Brexit. UK to exit with no deal on 31 October unless Parliament passes vote of no confidence in the government.

With the resignation of Mrs May and the end of any prospect of Parliament passing the withdrawal agreement reached with the EU last November, it is looking very likely that the UK will leave the EU with no deal on 31 October. This is the default position under the EU Withdrawal Act 2018. Analysis by Maddy Thimont of the Institute of Government shows that the only way a no-deal exit could be stopped would be by Parliament passing a vote of no-confidence in the government. https://www.instituteforgovernment.org.uk/blog/new-prime-minister-intent-no-deal-brexit-cant-be-stopped-mps-0

The ‘Cooper’ clause added to the 2018 Act would only have effect in relation to any proposed ratification of the proposed withdrawal agreement with the EU. The clause in the 2018 Act requiring required the Government to hold a vote in the Commons if no agreement had been reached with the EU by 21 January is somewhat time expired now.

Who’d want to be PM now?

PM gets extension to article 50.

 

The EU last night agreed to extend the period referred to in Article 50 as follows.

Conclusions – 10 April 2019
EUCO XT 20015/19 1
EN
1. The European Council takes note of the letter of Prime Minister Theresa May of 5 April 2019 asking for a further extension of the period referred to in Article 50(3) TEU.
2. In response, the European Council agrees to an extension to allow for the ratification of the Withdrawal Agreement. Such an extension should last only as long as necessary and, in any event, no longer than 31 October 2019. If the Withdrawal Agreement is ratified by both parties before this date, the withdrawal will take place on the first day of the following month.
3. The European Council underlines that the extension cannot be allowed to undermine the regular functioning of the Union and its institutions. If the UK is still a Member of the EU on 23-26 May 2019 and if it has not ratified the Withdrawal Agreement by 22 May 2019, it must hold the elections to the European Parliament in accordance with Union law. If the United Kingdom fails to live up to this obligation, the withdrawal will take place on 1 June 2019.
4. The European Council reiterates that there can be no opening of the Withdrawal Agreement, and that any unilateral commitment, statement or other act should be compatible with the letter and the spirit of the Withdrawal Agreement and must not hamper its implementation.
5. The European Council stresses that such an extension cannot be used to start negotiations on the future relationship. However, if the position of the United Kingdom were to evolve, the European Council is prepared to reconsider the Political Declaration on the future relationship in accordance with the positions and principles stated in its guidelines and statements, including as regards the territorial scope of the future relationship.
6. The European Council notes that, during the extension, the United Kingdom will remain a Member State with full rights and obligations in accordance with Article 50 TEU, and that the United Kingdom has a right to revoke its notification at any time.

 

Accordingly, provided Parliament approves the necessary statutory instrument to amend ‘exit day’ in the EU Withdrawal Act 2018 in time, the UK will not leave the EU at 11pm  on 12 April 2019. The requisite SI is The European Union (Withdrawal) Act 2018 (Exit Day)
(Amendment) (No. 2) Regulations 2019.

Is half a deal better than a no-deal exit in a fortnight? Parliament votes today.

29 March. The government today is putting forward a motion to pass part of its withdrawal agreement with the EU, the withdrawal agreement, but not the political declaration. If this passes there will be an extension to exit day to 22 May in accordance with the agreement reached between the PM and the EU last week. If not, exit day will be 12 April unless a further extension is requested by the PM, whoever that may be. In the meantime Parliament votes again on indicative votes on Monday after the failure of any of the proposals put forward on Wednesday to obtain a majority.

 

MPs  voted by 286 to 344 to reject the government’s withdrawal agreement.

 

9 April. The House of Commons has just approved the government motion that the Prime Minister requests an article 50 extension until 30 June. Leaders of the 27 EU Member States will consider the request tomorrow at the meeting of the  Council of Ministers. If there is no unanimous agreement to extend article 50 then the UK leaves the EU without a withdrawal agreement on Friday at 11pm.

Brexit. Parliament takes control of the process but no deal exit on 12 April still a real possibility.

