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Published: 13 June 2017
Area of Law: Brexit

An accidental Brexit

Brexit negotiations are not starting well. The general election has already cut into a seriously short timetable and the political fallout is creating more delay. 
Some see the political upheaval as an opportunity to pull back from a hard Brexit. Politicians are now speaking of changing our negotiating objectives and perhaps even remaining in the customs union. But there are problems with these ideas.
Firstly, the Article 50 letter started a negotiation process with a fixed term of two years. Whilst the UK government can delay the start of negotiations, it can not delay the deadline. Any extension requires unanimous consent from all 27 other EU countries and it would be a brave (or reckless) politician to rely on that happening.
Secondly, the default position is a hard Brexit. In most trade negotiations the status quo continues unless the parties agree otherwise. Brexit is the other way around: if a negotiated agreement is not completed in time the UK automatically leaves the EU, the free trade area and the customs union. This would be the hardest kind of Brexit.
Thirdly, the EU negotiators do not have the scope to agree a softer Brexit. Their binding mandate requires “sufficient progress” to be made on citizens’ rights to remain, the Irish border and the exit bill before they can discuss a longer term deal. The negotiators simply have no mandate to explore a different approach to Brexit and there is insufficient time for that mandate to be changed.  
Despite the talk of a hard Brexit or a soft Brexit, it is looking increasingly likely that we are heading towards an accidental Brexit.

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