that the UK should leave the European Union without a Withdrawal Agreement and a Framework for the Future Relationship" - it's a statement of intent and opinion, but it is not a binding act of law passed in due process as the EU Withdrawal Act is.

Article 50 request itself

From the perspective of EU, on the other hand, the invocation of A50 is the primary document. It's worth noting that A50 doesn't explicitly prescribe any means to cancel it, and the wording on extension is quite clear "The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period."

If Britain can't decide, then on the date where any possible extension ends, the EU27 must (there's no choice on their part) assume that since UK did trigger article 50 and no withdrawal agreement has been passed, then all treaties cease to apply to UK.

The only other option is the ECJ ruling on A50 revocation which states that if a member state changes its mind and wants to stay in EU, then it can do so. Quoting the ruling, "The revocation must be decided following a democratic process in accordance with national constitutional requirements. This unequivocal and unconditional decision must be communicated in writing to the European Council. Such a revocation confirms the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State and brings the withdrawal procedure to an end."

Obviously, at the moment UK has not made an unequivocal and unconditional decision that it wants to stay in EU and bring the withdrawal procedure to an end, and has not notified the European Council about this, so currently this doesn't apply.

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