Last night MPs voted to take control of the Brexit process, and indicative votes will be held on Wednesday to endeavour to find a majority view in Parliament as to what form Brexit should take. This cannot affect the withdrawal process but can only give guidance as to the future negotiation after withdrawal of the relationship between the EU and the UK.

The PM stated she would introduce a statutory instrument to amend ‘exit day’ in the EU Withdrawal Act 2018 and this would be laid on Wednesday, so no exit on 29 March. Mrs Leadsom has now stated that this will take place after the indicative votes on Wednesday.

A further extension beyond 12 April can only be granted if the PM asks for one.  If the withdrawal agreement is passed then the extension would be to 22 May. If not then the UK would leave the EU on that date. It is possible that this might be forestalled by a vote of no confidence in the government followed by the appointment of a temporary PM with the mandate of requesting a further extension and ensuring the UK participates in the elections to the European Parliament on 23 May.

Brexit. UK leaves EU on 29 March?

Yes, unless ‘exit day’ in the EU Withdrawal Act 2018 is amended by statutory instrument. The procedure for this is set out here https://www.hansardsociety.org.uk/blog/changing-eu-exit-day-by-statutory-instrument. This states “Normally, from laying to making the SI, the draft affirmative procedure takes around six weeks.

However, given the steps outlined above, the process could be accelerated. We see no insuperable procedural obstacle to proceedings on the ‘exit day’ SI being completed by 29 March if the draft SI were laid, for example, on Friday 22 or Monday 25 March.”

 

No draft SI has yet been laid.

PM wins article 50 extension from EU

The PM asked for an extension of article 50 to 30 June.

The PM got a two-tier extension.

22 May if Parliament passes the withdrawal agreement

12 April if it doesn’t.

Much talk of ‘indicative votes’ in Parliament next week. If this leads to a consensus on the type of Brexit to be achieved, this could only affect the political declaration as to the  negotiation of the UK’s future relationship with the EU. The withdrawal agreement, backstop and all, cannot be changed and if it is not passed the UK leaves the EU on 12 April, subject to amendment by Statutory Instrument next week of “exit day” in the EU Withdrawal Act 2018, unless a further extension is granted. This would almost certainly require the UK to hold elections for the European Parliament on 23 May.

Brexit. Nine days to go. PM seeks short extension.

The Prime Minister has just written to the EU requesting an extension to article 50 up to 30 June. A common refrain among EU Members has been that for an extension to be granted there needs to be a plan. As Michel Barnier stated yesterday any extension must be “linked to something new, a new political event, a new political process”. It is by no means certain that the extension requested will be granted by leaders of all 27 Member States. It is possible that an extension may be granted subject to conditions, such as UK participation in the elections for MEPs on 23 May. The possibility of a no-deal exit on 29 March remains.

 

The European Commission has taken the following position on the request for an extension beyond 23 May, according to this report from Reuters a few hours ago.

The European commission opposes extending British membership of the European Union to June 30, as British prime minister Theresa May proposed on Wednesday, according to an EU document seen by Reuters.

In a note on the Brexit process reviewed by the commission at its weekly meeting on Wednesday, officials wrote that leaders meeting May at a summit on Thursday faced a “binary” choice of a short delay of  Brexit from 29 March to before 23 May or a long delay to at least the end of this year, with Britain obliged to hold an election on 23 May for European parliament lawmakers.

“Any extension offered to the United Kingdom should either last until 23 May 2019 or should be significantly longer and require European elections,” the document said. “This is the only way of protecting the functioning of the EU institutions and their ability to take decisions.”

EU states which were due to receive additional legislative seats after Brexit would need to know by mid- to late-April if they would be denied those seats because Britain was staying.

The note also said that in any extended membership, Britain should, “in a spirit of loyal cooperation”, commit to “constructive abstention” on key issues, such as the EU’s long-term budget and filling top EU posts after the May election.

 

So, that looks like a ‘no’.

Less than two weeks to go until the UK exits the EU – or not?

