Countdown to Brexit: 6 days – Unless…Parliament decides to change “exit day” – and there are no legal stoppers

The UK ‘honours’ its obligations as an ‘EU Member State through legislation known as the ‘European Communities Act, 1972’.  It provides for the UK to “dynamically align” with EU law on an indefinite basis.

In the event of a ‘no-deal’ Brexit, all those obligations simply end – and there would be nothing that UK domestic law was required to align to.

Following the referendum, the ‘EU (Withdrawal) Act, 2018’ was passed.  Its purpose was to replace the present arrangements and create a post-Brexit constitutional scheme.  It was driven by Withdrawal Treaty negotiated between the EU and UK and agreed in November 2018.  It is designed to preserve the bulk and substance of ‘EU’ law within ‘UK domestic’ law – and it provides the constitutional basis for ending the catch-all ‘dynamic alignment’ between the two systems of law.

From a timing perspective, changes to UK domestic law needs to be coordinated – ideally at exactly at the instant that the UK formally leaves the EU – in order to provide legal certainty for individuals, businesses and other organisations whose activities are presently regulated - whether in whole or in part - by EU legislation.

Change too early – and the UK would run the risk of breaching its obligations as a Member State.  Infringement proceedings could be brought against the UK before the Court of Justice of the EU.

Change too late – and there would be a ‘significant gap’ in UK law.  People’s rights and obligations would be unclear - as would their means of redress before the courts if they became a matter of legal dispute.

For the avoidance of doubt, the EU (Withdrawal) Act 2018 designates a ‘switch-over’ – referred to as “exit day” and defined in Section 20(1) of the Act as 23:00 GMT on 29 March 2019.   At this instant, the 1972 European Communities Act and other EU-related legislation are repealed - and the new system of “retained EU law” comes into effect.

“Exit Day” will not ‘automatically’ update if - for whatever reason - the UK’s membership of the EU continues beyond 29 March 2019.  However, the definition of “exit day” does not affect when the UK leaves the EU - merely when UK law is updated to deal with the ‘consequences’ of Brexit.

On Wednesday 21 March, the European Council offered the UK a selection of ‘conditional’ extensions to Article 50.  If any are accepted “the day and time that the Treaties are to cease to apply to the United Kingdom” will be later than the definition of “exit day”.

In such a scenario the UK would continue to be a member of the EU – with all the resulting obligations in EU law.  However, if the EU (Withdrawal) Act 2018 were to be brought fully into force, this would have the effect of repealing the European Communities Act.  Even though much of EU law would have been “converted” into UK law: no UK court could refer a case to the CJEU; many financial payments to the EU would be (domestically) unlawful; and UK law would not “keep pace” with subsequent developments in EU law.

As “exit day” is defined in ‘primary legislation’, changing it would normally require further primary legislation.  However, the EU (Withdrawal) Act 2018 foresaw the possibility of an extension being sought and granted - and in those circumstances allows the definition of exit day to be changed by ‘secondary legislation’.

Section 20(4) allows a Minister of the Crown to change exit day - provided that a draft statutory instrument has been laid before and approved by both the House of Commons and the House of Lords. However, it can only be used:

“to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom.”

This legislation is subject to the ‘draft affirmative procedure’ - and so would need to be actively approved in each House.  The legislation would give effect to any agreement with the EU on an extension.”

Background

On 14 March 2019, the Commons approved a motion instructing the Government to seek an extension to the Article 50 period – and an extension until 30 June 2019 was requested by the Government.

The European Council at its summit meeting on 21 March agreed to an extension of Article 50 until 22 May 2019 - provided the Withdrawal Agreement is approved by the House of Commons in the week commencing 25 March 2019.

If the Withdrawal Agreement is not approved by the House of Commons, the European Council unanimously agreed to an extension until 12 April 2019.  There is a stated expectation that the UK would indicate a way forward before this date for consideration by the European Council.

The options in this case are:

  • to revoke Article 50 and remain a member state of the European Union for the foreseeable future; or

  • to leave the European Union at 23:00 GMT (midnight BST) on 12 April 2019.

It was spelled out by European Council President, Donald Tusk:

 “As regards the extension, our decisions envisage two scenarios:

In the first scenario, that is, if the Withdrawal Agreement is passed by the House of Commons next week, the European Council agrees to an extension until the 22nd of May.

In the second scenario, that is, if the Withdrawal Agreement is not approved by the House of Commons next week, the European Council agrees to an extension until the 12th of April - while expecting the United Kingdom to indicate a way forward.  What this means in practice is that, until that date, all options will remain open, and the cliff-edge date will be delayed.

The UK Government will still have a choice of:

  • a deal;

  • no-deal;

  • a ‘long’ extension; or

  • revoking Article 50.

