The recent publication of the Scottish Government's strategy paper "Coronavirus (COVID-19): framework for decision making" brought (the anticipated) confirmation that the restrictions that have become the "new normal" are likely to be around for much, if not all of this year (and beyond). The strain this has already put (and will continue to do so) on businesses, public bodies and individuals is significant.

At the same time, negotiations between the UK and the EU on their future relationship beyond 31 December 2020 are not only facing technical challenges (all negotiations are being held via video-conferencing); the plan of negotiating a full post-Brexit trade and partnership agreement in the limited time frame that is available is quite ambitious, to say the least. Another "no-deal" cliff edge at the end of the year is not unthinkable.

For many, this raises the question whether continuing to rule out any extension to the transition period (which remains the UK Government's position) is the best way forward. In this blog we explain some of the technicalities of an extension of the transition period.

What is the current position?

The UK formally left the EU on 31 January 2020 and is currently in the transition period provided for in Article 126 of the Withdrawal Agreement. During this period, the UK continues to follow EU law (with a few exceptions) despite no longer being a Member State. The transition period expires (if no extension is agreed) on 31 December 2020.

Article 132 of the Withdrawal Agreement allows for the EU-UK Joint Committee to adopt a single decision extending the transition period for no more than two years. This decision must be made before 1 July 2020.

However, section 15A of the European Union (Withdrawal) Act 2018 ("2018 Act") prohibits UK Ministers from agreeing to such an extension. The prohibition was added to the 2018 Act by section 33 of the European Union (Withdrawal Agreement) Act 2020 ("2020 Act").

What are the conditions of an extension?

The UK Government has repeatedly said that an extension of the transition period is not an option. At the time of writing, this remains the official position.

If a decision to the contrary was to be made (because of COVID-19 or lack of progress in trade negotiations or both), the UK and the EU would have to agree on the duration of an extension (up to two years) before 1 July 2020. Domestically, legislation would have to be passed to repeal section 15A of the 2018 Act which currently forbids Ministers to agree to an extension.

And further legislation would be necessary: current Brexit legislation provides that the planned post-transition changes in domestic law (made by what has been described as "Brexit Regulations") will come into force on "IP [implementation period] completion day". This date is defined by the 2020 Act as 31 December 2020 (11pm UK time). Legislation would therefore be needed to make sure that post-transition domestic legislation only comes into force post extension.

How likely is an extension?

The UK Government's position on the issue of an extension to the transition period has consistently been and still is that it will not agree to an extension. If the Brexit process, and indeed the current pandemic, have taught us anything it is that it is better to never say never.

For regular updates, stay tuned to our Brexit Hub and Covid-19 Hub