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Four top-level Brexit outcomes were, theoretically, possible on 31 October, 2019:
- The UK leaves the EU without a Withdrawal Agreement in force
- The UK leaves the EU with a Withdrawal Agreement in force
- The UK does not leave the EU because it has requested and agreed with the EU an extension to the Article 50 period, or because a Withdrawal Agreement has been ratified which comes into force on a date later than 31 October
- The UK does not leave the EU because it has withdrawn its notification of its intent to leave
The first of these takes place automatically unless the developments needed to bring about one of the remaining three possibilities happen in time.
In the event, the outcome on 31 October was the third of these possibilities. On 19 October, the UK submitted a request for an extension of the Article 50 period until 31 January, 2020, in accordance with the Benn Act. On 29 October, the European Council decided to extend the Article 50 period accordingly and the UK agreed.
The default position in law is now that the UK will leave the EU on 31 January, 2020 without a Withdrawal Agreement in force.
The process by which a state withdraws from the EU is an international process governed by Article 50 of the Treaty on European Union (TEU).
Once the UK on 29 March, 2017 gave notice to the EU, under Article 50, of its intention to leave, the date of the UK’s exit is determined within the international Article 50 process. As a consequence, the date is determined jointly between the UK and EU.
Under Article 50, a state leaves the EU when the EU Treaties cease to apply to it. For these purposes, the EU Treaties are the TEU and the Treaty on the Functioning of the EU (TFEU).
Under Article 50, a state automatically leaves the EU two years after it gives notice of its intent to leave, unless:
a Withdrawal Agreement between it and the EU comes into force on another date, in which case it leaves the EU on that date; or
the European Council decides to extend the two-year period, in agreement with the departing state. Any decision by the European Council to extend the Article 50 period must be taken unanimously.
As of the end of October 2019, the UK’s Article 50 period has been extended three times from 29 March, 2019 – first to 12 April, 2019, then to 31 October, 2019, and then to 31 January, 2020.
Article 50 states that the EU “shall negotiate and conclude” a Withdrawal Agreement with the departing state, “taking account of the framework for its future relationship with the Union”. In the Brexit process, that framework has come to be set out in an EU-UK Political Declaration.
The European Union (Withdrawal) (No. 2) Act 2019 (the ‘Benn Act’) was passed in three days between 4 and 6 September, 2019, against the government’s wishes.
The Benn Act only concerns a UK request for, and – if the EU agrees one – possible parliamentary approval of, an extension of the Article 50 period which was otherwise due to expire on 31 October.
The Benn Act did not on its own guarantee any particular Brexit outcome on 31 October:
- it could not compel any particular response from the EU to any Article 50 extension request from the UK;
- it is distinct from the statutory conditions required for UK ratification of the Withdrawal Agreement established by the EU (Withdrawal) Act 2018;
- it compelled the government to request, by 19 October, 2019, an extension of the Article 50 period to 31 January, 2019 if certain conditions are not met, but it would have allowed that request to be withdrawn or modified if the conditions were met between 19 and 30 October.
Extension request obligation
The Benn Act obliged the Prime Minister to send a letter on or before 19 October, 2019 to the President of the European Council, requesting an extension to 31 January, 2020 of the Article 50 period due to expire on 31 October, 2019, unless one or other of two sets of conditions was met:
A. ‘Deal’
The Prime Minister was not obliged to send the Article 50 extension request letter if, by 19 October, the government had:
- laid before Parliament a statement that the UK has concluded a Withdrawal Agreement and a copy of the Agreement; and
- successfully moved in the House of Commons a motion to approve the Agreement; and
- tabled a motion to take note of the Agreement in the House of Lords, and the Lords has either debated the motion or failed to conclude such a debate within two Lords sitting days after the day on which the Commons agrees its approval motion.
B. ‘No deal’
The Prime Minister was not obliged to send the Article 50 extension request letter if, by 19 October, the government had:
- laid before Parliament a statement that the UK is to leave the EU without a Withdrawal Agreement having been reached; and
- successfully moved in the House of Commons a motion to approve a ‘no-deal’ Brexit, using wording specified in the Act; and
- tabled a motion to take note of the statement in the House of Lords, and the Lords has either debated the motion or failed to conclude such a debate within two Lords sitting days after the day on which the Commons agrees its ‘no-deal’ approval motion.
