11 Dec 2018

The UK government's extraordinary decision on 10 December to delay the "meaningful vote" on the Withdrawal Agreement and Political Declaration (WA) has focused attention on 21 January 2019 as a key milestone in the Brexit process, and on the duties imposed on the government by the EU (Withdrawal) Act 2018, section 13. The crucial question is whether the government's decision to delay the "meaningful vote" increases the risk of an accidental "no deal" Brexit due to the very short time remaining before expiry of the Article 50 notice on 29 March 2019.

On 11 December Yvette Cooper MP asked an urgent question in the Commons, calling on the Attorney General to provide a written statement setting out the government's legal interpretation of section 13. The government response was given not by the Attorney General, but by Robin Walker, Parliamentary Under-Secretary at the Department for Exiting the EU.

The Under-Secretary gave assurances that if the House of Commons has not approved the WA by the end of 21 January 2019 then there would be a debate under section 13 to determine what the next steps should be. He also stated that the government motion in that debate would be subject to amendment as a result of the "Grieve amendment" passed on 4 December.

The government's official position, therefore, is that 21 January marks the point by which the WA must have been approved or rejected by the House of Commons. If the WA has not been voted on by that date, then section 13(11) provides:

A Minister of the Crown must, within the period of five days beginning with the end of 21 January 2019—

(a) make a statement setting out how Her Majesty's Government proposes to proceed, and

(b) make arrangements for—

(i) a motion in neutral terms, to the effect that the House of Commons has considered the matter of the statement mentioned in paragraph (a), to be moved in that House by a Minister of the Crown within the period of five Commons sitting days beginning with the end of 21 January 2019, and

(ii) a motion for the House of Lords to take note of the statement mentioned in paragraph (a) to be moved in that House by a Minister of the Crown within the period of five Lords sitting days beginning with the end of 21 January 2019.

What does "in principle" mean?

The Under-Secretary's assurances were not sufficient to allay concerns. Quite apart from general concerns and suspicions stemming from the political events of 10 December, several responses to the Under-Secretary referred to a House of Commons library paper which suggested that references in section 13 to an agreement "in principle" mean an agreement "in principle" between the EU and the UK government – and not one that has been agreed "in principle" by a vote of the House of Commons.

In her urgent question, Yvette Cooper MP emphasised the need for a written statement by the Attorney General setting out the government's legal interpretation of section 13. She explained her precise concern: that if "in principle" refers to the EU and the UK government, then the government could avoid any vote in the House of Commons.

The Under-Secretary repeated his "assurance" and "reassurance" that there would be a vote on the WA by 21 January 2019.

Then what?

If the House of Commons were to pass a resolution approving the WA then that would by no means be the end of the story. Section 13 provides that if the WA were to be approved, then it would have to be implemented by means of the proposed EU (Withdrawal Agreement) Bill. That Bill would have to clear 1st and 2nd reading, committee and report stages and 3rd reading in both the House of Commons and the House of Lords, and would have to receive royal assent before expiry of the Article 50 notice on 29 March 2019.

From today (11 December) there are 54 House of Commons "sitting days" remaining before expiry of the Article 50 notice. From 21 January 2019 there will be 39 "sitting days". It would, of course, be possible for the government to secure passage of its Bill within either of those remaining periods. An uncontroversial Bill can clear all stages in one or two days, if skilfully handled by those in charge of Parliamentary business. Approval of the WA by 21 January 2019 could therefore lead to a fully approved WA before 29 March. That would secure a transitional period up to 31 December 2020.

However, that assumes an unusually smooth Parliamentary process. Indeed, it assumes approval of the WA. If the WA were to be rejected then a "meaningful vote" on or shortly before 21 January 2019 would leave precious little time for formulation of any "Plan B". 39 "sitting days" from 21 January would allow very little time for agreement of an alternative deal, or for agreement on the terms of any further referendum. While arguments raged, the clock would continue to tick down to 29 March 2019. If the clock were to tick down without either:

  • final agreement on a "Plan B", or
  • formal revocation of the UK's Article 50 notice (confirmed as possible by the ECJ on 10 December).

Then on the current primary legislation, the UK would leave the EU with no deal, and no transitional period.

For business, contingency planning for a "no deal" Brexit must therefore remain a priority.