Countdown to Brexit: 27 days – What must happen – starting next week in Parliament - to avoid an “accidental no-deal Brexit”

On Tuesday 26 February the Prime Minister set out the next stages of the Brexit process – promising up to three key votes due to take place in the Commons on 12 March, 13 March and 14 March.

Commitment 1: to give the House of Commons another ‘meaningful vote’ - on or before Tuesday 12 March.  This will be a “motion to approve a deal for the purposes of section 13(1) of the European Union (Withdrawal) Act 2018”.  

The UK legally cannot ratify a Withdrawal Agreement unless this motion is passed by Parliament.  It is not yet known whether - or to what extent - this deal will differ from the one that the Prime Minister agreed with the European Union and brought back to Parliament in November 2018.

Discussions with Europe are ‘ongoing’.  Every EU body – along with the remaining 27 nations – are acting with total unanimity.  Substantive changes to the draft treaty agreed between the EU and UK Government – and including the Withdrawal Agreement are unlikely.  There remains a possibility of ‘clarifications’ to the non-binding Political Declaration – including some supplementary documentation concerning how the Protocol on Northern Ireland is intended to operate.

The last ‘meaningful vote’ was held in January.  MPs had the opportunity to amend the Government’s motion to approve the deal.  They will probably get the same opportunity next week.  It has been suggested, for instance, that an amendment could be tabled to this motion to make approval conditional on a further ‘public vote’.  Such an amended motion could not - in itself - give rise to a further referendum - but it could prevent the Government from ratifying the Withdrawal Agreement without further primary legislation – taking power out of the hands of Government and giving it to Parliament.

If there conditions attached by MPs to approval, this could affect the Government’s ability - and/or its willingness - to proceed with the next stage in the process: moving forward with the EU (Withdrawal Agreement) Bill - primary legislation that is needed if an agreement is to be ratified before exit day – 23:00 GMT on 29 March 2019 under the Article 50 that was triggered by the Government in March 2017.

The Government is presently expected to wait until the latest possible date – 12 March – before re-presenting the deal to Parliament. 

Commitment 2: If the Commons rejects what will be a substantially unchanged deal – and the last time it was overwhelmingly defeated by 432 votes to 202 – the Prime Minister has promised to bring forward a second motion for debate on Wednesday 13 March.

We do not know what the text of this motion would be - but the Prime Minister said it would ask MPs if they support, “leaving the EU without a withdrawal agreement and a framework for a future relationship on 29 March.”

The outcome of this debate, and any resolution the House may adopt, would not be legally binding.  It will have no effect on Article 50 itself – as this is a matter of EU law.  A Commons vote against leaving without a deal if this debate goes ahead will not - in itself - prevent the UK from leaving with no-deal.

Nor, if this debate takes place – is it clear whether the Government will advocate leaving without a deal.  In Parliament on Tuesday, the Prime Minister was asked this question on four separate occasions - by Owen Smith, Jess Philips, Stella Creasey and Ian Murray - but answered “neither in the affirmative nor the negative”.  This lack of clarity has been quoted by George Eustice MP in his resignation as Agriculture Minister – as he feels that he wants to be: “free to participate in the critical debate” coming up.

Commitment 3: the third link in the chain of Theresa May’s promises was that - if the Commons rejects “leaving without a deal on 29 March,” - she will bring forward a motion for debate on Thursday 14 March.

This motion would propose that the Government seek a “short extension” of Article 50’s two-year ‘negotiating period’.  If the Commons approves this motion, the implication is that the Prime Minister would then be expected to ask the European Council for an extension until no later than the end of June 2019.

Any longer extension would raise questions about the UK’s participation - or otherwise - in the European Parliamentary elections, as the new group of MEPs are due to sit in early July.

a-delay-to-brexit-is-technically-possible-but-its-complex-and-may-not-be-granted-even-if-the-uk-did-request-it

The outcome of this vote is - as with the ‘no-deal’ debate - not legally binding, although it would carry political force.  For example, if MPs amended the motion to ask for a longer extension the Prime Minister would be under no legal obligation to seek that longer extension.  Unlike the ‘Yvette Cooper’ proposal, covered in the our earlier posting - this political compromise maintains full constitutional control for the Prime Minister over whether - and for how long - the UK might seek an extension of Article 50.

What will happen in these three key votes?

On 12 March: if the Commons approves ‘meaningful vote version 2’, the other two votes will not be necessary.  The Government could bring forward the EU (Withdrawal Agreement) Bill to complete domestic constitutional arrangements for the deal to be ratified and implemented.  It is still possible that the Government might ask for a short “technical extension” of Article 50 – simply to ease the pressure on the Parliamentary timetable for passing that Bill.  We have reported that the suite of 13 Bills and over 600 Statutory Instruments will be in place for 29 March.

progress-review-of-the-legislation-needed-for-a-no-deal-brexit

On 13 March: if the Commons approves “leaving without a deal on 29 March,” it would politically endorse the legal default outcome – and a ‘no-deal’, cliff-edge Brexit will happen at precisely 23:00 GMT on Friday 29 March 2019. 

On 14 March: if the Commons approves a “short extension,” the Prime Minister would then have to ask the other 27 Member States to agree to it – and there is a scheduled meeting of the Heads of State – the European Council – on 21 March.  Agreement to an extension would have to be unanimous on both the purpose and need for an extension - and its duration.

If an extension is agreed, the UK would continue to be a full Member State of the European Union – in every single respect as it is today - until that new date expired.  The Government would bring forward secondary legislation to change ‘exit day’ on the relevant legislation – which would postpone all the changes in domestic law that were otherwise anticipated for 29 March.

If an extension is not unanimously agreed by the remaining EU27 countries, the legal default applies and the UK leaves the EU - with or without a deal - on 29 March 2019.  In the final seven days until Brexit there are only two ways that a ‘no-deal’ exit could then be avoided: Parliament revisits, approves and ratifies Theresa May’s ‘deal’; or the UK revokes notification under Article 50 of its intention to leave the European Union – and remains a full member of the EU for the future.

The Prime Minister re-iterated on Tuesday that revocation is something that she “shall not do” – and the European Court of Justice has pronounced that revocation of Article 50 cannot be temporary – it is full, final and forever.

European Court of Justice opinion: UK could reverse Brexit - "under certain conditions"

 One slip – or one break in the complex, untried and untested chain of events – and the default ‘no-deal’ Brexit will be triggered by accident in less than 4 weeks’ time.

Reference

Hansard transcript 26 February 2019:  Volume 655

https://hansard.parliament.uk/Commons/2019-02-26/debates/B5B3B17F-E96D-4093-ADE4-E5A8F4F3C58B/LeavingTheEuropeanUnion#contribution-28C37476-3D57-466F-B46F-027475F8F053