17-19 October: Government attempt to meet the ‘deal’ conditions
To try to meet the conditions for nullifying its obligation under the Benn Act to request an Article 50 extension, the government secured for 19 October, 2019 the first Saturday sitting of both Houses of Parliament since 1982.
On 17 October, the government:
- reached political agreement with the EU on a revised Withdrawal Agreement;
- saw that agreement endorsed by the European Council; and
- published the revised parts of the Withdrawal Agreement.
The government also negotiated with the EU a revised Political Declaration. The Political Declaration is the “framework for [the EU’s] future relationship” with a withdrawing state which Article 50 of the Treaty on European Union (TEU) requires alongside the Withdrawal Agreement. The European Council also endorsed this revised Political Declaration on 17 October.
This process of renegotiation and agreement with the EU opened the way to the government potentially being able to nullify, via the ‘deal’ route, on 19 October, its Benn Act obligation to request an Article 50 extension.
On 19 October, the government laid before Parliament a copy of the full revised Withdrawal Agreement, together with a statement that the UK had concluded a Withdrawal Agreement. This met its laying requirements under the Benn Act.
19 October outcome: the Letwin amendment
On 19 October, the government asked the House of Commons to agree a motion approving the revised Withdrawal Agreement for the purposes of the Benn Act.
However, as a ‘substantive’ motion, the government motion was amendable.
The ex-Conservative independent MP Sir Oliver Letwin successfully moved an amendment to the government motion which replaced the government’s approval wording with alternative text. This text explicitly declined to approve the Withdrawal Agreement “unless and until implementing legislation is passed”. The House then approved the motion as amended.
As a consequence of the Letwin amendment, the conditions for avoiding the Benn Act requirement to request an Article 50 extension were not met.
Later on 19 October, the UK sent to the European Council a request that the Article 50 period be extended to 31 January, 2020.
Parliamentary approval of an Article 50 extension
The Benn Act also established the UK processes that had to take place if the European Council agreed to an Article 50 extension beyond 31 October, 2019:
- If the European Council agreed an extension to 31 January, 2020, as the UK requested under the Benn Act, the Act required the Prime Minister immediately to agree to it.
- If the European Council agreed an extension to a date other than 31 January, 2020, the default provision is that the Prime Minister was also obliged to agree, within two calendar days of the European Council decision or before the end of 30 October, whichever was the sooner. However, this obligation falls away if, within two calendar days of the European Council decision or before the end of 30 October (whichever was the sooner), the House of Commons decided not to agree a government motion to approve the new Article 50 expiry date, worded as specified in the Benn Act.
The Benn Act is silent on what had to occur if the House of Commons were to decide not to pass a motion approving an Article 50 extension to a date other than 31 January, 2020.
However, the Benn Act includes a blanket provision that nothing in the relevant section of the Act prevents the Prime Minister from agreeing to an Article 50 extension using the government’s prerogative powers in the normal way.
The Benn Act also strengthened the obligation on the government to amend ‘exit day’ in UK law to match any revised date for the UK’s withdrawal from the EU. However, the Act disapplies this strengthening provision if the House of Commons had either approved a no-deal Brexit, or declined to pass a motion approving an extension to a date other than 31 January, 2020.
In the Brexit context, ‘exit day’ is a concept in domestic UK law, established by the EU (Withdrawal) Act 2018. It is not a term in international or EU law and therefore cannot determine the date on which the UK leaves the EU.
Instead, ‘exit day’ functions as the day on which a raft of changes in UK law take place.
However, the date of ‘exit day’ in UK law needs to be the same as the date on which the UK leaves the EU. This is because the changes in UK law that take place on ‘exit day’ are those that need to take place at the moment when the UK is no longer bound by obligations under the EU Treaties, and EU law ceases to apply automatically. The concept of ‘exit day’ allows the UK’s statute book to ‘match’ its changed international position. Most importantly, ‘exit day’ is the day on which the 1972 European Communities Act is repealed, but provisions in a host of Acts and Statutory Instruments also specify ‘exit day’ as the date on which sweeping changes to the UK statute book take place.
The EU (Withdrawal) Act 2018 defined ‘exit day’ as 29 March, 2019. However, the Act also gave Ministers a delegated power to make a Statutory Instrument to amend this definition to match the date on which the EU Treaties cease to apply to the UK, if this date were other than 29 March.
