Another week of chaos

The uncertainty this week has been unprecedented. The atmosphere in the Commons frustrated and febrile. Trying to plan for the future is proving more and more difficult for businesses, communities and individuals as the politics of Brexit becomes more and more unpredictable.  

After a rollercoaster of Brexit developments this week, the EU summit concluded with an extension to Article 50. The EU27 essentially agreed to a two-tier plan:

1) If May gets her deal through Parliament, there will be a short, technical extension to 22 May. But that is still unlikely and May’s speech on Wednesday night did not help- declaring MPs refusal to accept her deal as eroding trust in politics may not have been the smartest of tactics when those are the people she desperately needs support from.

2) The other (more likely scenario) is that MPs reject the deal- the UK then has until 12 April to come up with an alternative. 12 April is a hard deadline as that is when the UK government would have to notify the European Commission that it intends to contest elections to the European Parliament, without which the UK cannot remain a member in the long term.

Next week in Parliament

It’s shaping up to be another ‘crunch’ point week in Parliament next week. On Monday, MPs will debate the government’s written statement that they tabled on Friday (available here). The statement simply sets out that Parliament has rejected the deal twice, that MPs have voted in favour of taking no deal off the table and in favour of extending Article 50 and finally the government next Brexit steps. The motion is neutral and typically those are not amendable. However, because of an amendment tabled by Dominic Grieve passed in December, MPs can now amend it. 

The latest version of the Cooper/Boles/Benn / Letwin amendment to this motion is already tabled. This is the amendment which aims to give Parliament control of the timetable and start the process of trying to find an alternative way forward in the Commons. It was only defeated by two votes last week and could likely pass on Monday. But the question is what if any alternative will MPs coalesce around? An EFTA-type agreement? Acceptance of the Withdrawal Agreement on the condition that the government holds a confirmatory referendum (i.e. the Kyle/Wilson amendment)? Approval of the deal but a guarantee that parliament set out the negotiating mandate for the future relationship? Who knows and only next week will tell.

The other question is when exactly the third meaningful vote will be. The vote could be held on Tuesday. However, Downing Street was unable to say which day the Government would seek to bring back the Withdrawal Agreement for a third meaningful vote. There will also be a number of Brexit-related statutory instruments debated next week and Andrea Leadsom confirmed she will make a further business statement as necessary to give time to change exit day in the EU Withdrawal Act and another meaningful vote. 

There some speculation as to whether the government will be allowed to hold another vote. Speaker John Bercow ruled on Monday that the same motion cannot be voted on twice in the same session. unless it is substantially different from the package which was defeated in the second meaningful vote last week. That said, it is expected that a vote will be possible as the agreement on the extension will constitute a substantial change from the previous meaningful vote. 

We need to talk about ‘exit day’ 

Remember when the EU Withdrawal Act 2018 was being debated in Parliament?  Remember how the government promised this Bill that would ensure ‘legal certainty” and a “functioning statue book” post-Brexit? Well, if an extension is granted, we may find ourselves in a situation where this very piece of legislation leaves us in legal chaos and in breach of international treaty obligations. 

One of the purposes of the EU Withdrawal Act 2018 is to repeal the European Communities Act (ECA) 1972 on ‘exit day’. In essence, the ECA 1972 gave effect to the UK’s membership of the European Union and EU law taking effect in the UK currently relies on the 1972 Act. On ‘exit day’ the ECA 1972 is repealed and the new system of ‘retained EU law take effect. As the excellent blog by Hansard Society points out- ‘exit day’ also serves other purposes in domestic law. It is the day on which the jurisdiction of the Court of Justice of the EU in the UK ends, when the two-year sunset clause on ministers power’s to amend retained EU law begins and when a number of Brexit-related statutory instruments come into effect  

Now that an extension of Article 50 has been agreed with the EU and the UK will remain a member of the EU up until April at least, ‘exit day’ has to be amended in domestic law. If the ECA is repealed before the UK leaves the EU, the UK will be in breach of its international legal obligations, under EU treaties. Exit day can be amended via statutory instrument (overview of procedures here)- it can’t be moved any earlier than Wednesday next week, as the meaningful vote 3 is not expected until Tuesday, at least. And it won’t be clear which date exit day will be until we know whether the third meaningful vote is passed.

Also, see explainer from the House of Commons Library here.