29 March 2019 is set to be another momentous day in the House of Commons as the government seeks approval from MPs for the Withdrawal Agreement.
Two years ago, on 29 March 2017, the United Kingdom served notice, under Article 50 of the Treaty on European Union (TEU), that it had decided to leave the European Union (EU) - Article 50 Notice: The end of the beginning (29 March 2017).
Article 50 extended:
Article 50 dictated that the European Treaties would cease to apply to the UK after two years - on 29 March 2019 - unless the European Council unanimously agreed to an extension. In the event, by European Council Decision (EU) 2019/476 of 22 March 2019, an extension was agreed until 22 May provided the Withdrawal Agreement is agreed by the House of Commons by 29 March 2019 at the latest. In the event that the Withdrawal Agreement is not approved by the House of Commons by 29 March 2019 at the latest, the period provided for in Article 50(3) TEU is extended until 12 April 2019. In that event, the United Kingdom will indicate a way forward before 12 April 2019, for consideration by the European Council.
Withdrawal Act 2018:
The European Union (Withdrawal) Act 2018 was enacted by the UK Parliament with a view to ensuring legal continuity when the UK leaves the EU. Important sections of the Act are not yet in legal force - e.g. section 1 which will repeal the European Communities Act 1972. Such sections can be triggered by a Commencement Order.
IN FORCE, is section 13 which stipulates the requirements to be met before the WITHDRAWAL AGREEMENT can be ratified and become binding on the UK in international law. One of the key requirements is section 13(1)(b) requiring the negotiated withdrawal agreement and the framework for the future relationship to have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown.
Attempts to get approval:
On 15 January, the House of Commons was asked to vote for the purposes of section 13(1)(b) and rejected (432 votes to 202) the Withdrawal Agreement and Framework for the Future Relationship (the Political declaration) - Post 15 January 2019.
On 12 March 2019, the Commons voted again and rejected (242 to 391) a package including the Withdrawal Agreement and Political Declaration - Post 12 March 2019.
On both of those occasions, a key problem (though by no means the only problem) for many MPs was the Northern Ireland Protocol which is part of the Withdrawal Agreement. It is the Protocol which sets out the so-called "backstop" arrangements (including a single customs territory between the EU and the UK) which will only come into effect if, at the end of the transition period, it has not been possible to put in place alternative arrangements so as to avoid the need for the backstop. The Protocol itself states that it is intended to apply only temporarily but it would apply unless and until superseded, in whole or in part, by a subsequent agreement. The transition period ends on 31 December 2020 but it is possible for the UK to obtain a single extension.
Motion for 29 March 2019:
The House of Commons will vote on a motion (see below) put forward by the Prime Minister which seeks approval for the Withdrawal Agreement, the Joint Instrument and the Unilateral Declaration - (laid before the House of Commons on 11 March). All of the documents are available HERE and they are aimed at providing additional reassurance that every possible effort will be made to avoid the need for the backstop. See also the Speaker's Ruling on this motion.
The motion put to the House of Commons clearly notes:
- that Article 184 of the Withdrawal Agreement refers to the Political Declaration between the UK and EU agreed on 25 November 2018, but that the EU has stated it remains open to negotiating changes to the Political Declaration
- that the House of Commons is trying to identify whether there is a design for the future relationship that commands its support; and
- that approval of the WA (and other documents) today will not meet the requirements of section 13(1)(b).
A] Does the EU Council decision permit separation of the Withdrawal Agreement and the Political Declaration? I would submit that it does permit this. Article 1 of the Decision clearly refers only to the WA being approved by 29 March 2019. There is an opposing argument which relies on a reading of the entire Decision including the Recitals (i.e. the paragraphs commencing "Whereas"). However, there appears to be nothing which necessarily requires the UK to also approve the PD at the same time as the WA.
B] A further point raised was whether section 13(1)(b) required the WA and PD to be approved together in a single motion. The subsection states:
the negotiated withdrawal agreement and the framework for the future relationship have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown
That could be read as requiring a single motion BUT the Interpretation Act 1978 section 6 will apply - unless the contrary intention appears, words in the singular include the plural and words in the plural include the singular.
It therefore appears that there is no legal reason why the WA and PD have to be approved via a single motion.
There is also the possibility that the pending Implementation Bill may seek to amend section 13 of the 2018 Act.