 

After last week’s votes in the Commons on Thursday, the Prime Minister will put her withdrawal deal to the Commons for a third time on Tuesday. If it is passed she will ask the Council of Ministers of the EU for an extension until 30 June. If it is rejected she will ask for a longer extension and the UK will participate in the election of MEPs on 23 May.

Any extension requires unanimous agreement from all 27 Member States. There is a possibility that this may not be obtained in which case 29 March remains ‘exit day’ – or does it? Watch this space for ferocious times in Parliament in the final week before ‘exit day’ for a motion calling on the government to revoke the article 50 notice – and then to give the EU a further article 50 notice? Interesting discussion of the legalities of this can be found at http://goodlegaladvice.co.uk/?p=12486

After Speaker Bercow’s decision this afternoon not to allow the government to bring back its defeated motion of last week for a second time, we may soon be hearing about the ‘p’ word – prorogue.

Going through the motions. What’s on the menu tonight in the Commons.

 

  1. The government motion.

“That this House declines to approve leaving the European Union without a Withdrawal Agreement and a Framework for the Future Relationship on 29 March 2019; and notes that leaving without a deal remains the default in UK and EU law unless this House and the EU ratify an agreement.”

  1. The amendment to the government motion from Jack Dromey and Dame Caroline Spelman which states “this House rejects the United Kingdom leaving the European Union without a Withdrawal Agreement and a Framework for the Future Relationship”.
  2. The ‘Malthouse Compromise’ which sets out the process for a “managed no-deal”. It requests:
  • The government publish tariff schedules
  • An extension of leaving to 22 May 2019
  • ‘Mutual standstill agreements’ between the UK and EU until the end of 2021, including payments to the EU
  • A unilateral guarantee of citizens’ rights

The third and fourth parts of the process look like the withdrawal agreement transition period but lasting another year and with no backstop at the end. Unlikely to be accepted by the EU.

 

Brexit and the return of Solomon Binding? The new UK-EU agreements on the Northern Ireland ‘backstop’.

 

 

Those of us of a certain age will remember the ‘solemn and binding’ undertaking given by TUC leaders to Harold Wilson following the rejection of his proposals for industrial relations reform in 1969. This swiftly turned into the fictitious comic character, ‘Solomon Binding’? Is Solomon’s hand hovering over the three documents that emerged after the Prime Minister’s  meeting in Strasbourg last night and which will be put before the House of Commons tonight.

First there is the INSTRUMENT RELATING TO THE AGREEMENT ON THE WITHDRAWAL OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND FROM THE EUROPEAN UNION AND THE EUROPEAN ATOMIC ENERGY COMMUNITY 

The agreement refers to arbitration under the mechanisms already established in the Protocol in the event that a party acts with the objective of applying the Protocol indefinitely and that a ruling by the panel would be binding on both parties. It does not alter the text of the withdrawal agreement. There is no time limit on the backstop. There is no procedure for either the UK or the EU to terminate the backstop unilaterally.

The key parts of the agreement as regards the backstop are set out below.

 

