Legislation is passed seeking to avoid a hard Brexit – where do we stand now?

By Richard Eccles

09-2019

The so-called anti-hard Brexit legislation, the European Union (Withdrawal) (No.2) Act 2019 (the 'Act'), received royal assent on 9 September 2019. The Act requires the Prime Minister to seek, on 19 October 2019, a deferment of the Brexit departure date unless parliamentary approval has been obtained for either a withdrawal agreement or for exit without a deal. The Act is significant because its implementation will empower Parliament to avoid a no-deal exit from the EU on 31 October 2019. 

Meanwhile the Supreme Court has ruled on the 24 September that the government's purported prorogation was unlawful and void, with the result that Parliament has not been prorogued.  Therefore Parliament can again debate Brexit issues and potential further legislation concerning Brexit in the run-up to the European Council meeting in mid-October and the currently scheduled exit day.

The Act was formerly known as the ‘Benn Bill’, was first presented to the House of Commons by Labour MP Hilary Benn on 4 September 2019, with cross-party support of opposition parties and rebel Conservative MPs.  Benn outlined the primary purpose of the Act as preventing a no-deal Brexit, unless Parliament approved such a course of action.

The Prime Minister's obligation to seek an extension of the Article 50 notice

If there is no agreed UK/EU withdrawal agreement and/or the House of Commons has not approved such a Withdrawal Agreement, then the Prime Minister must on 19 October 2019 seek a deferment of the date of the UK's withdrawal from the EU, under Article 50 of the Treaty on European Union, to 31 January 2020. The Act specifies the form of letter that the Prime Minister must send to the President of the European Council to request such an extension.

If the European Council agrees to delay the departure date until 31 January 2020, then the Prime Minister must immediately accept that extension. If the European Council proposes a different extension date, then the Prime Minister must accept that, unless the House of Commons were to decline its approval within two days.

Furthermore, the Act provides that the Prime Minister may withdraw or modify the Article 50 extension request, if a withdrawal agreement or no-deal exit is approved by Parliament before the end of 30 October 2019.

Parliament's ongoing role in scrutinising the Brexit negotiations

The Act allows Parliament to effectively take control of the Brexit timetable and scrutinise the progress of negotiations with the EU. For example, if an extension is agreed, the Secretary of State must publish a progress report by 30 November 2019. If the report is not approved (without amendment) by the House of Commons, a further report must be published by 10 January 2020. From 7 February 2020, further progress reports must be made at least every 28 days until an agreement with the EU is reached.

Will the Prime Minister abide by the Act?

While the Government has pledged to abide by the law in principle, it has firmly stated its policy is not to request an extension on 19 October 2019. It has been suggested that the Prime Minister could request an extension, while simultaneously writing a letter asking the EU to ignore the extension request, but this would no doubt still be considered a breach of the Act.  However, for the EU to agree an extension of the Article 50 notice, all 27 EU Member States must be in agreement, and the Act does not require the Prime Minister to seek to persuade any of them to give such agreement.

If the Prime Minister were simply to disregard the Act, an action for judicial review of his decisions or inaction could be expected, potentially resulting in a court order requiring his compliance. Breach of such an order would of course be a serious matter.  Due to the fast approaching 31 October deadline, a High Court decision and a Supreme Court appeal decision would need to be expedited.

Conclusion

There will be three possible outcomes when Parliament returns from prorogation: a new withdrawal agreement if it were successfully negotiated and approved by Parliament, an extension to the Article 50 notice period (if agreed by the EU), and (the default position) a no-deal Brexit on 31 October.   Meanwhile, the Prime Minister now appears to be increasing his efforts to secure a deal with the EU.  If this were achieved, this would give business the certainty of a transitional period to the end of 2020 and avoid the disorder of a no-deal Brexit.  However, it would lead to more uncertainty as regards the negotiation and content of a future EU/UK trade (relationship) agreement.

The European Parliament supported an extension of the Article 50 notice period in a vote on 18th September 2019, provided that it has the purpose of avoiding a no-deal Brexit, of holding a general election or referendum, of revoking the Article 50 notice, or of approving the Withdrawal Agreement.

Meanwhile, the Supreme Court is clearly determined to uphold the rule of law, as it has shown in its 24 September ruling on the appeals from the English High Court and Scottish appeal court judgments on the Prime Minister's decision to prorogue parliament.    The Court ruled the prorogation to be unlawful on the basis that it prevented Parliament, without reasonable justification, from carrying out its constitutional functions, without the Court needing to examine whether the Prime Minister's motive or purpose was unlawful.  The Order in Council leading to the prorogation was in effect a blank sheet of paper.

Brexit continues to test the balance between executive and parliamentary power.  The coming weeks may test this balance further.

This article is part of our Brexit series.