C] Withdrawal Agreement Article 184 (Negotiations of the Future Relationship). The Union and the United Kingdom shall use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the political declaration of 25/11/ 2018 and to conduct the relevant procedures for the ratification or conclusion of those agreements, with a view to ensuring that those agreements apply, to the extent possible, as from the end of the transition period.
The 29 March motion notes that Article 184 of the Withdrawal Agreement refers to the Political Declaration between the UK and EU agreed on 25 November 2018, but that the EU has stated it remains open to negotiating changes to the Political Declaration.
Crucially, Acceptance will deliver Brexit in an orderly manner. If the Withdrawal Agreement is approved then Exit Day will become 11pm on 22 May 2019. The EU has stated that it is open to changes to the Political Declaration. Approval will also enable work to commence immediately on the future relationship which needs to be in place from the end of the transition period. Approval will also remove possibility of a cliff-edge "no deal" departure for which the UK economy is not well-prepared. Also, there will be no requirement for the UK to take part in European Parliament elections.
If the Withdrawal Agreement is not approved then Exit Day is 12 April at 11pm. However, the UK will be able to indicate a way forward before 12 April 2019, for consideration by the European Council. That could lead to a longer extension. In turn, that raises the problematic question of UK participation in European Parliament elections - (see note below).
How will it go?
My preferred course would be to accept the Agreement and get to work on the content of the Political declaration which, to repeat, the EU has stated is open to further negotiation. Work could also commence on the future relationship to come into effect after the transition period. Regrettably, the political mood appears, on balance, to be against this view even though MPs have stated that they do not want a "No Deal" Brexit and they have also failed (so far) to come to any consensus about an alternative to the WA.
: Result :
The motion was rejected by 286 votes (Aye) to 344 (Noe). A majority of 58 - 630 votes cast. Exit Day is therefore 12 April at 11 pm. It is open to the UK to "indicate a way forward" for consideration by the EU. Efforts are to continue in Parliament next week to try to secure a stable majority for a way forward. A proposal could lead to amendment of the Political Declaration but, according to the EU Council Decision, the Withdrawal Agreement is fixed.
Hansard House of Commons 29 March 2019
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The unamended motion for 29 March 2019:
That this House notes the European Council Decision of 22 March 2019 taken in agreement with the United Kingdom extending the period under Article 50(3) of the Treaty on European Union, which provides for an extension to the Article 50 period to 22 May 2019 only if the House of Commons approves the Withdrawal Agreement by 29 March 2019; notes that if the House does not do so by that date the Article 50 period will only as a matter of law be extended to 12 April 2019 and that any extension beyond 22 May 2019 would require the UK to bring forward the necessary Day of Poll Order to hold elections to the European Parliament; notes that Article 184 of the Withdrawal Agreement refers to the Political Declaration between the UK and EU agreed on 25 November 2018, but that the EU has stated it remains open to negotiating changes to the Political Declaration; notes that the House is currently undertaking deliberations to identify whether there is a design for the future relationship that commands its support; notes that even should changes be sought to the Political Declaration, leaving the European Union with a deal still requires the Withdrawal Agreement; declares that it wishes to leave the EU with an agreement as soon as possible and does not wish to have a longer extension; therefore approves the Withdrawal Agreement, the Joint Instrument and the Unilateral Declaration laid before the House on 11 March 2019 so that the UK can leave the EU on 22 May 2019; notes that this approval does not by itself meet the requirements of section 13(1)(b) of the European Union (Withdrawal) Act 2018; and resolves that it is content to proceed to the next steps of this process, including fulfilling section 13 of this Act.
A Note on European Parliament elections:
Recital 10 to the European Council Decision notes -
..... If the United Kingdom is still a Member State on 23-26 May 2019, it will be under the obligation to hold the elections to the European Parliament in accordance with Union law. It is to be noted that the United Kingdom would have to give notice of the poll by 12 April 2019 in order to hold such elections ......
That is a clearly expressed view that the UK will have to participate in the elections. Nevertheless, a legal opinion published by Lord David Anderson QC and others has argued that a further extension to Article 50 does not certainly mean participation in the elections - "The difficulties in extending Article 50 are legion, but they do not include the illusory requirement of elections that few seem to want." The Opinion is here.