04 Apr 2019

On 3 April the EU (Withdrawal) (No 5) Bill completed its House of Commons stages in a debate crammed into just over four hours. The Bill narrowly avoided rejection, clearing its second reading with a majority of five votes. At the end of a fractious debate, the Bill was approved at a third reading by just one vote. The Bill imposes a duty on the Prime Minister to seek a further extension to the UK's Article 50 notice period if that is required to avert a "no deal" Brexit. However, it is not yet law, and must successfully navigate its passage through the House of Lords and on to royal assent, probably by the end of 8 April, if it is to have any meaningful effect.

Earlier in the day, the Speaker's casting vote was used for the first time in 26 years to block an amendment that would have allowed a further round of indicative votes on 8 April. To complete the day's political drama, a government amendment that would have neutralised the Bill by allowing the Secretary of State to agree an Article 50 extension without Parliamentary approval (allowing either for a shorter extension, or for an extension to pave the way for a "no deal" exit) was heavily defeated, with 91 Conservative MPs voting against the government.

The Bill, as sent up to the House of Lords, requires the Prime Minister on the day after royal assent to move a motion in the House of Commons in the form:

“That this House agrees for the purposes of section 1 of the European Union (Withdrawal) Act 2019 to the Prime Minister seeking an extension of the period specified in Article 50(3) of the Treaty on European Union to a period ending on […]”

The date to be inserted in the square brackets would be either:

  • The date proposed by the government; or
  • A date approved by the House of Commons through an amendment to the motion; or
  • A date offered by the European Council and approved by the House of Commons through a further motion.

In any event, the Bill's striking constitutional effect would be to empower the House of Commons to instruct the government to seek and agree whatever extension would be required to prevent a "no deal" Brexit.

The Bill's passage through the House of Commons in only one sitting might be taken as proof that legislation can be made at speed, and that the government would itself be able to pass any laws required to ratify the Withdrawal Agreement and Political Declaration (WA) and to deliver Brexit should the Prime Minister's latest attempt to secure support from Labour MPs succeed. However, the Bill debated on 3 April runs to only three clauses, and has a single narrow purpose. Even then, the debate was heated, and the final margin of victory was only one vote. Debates on the far more complex legislation required to authorise and implement the WA would require a full committee stage, with the potential for line by line scrutiny of its provisions, and with ample scope for blocking, probing or improving amendments. Indeed, a major criticism of the short Bill debated and passed on 3 April was that the speed of its drafting and consideration meant that it included several typographical errors and inadequately thought-through provisions. The scope for error and inconsistency in more substantial legislation would be greatly increased, and the opportunities for objection multiplied.

It is also essential to remember that the Bill passed by the House of Commons is not yet law. It must be approved by the House of Lords, through the full procedure of first and second reading, committee stage, report and third reading. Debates in the House of Lords are not subject to a time limit or "guillotine" procedure, and the House of Lords may be far less willing than the House of Commons to forego a full report stage debate. In the Commons, the Bill went directly from its committee stage in the Chamber to third reading. In the Lords, opponents and constitutional sticklers would have ample scope to slow or even block the Bill's progress. Debate in the Lords may be scheduled for 5 or 8 April, and could easily extend to a point at which the instruction to the Prime Minister to table a motion would run into the EU Council's emergency summit on 10 April. In practice, there is a risk that the Bill's instruction might come too late to avert a "no deal" Brexit on 12 April.  Once a "no deal" Brexit has occurred, the Bill would have nothing to operate upon. Once the Article 50 notice period has expired, it cannot be revived in order to be extended. Consequently, for the Bill's effect to be more than symbolic, it must complete its House of Lords stages and return to the Commons for debate on any House of Lords amendments, a final vote and royal assent, before the end of 8 April.  

In the meantime, further talks are scheduled between the Prime Minister's core team and the negotiating team fielded by Jeremy Corbyn, which includes Sir Keir Starmer. That process, set in motion after the Prime Minister's 2 April public statement, seeks to identify a basis on which the WA can be brought back for a fourth vote. Again, the effective deadline must be the end of 8 April if there is to be any realistic prospect of a vote before the EU Council emergency summit on 10 April.

12 April remains as a default "no deal" date, with the 10 April EU Council emergency summit as the probable moment of decision.