The EU (Withdrawal) Act 2018 specified that the ‘exit day’ SI was to be subject to the draft affirmative procedure – that is, the Minister could not make it or bring it into force unless and until it was approved by both Houses of Parliament. However, before the second extension of the Article 50 period, the EU (Withdrawal) Act 2019 (the Cooper-Letwin Bill, as was) switched the parliamentary scrutiny procedure applicable to all future iterations of the ‘exit day’ SI from the affirmative to the negative procedure. As a result, the Minister can make the SI and bring it into force immediately. This occurred first on 11 April and then again on 30 October.
The UK will leave the EU ‘with a deal’ if, on the day of its departure, a Withdrawal Agreement is ratified and able to come into force at the start of the following day.
Any state’s ratification of a treaty, such as the Withdrawal Agreement, is done by its executive – in the UK’s case, the government.
Any state or treaty-making organisation determines for itself any internal process that it goes through prior to ratification.
EU: European Parliament consent
In the case of the Withdrawal Agreement, the EU may not conclude the Agreement (equivalent, in EU terminology, to ratification) until the European Parliament has consented.
It had always been intended on both sides that the European Parliament would consent only after the House of Commons had at least approved the Withdrawal Agreement in the ‘meaningful vote’. The European Parliament did not consent to conclusion of the Withdrawal Agreement during its 21-24 October plenary session, and on 24 October, 2019, European Parliament leaders said that the Parliament’s “consent procedure would begin only after the ratification of the Withdrawal Agreement by the United Kingdom”.
UK: Uniquely challenging ratification conditions
The UK’s default treaty ratification process involves only a weak negative power for the House of Commons under the Constitutional Reform and Governance Act 2010 (the CRAG Act). Under this process, the government can ratify a treaty unless the House objects, and an objection may only delay ratification. Moreover, the government may set aside the provisions of the CRAG Act in urgent circumstances.
Parliament’s real power in any treaty ratification process comes if the treaty requires changes to be made to UK law, and those changes are made via primary legislation.
For the Withdrawal Agreement, section 13 of the EU (Withdrawal) Act 2018 established a uniquely challenging set of ratification conditions, over and above the normal UK process.
Under section 13 of the EU (Withdrawal) Act 2018, the UK may only ratify the Withdrawal Agreement if:
- the government has laid before Parliament a statement that political agreement with the EU has been reached, and copies of both the Withdrawal Agreement and the framework for the future relationship (the Political Declaration); and
- the House of Commons has approved both the Withdrawal Agreement and the Political Declaration by agreeing to one or more government approval motion(s) (the ‘meaningful vote’); and
- the government has tabled a motion to take note of the Withdrawal Agreement and Political Declaration in the House of Lords, and the Lords has either debated the motion or not concluded such a debate within five sitting days of the Commons’ ‘meaningful vote’; and
- an Act of Parliament has been passed to approve and implement the Withdrawal Agreement, as a statutory requirement, not merely as a matter of normal UK treaty practice (the Bill slated to become this Act is the Withdrawal Agreement Bill, WAB); and
- either the ratification requirements of the CRAG Act have been fulfilled, or provision has been made to exempt the Withdrawal Agreement from them.
Both the May and Johnson governments laid copies of their draft Withdrawal Agreements and accompanying statements, to comply with the laying requirements of the EU (Withdrawal) Act 2018 (the latter on 19 October).
However, the House of Commons has declined three times to agree a government motion to approve a Withdrawal Agreement for the purposes of the EU (Withdrawal) Act 2018:
- on 15 January and 12 March, on May government motions to approve the Withdrawal Agreement together with the Political Declaration; and
- on 19 October, on a Johnson government motion to approve the Political Declaration for the purposes of the EU (Withdrawal) Act 2018, together with the Withdrawal Agreement jointly for the purposes of the EU (Withdrawal) Act 2018 and the Benn Act.
On 29 March, the House of Commons also declined to agree a government motion to approve the May government’s Withdrawal Agreement alone, without the Political Declaration. This motion was not moved under the terms of the EU(W)A 2018.
Despite its defeat on its ‘meaningful vote’ motion on 19 October, on 21 October the Johnson government embarked on the legislative element of the UK ratification process, by introducing the Withdrawal Agreement Bill (WAB) to Parliament. The House of Commons gave the Bill a 2nd Reading the following day. However, the House then rejected the government’s proposed programme motion, which was intended to timetable the Bill’s House of Commons consideration in three days. Since then, the government has not proceeded with further consideration of the Bill.