The European Union (Withdrawal) Act 2018 section 13(1) states unequivocally that the Withdrawal Agreement may be ratified only if certain requirements are met. Section 13 includes a requirement that 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.
MV1 and MV2:
On 15 January, the government failed to obtain the approval of the House of Commons to the Withdrawal Agreement (WA) and Political Declaration (PD). This came to be referred to as Meaningful Vote 1 or MV1.
On Tuesday 12 March the government sought approval for a package combining the WA and PD with three other documents (HERE). Approval of this package was declined by MPs - previous post. This has been referred to as MV2.
That defeat was followed by the House deciding on 13 March that a "no deal" departure was unacceptable and then, on 14 March, voting in favour of seeking an extension to Article 50 TEU - previous post.
MV3?
There was much speculation as to whether the government would seek approval of the House on a third occasion during the week beginning Monday 18 March. This led the Speaker of the House of Commons (Mr John Bercow MP) to make a statement in which he pointed to a long-standing convention set out in Erskine May (Parliamentary Practice). The Speaker said:
The 24th edition of “Erskine May” states on page 397:
“A
motion or an amendment which is the same, in substance, as a question
which has been decided during a session may not be brought forward again
during that same session.”
It goes on to state:
“Attempts
have been made to evade this rule by raising again, with verbal
alterations, the essential portions of motions which have been
negatived. Whether the second motion is substantially the same as the
first is finally a matter for the judgment of the Chair.”
Read the Speaker's Statement 18 March 2019
In his statement, the Speaker said that MV2 was not, in his view, the same question as MV1. That was because "it could be credibly argued that it was a different proposition from that already rejected by the House on 15 January. It contained a number of legal changes which the Government considered to be binding and which had been agreed with the European Union after intensive discussions. Moreover, the Government’s second meaningful vote motion was accompanied by the publication of three new documents—two issued jointly with the EU and a unilateral declaration from the UK not objected to by the EU. In procedural terms, it was therefore quite proper that the debate and the second vote took place last week."
The Speaker concluded by saying - "It has been strongly rumoured, although I have not received confirmation of this, that a third, and even possibly a fourth, meaningful vote motion will be attempted. Hence this statement, which is designed to signal what would be orderly and what would not. This is my conclusion: if the Government wish to bring forward a new proposition that is neither the same nor substantially the same as that disposed of by the House on 12 March, that would be entirely in order. What the Government cannot legitimately do is to resubmit to the House the same proposition or substantially the same proposition as that of last week, which was rejected by 149 votes. This ruling should not be regarded as my last word on the subject; it is simply meant to indicate the test which the Government must meet in order for me to rule that a third meaningful vote can legitimately be held in this parliamentary Session."
The last sentence is crucial. The statement is not the Speaker's last word. Ultimately, the House controls its own procedure and it is open to it to disapply the convention and to accept a further vote.
The European Council meets on 21-22 March 2019.
Article 50 extension:
Whether or not MV3 takes place, some form of extension to Article 50 will be required if Brexit on 29 March is to be avoided. In the absence of an extension, Brexit will take place without a deal on 29 March.
On 18 March, the House of Commons also debated the Article 50 Extension procedure - see Hansard. The Parliamentary Under-Secretary of State (Kwasi Kwarteng MP) said - "
"It is highly likely and expected that the European
Council will require a clear purpose for any extension, not least to
determine its length. The European Council has to approve an extension
by unanimity. With this in mind, we will look to request any extension
in advance of the March European Council. It is the Government’s
expectation that the European Council will decide whether to agree any
UK request at this meeting.
As
soon as possible following agreement at the EU level, we will bring
forward the necessary domestic legislation to amend the definition of
exit day. That legislation will take the form of a statutory instrument.
If agreement is reached at the European Council, the statutory
instrument will be laid before Parliament next week. The draft will be
subject to the affirmative procedure, and will need to be approved by
each House. I hope this reassures hon. and right hon. Members about the
procedure that will be followed this week and next."
The words clear purpose are my emphasis and are an important point. The EU will need good reason to be persuaded that an extension is required. It is thought that an extension would be agreed for matters such as ensuring that necessary legislation was in place or to hold a further referendum. It may also be possible to extend if the UK were to put forward new proposals to avoid the need for a backstop relating to Northern Ireland.
Legal power to request extension?
Does the government actually have legal power to request an extension to Article 50? As things stand, there is no explicit statutory power authorising Ministers to request an extension but there is power in the EU (Withdrawal) Act 2018 section 20 to amend in domestic law the definition of "Exit Day". An order to do so must be approved by both Houses of Parliament.
It was held by the Supreme Court that statutory authority was required to give the Article 50 notice. The essential basis for this ruling was that statutory power is required to alter / remove the rights of citizens.
An extension to Article 50 would preserve the status quo for the duration of the extension and it might therefore be possible for an extension request to be made under prerogative power relating to foreign affairs / international relations.
As far as I can see, this point is not crystal clear and statutory authority would be the preferable route though there is almost certainly no time to enact such legislation in the short time before exit day - see Institute for Government 19 March 2019 where it is argued that - "if the Government wants to be absolutely certain of avoiding the risk of another court challenge, it could ... bring forward a short bill which gave ministers an explicit power to ask for an extension."
Further discussion on this may be seen at UK Constitutional Law Group - Can the government use the royal prerogative to extend Article 50 and on the same blog at Why Royal consent is required for the proposed Article 50 extension Bill.
The words clear purpose are my emphasis and are an important point. The EU will need good reason to be persuaded that an extension is required. It is thought that an extension would be agreed for matters such as ensuring that necessary legislation was in place or to hold a further referendum. It may also be possible to extend if the UK were to put forward new proposals to avoid the need for a backstop relating to Northern Ireland.
Legal power to request extension?
Does the government actually have legal power to request an extension to Article 50? As things stand, there is no explicit statutory power authorising Ministers to request an extension but there is power in the EU (Withdrawal) Act 2018 section 20 to amend in domestic law the definition of "Exit Day". An order to do so must be approved by both Houses of Parliament.
It was held by the Supreme Court that statutory authority was required to give the Article 50 notice. The essential basis for this ruling was that statutory power is required to alter / remove the rights of citizens.
An extension to Article 50 would preserve the status quo for the duration of the extension and it might therefore be possible for an extension request to be made under prerogative power relating to foreign affairs / international relations.
As far as I can see, this point is not crystal clear and statutory authority would be the preferable route though there is almost certainly no time to enact such legislation in the short time before exit day - see Institute for Government 19 March 2019 where it is argued that - "if the Government wants to be absolutely certain of avoiding the risk of another court challenge, it could ... bring forward a short bill which gave ministers an explicit power to ask for an extension."
Further discussion on this may be seen at UK Constitutional Law Group - Can the government use the royal prerogative to extend Article 50 and on the same blog at Why Royal consent is required for the proposed Article 50 extension Bill.
The transition period:
Article 126 of the Withdrawal Agreement defined the transition period -
"There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020."
It appears to follow from this definition that transition will end on 31 December 2020 even if an extension to Article 50 was granted. Confirmation of this point will be required.
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