The 12th of April is a key date in terms of the UK deciding whether to hold European Parliament elections.  If it has not decided to do so by then, the option of a long extension will automatically become impossible.”

If the UK Government accepts the terms as envisaged by President Tusk - and the House of Commons approve the Withdrawal Agreement and Political Declaration before 29 March 2019. The European Council will then agree the extension.

If it does not approve the UK extension request, the UK will have to consider its next course of action.  The Prime Minister could then make a second request for an Article 50 extension, this time for a longer period, and requiring UK participation in the European Parliament elections.  This could be considered by the EU in an emergency summit next week or by a “written procedure”.  The EU has indicated that this there would need to be “a new event” or “new political process” in the UK to justify granting such an extension.

Otherwise the UK may elect to leave the EU on a no-deal basis on either 29 March 2019 at 11pm GMT – or 12 April at 11pm GMT (midnight BST).

The Prime Minister has subsequently written to all MPs confirming her understanding of the situation and choices.  It accords with the Brexit Partners interpretation of events, outcomes and documents.  In full:

“Dear colleague,

I am writing to inform you of the conclusions of the European Council with respect to Brexit.

As you know, on Wednesday I wrote to Donald Tusk, the President of the European Council: [4]

requesting the approval of the Instrument relating to the Withdrawal Agreement and the Joint Statement supplementing the Political Declaration that I agreed with President Juncker in Strasbourg on 11 March;

  • reporting the Speaker's statement on Monday that in order for a further meaningful vote to be brought back the agreement would have to be "fundamentally different - not different in terms of wording, but different in terms of substance" and that, as a result, some colleagues were pressing for further changes to the Withdrawal Agreement; and

  • requesting a short extension to the Article 50 process.

Asking for an extension is a matter of great personal regret for me. As I set out to the House on 12 March, I am passionate about delivering the result of the referendum. But I am equally passionate that the best way to do so is to leave in an orderly way with a deal and I still believe there is a majority in the House for that course of action. I am also conscious of my duties as Prime Minister of the United Kingdom of Great Britain and Northern Ireland and of the potential damage to that Union that leaving without a deal could do when one part of our country is without devolved governance.

I am pleased to say that the European Council approved the legally-binding assurances relating to the backstop and alternative arrangements that I agreed with President Juncker in Strasbourg. These should increase the House's confidence that the backstop is unlikely ever to be used and would only be temporary if it is.

The Council made it clear "that there can be no opening of the Withdrawal Agreement that was agreed between the Union and the United Kingdom in November 2018".

I warned the House of Commons when I spoke in the second meaningful vote debate that it was "not a guarantee that any extension would be agreed by the European Union or that it would agree an extension in the terms in which the United Kingdom asked for it".

So it proved. After a lengthy discussion, the Council agreed that if the House approves the Withdrawal Agreement next week then the date of our departure will be extended to 22 May in order to provide time for Parliament to pass the Withdrawal Agreement Bill, which is necessary for the deal to be ratified.

If the House does not agree the Withdrawal Agreement next week, the Council agreed the date of our departure will be extended to 12 April. At this point, we would either leave with no deal or "indicate a way forward before this date for consideration by the European Council" - but that if this involved a further extension it would mean participation in the European Parliamentary elections. As I have said previously, I strongly believe that it would be wrong to ask people in the UK to participate in these elections three years after voting to leave the EU.

The Council's conclusions have been turned into a legal decision, which comes into force today. We will need to alter the date of our withdrawal in domestic legislation by Statutory Instrument, but the Decision sets the new date of our departure.

The Council's decisions mean we have a clear choice:

  1. We can revoke Article 50 - but that would be to betray the result of the referendum.

  2. We can leave with no deal on 12 April - but the House has previously said this is not something it will support.

  3. If it appears that there is not sufficient support to bring the deal back next week, or the House rejects it again, we can ask for another extension before 12 April - but that will involve holding European Parliament elections.

  4. If it appears that there is sufficient support and the Speaker permits it, we can bring the deal back next week and if it is approved we can leave on 22 May.

Finally, I want to say something about my statement on Wednesday night, which a number of colleagues have raised concerns about.  I expressed my frustration with our failure to take a decision, but I know that many of you are frustrated too.  You have a difficult job to do and it was not my intention to make it any more difficult.  People on all sides of the debate hold passionate views and I respect those differences.  I would like to thank all of those colleagues that have supported the deal so far and also those that have taken the time to meet me to discuss their concerns.

I hope we can all agree that we are now at the moment of decision.  If you would like to speak to me over the coming days as Parliament prepares to take momentous decisions, please contact my office.

Yours sincerely,

Theresa May”

Reference

European Communities Act 1972

John ShuttleworthComment