  1. A subsequent agreement replacing the customs and regulatory alignment in goods elements of the Protocol could stand alone or form part of a wider agreement or agreements on the future relationship, depending on the progress of the wider negotiations. Alternative arrangements, which supersede the Protocol in whole or in part, in accordance with Article 2 of the Protocol, are not required to replicate its provisions in any respect, provided that the underlying objectives continue to be met. In the event that the agreement needs to stand alone due to delays in progress on the wider negotiations, the parties will aim at establishing this agreement very rapidly after the end of the transition period in full respect of the parties’ respective legal orders.
  2. The Union and the United Kingdom agree that once negotiations on alternative arrangements have been completed to the satisfaction of both parties, the outcome will be transposed into a subsequent agreement. The subsequent agreement transposing the alternative arrangements will be applied as soon as possible after its signature, if necessary and appropriate by means of provisional application, in line with the applicable legal frameworks and existing practice.
Compliance and unilateral suspension
  1. The Union and the United Kingdom agree that it would be inconsistent with their obligations under Article 5 of the Withdrawal Agreement and Article 2(1) of the Protocol for either party to act with the objective of applying the Protocol indefinitely. Should the Union or the United Kingdom consider the other party was acting in this way after the Protocol became applicable, it could make use of the dispute settlement mechanism enshrined in Articles 167 to 181 of the Withdrawal Agreement.
  2. If a dispute arises in relation to Article 5 of the Withdrawal Agreement and Article 2(1) of the Protocol, the Union and the United Kingdom will immediately enter into consultations in the Joint Committee. They will endeavour to resolve the dispute in a timely manner, with the aim of reaching a mutually agreed solution. With a view to facilitating such a solution, each party will provide a written reasoned justification of its respective position and will respond in writing to the other.
  3. Under the dispute settlement mechanism, a ruling by the arbitration panel that a party acts with the objective of applying the Protocol indefinitely would be binding on the Union and the United Kingdom. Persistent failure by a party to comply with a ruling, and thus persistent failure by that party to return to compliance with its obligations under the Withdrawal Agreement, may result in temporary remedies. Ultimately, the aggrieved party would have the right to enact a unilateral, proportionate suspension of its obligations under the Withdrawal Agreement (other than Part Two), including the Protocol. Such a suspension may remain in place unless and until the offending party has taken the necessary measures to comply with the ruling of the arbitration panel.

 

Second, there is joint statement supplementing the Political Declaration setting out the framework for the future relationship between the EU and the UK 

The meat of the statement is in paragraph six which sets out

 

6 Fifth, given the Union’s and the United Kingdom’s firm commitment to work at speed on a subsequent agreement that establishes by December 31st, 2020 alternative arrangements such that the backstop solution in the Protocol on Ireland/Northern Ireland will not need to be applied, a specific negotiating track will be established at the outset and as part of the negotiations to lead the analysis and development of these alternative arrangements. This dedicated track will consider the use of all existing and emerging facilitative arrangements and technologies, with a view to assessing their potential to replace, in whole or in part, the backstop solution in the Protocol on Ireland/Northern Ireland.
That assessment will include an evaluation of their practicability and deliverability in the unique circumstances of Northern Ireland. By virtue of being embedded in the overall negotiation structure, the negotiating track on alternative arrangements will be able to take account of progress made in the wider negotiations on the future relationship, in particular on goods regulations and customs.
In addition, and in support of their work on alternative arrangements, both the Union and the United Kingdom will consult with private sector experts, businesses, trade unions, the institutions established under the Good Friday or Belfast Agreement, and appropriate involvement of parliaments. In the first instance, the progress concerning alternative arrangements will be assessed at the first high level conference envisaged by the Political Declaration. To ensure that the negotiations are concluded in good time, further progress will be reviewed at each subsequent high level conference.

Thirdly, there is the UK’s unilateral declaration concerning the Northern Ireland Protocol. The third paragraph deals with a situation where there is a breach by the EU of the parties’ obligation under Article 5 of the withdrawal agreement which states “The Union and the United Kingdom shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement”.

 

“The United Kingdom wishes to record its understanding of the effect of this provision if, contrary to the intentions of the parties, it is not possible for them to conclude an agreement which supersedes the Protocol in whole or in part due to a breach of Article 5 of the Withdrawal Agreement by the Union. The United Kingdom would not consider its application to be temporary in these circumstances, as in its view the Protocol would then constitute a permanent relationship between the Union and the United Kingdom. Article 1(4) makes clear this is not the Parties’ intention. If under these circumstances it proves not to be possible to negotiate a subsequent agreement as envisaged in Article 2 of the Protocol, the United Kingdom records its understanding that nothing in the Withdrawal Agreement would prevent it from instigating measures that could ultimately lead to disapplication of obligations under the Protocol, in accordance with Part Six, Title III of the Withdrawal Agreement or Article 20 of the Protocol, and under the proviso that the UK will uphold its obligations under the 1998 Agreement in all its dimensions and under all circumstances and to avoid a hard border on the island of Ireland.”

 

The Attorney General is expected to produce his advice to the House of Commons on the legal effect of these three documents later this morning in advance of the vote scheduled for later today.