11 Apr 2019

The risk of a "no deal" Brexit on 12 April has been averted by the EU Council's offer to extend the Article 50 deadline to 31 October 2019. However, to ensure that the extension is not subject to legal challenge in the UK, the government must rely on a procedural change made by the EU (Withdrawal) Act 2019 which, as the "Cooper-Letwin" Bill, the government strenuously opposed.

The EU Council's 10 April emergency summit agreed:

  • to extend the UK's Article 50 deadline to 31 October 2019
  • subject to earlier termination if the UK Parliament approves the Withdrawal Agreement and Political Declaration (WA), perhaps reflecting in the Political Declaration any agreed outcome from talks with the Labour Party or from a further round of indicative voting; and
  • with a review at the end of June 2019.

Section 20 of the EU (Withdrawal) Act 2018 was amended to change the original 29 March 2019 deadline to read:

“exit day” means:

(a) if, in accordance with Article 1 of European Council Decision (EU) 2019/476 of 22 March 2019, the period provided for in Article 50(3) of the Treaty on European Union is extended until 22 May 2019, 11.00 pm on that day, or

(b) if not, 11.00 pm on 12 April 2019

A further change to replace the 12 April deadline requires a statutory instrument made under section 20(5) of the 2018 Act. Before it was amended by the Cooper-Letwin Bill, that procedure required a positive vote in favour of the statutory instrument in both the House of Commons and the House of Lords. Securing those votes before the deadline of 11.00pm on 12 April would have required significant departures from normal procedural rules. For example, in the House of Lords there can normally be no vote on a statutory instrument until it has been scrutinised and reported on by the Joint Committee on Statutory Instruments (JCSI). JCSI meetings take place on Wednesdays, and the usual deadline for securing a place on its weekly agenda is the previous Monday. That deadline was barely met in relation to the 29 March amendment. It clearly cannot be met in time to amend the 12 April deadline. Consequently, amending the deadline in domestic law would have required a significant measure of Parliamentary cooperation and goodwill.

The Cooper-Letwin Bill amended the EU (Withdrawal) Act 2018 to provide that a statutory instrument made to amend the section 20 definition of "exit day" can be made by a Minister once the House of Commons has approved the extension to which it relates. Once made by a Minister, the statutory instrument is subject to annulment by either House, meaning that it would require a majority in either the House of Commons or in the Lords to undo its effect. Consequently, the critical next step for the UK government must be to secure a House of Commons majority in favour of the EU Council's new offer.

International law v domestic law?

The UK government's position was that the EU Council decision of 22 March altered the Article 50 deadline as a matter of international law. However, it was necessary to amend the EU (Withdrawal) Act 2018 in order to avoid a clash between international and domestic law. That, presumably, will also be the UK government's analysis of the 31 October extension.

The UK government's analysis was not shared in all parts of the House of Commons. Indeed, elements of the European Research Group (ERG) have challenged the legal status and effect of the extension from 29 March. To avoid further legal challenge, securing a formal amendment to the "exit day" before the 12 April deadline must be a priority.

The Prime Minister is due to make a statement to the House of Commons on 11 April. Under the terms of the EU (Withdrawal) Act 2019, the Prime Minister must also introduce a motion to approve the EU Council's offer. That motion must be moved "the day after" the EU Council offer. Strictly, therefore, given that the EU Council's offer came in the early hours of 11 April, the motion could be delayed until 12 April. However, there is likely to be significant pressure to secure the necessary vote as soon as possible to minimise the risk of slippage beyond the current deadline of 11.00pm on 12 April. Equally, it might be open to determined advocates of a "no deal" Brexit to use procedural manoeuvres such as coordinated interventions or "points of order" in the hope of delaying any such vote. Once again, a key Brexit decision could go down to the wire.

Business as usual?

The EU Council decision averts a " no deal" Brexit, but expressly leaves it to the UK government and Parliament to arrive at a final resolution that can command a majority. EU Council President Donald Tusk observed that this could involve anything from ratification of the WA to revocation of the Article 50 notice. Following the European Court of Justice (ECJ) ruling in November 2018, it would now remain open to the UK to revoke its Article 50 notice at any time before the 31 October 2019 deadline.

The EU Council's decision provides business with valuable breathing space. The Cooper-Letwin Bill has also significantly reduced the risk of a "no deal" Brexit. However, the government has not yet been able to provide clarity on the eventual outcome of Brexit. There will, inevitably, be political fallout in the UK, not least from pro-Brexit backbenchers and (possibly) from within the Cabinet. For business, a constant "watching brief" and Brexit resilience planning remain as priorities.