Art 50 - EU Council conclusions:
On 21 March, the European Council responded to the Prime Minister's request (previous post) for an extension, until 30 June, of Article 50.
The Council conclusion was to agree an extension until 22 May 2019 provided the Withdrawal Agreement is approved by the House of Commons by 29 March at the latest.
If the Withdrawal Agreement is not so approved by the House of Commons, the European Council agrees to an extension until 12 April 2019 and expects the United Kingdom to indicate a way forward before this date for consideration by the European Council.
Council also approved the Instrument relating to the Withdrawal Agreement and the Joint Statement supplementing the Political Declaration agreed between the European Commission and the government of the United Kingdom in Strasbourg on 11 March 2019 - [see HERE].
Further, the European Council reiterated that there can be no opening of the Withdrawal Agreement that was agreed between the Union and the United Kingdom in November 2018. Any unilateral commitment, statement or other act should be compatible with the letter and the spirit of the Withdrawal Agreement.
See the European Council Art 50 conclusions, 21 March and the Council Decision 22 March formalising the political agreement reached on 21 March 2019 on extending the period under Article 50. Also see the UK Government's letter agreeing to the extension.
Prime Minister's Statement:
Prime Minister's Statement 21 March
"After a lengthy discussion, the council today also agreed, subject to a successful vote next week, that in order to provide time for the UK Parliament to agree and ratify a Brexit deal, the date of our departure will now be extended to 22 May.
If Parliament does not agree a deal next week, the EU Council will extend Article 50 until 12 April. At this point we would either leave with no deal, or put forward an alternative plan."
Parliament:
On 12 March, the House of Commons rejected the Withdrawal Agreement, Political Declaration and three other documents - Hansard 12 March. The WA and PD were also rejected on 15 January.
The Prime Minister has tabled a motion for 25 March -
That this House, in accordance with the provisions of
section 13(6)(a) of the European Union (Withdrawal) Act 2018, has considered
the Written Statement titled “Statement under Section 13(4) of the European Union (Withdrawal) Act 2018” and made on Friday 15 March 2019.
Exit Day:
Section 1 of the European Union (Withdrawal) Act 2018 repeals the European Communities Act 1972 on "Exit Day." Section 1 requires a Commencement Order to bring it into force.
At the time of writing, Exit Day continues to be defined in domestic law as 11pm on Friday 29 March - section 20 of the European Union (Withdrawal) Act 2018. The Act enables exit day to be amended but both Houses of Parliament have to vote in favour of amendment.
Uncertainty:
Brexit and the associated political turmoil have brought the UK to a precarious position with both CBI and TUC describing the situation as a national emergency and with assets in the region of £1 trillion likely to leave the country. The way forward is unclear with MPs utterly unable to agree on any alternative plan. A "no deal" exit is an event for which the UK is exceptionally ill-prepared even if government has its contingency plans in place including an "operations room" under the Ministry of Defence building in Whitehall.
The political calculus in the House of Commons does not bode well for acceptance of the already twice-rejected withdrawal agreement though it is always possible - even if unlikely - that MPs might grit their teeth and vote for it. If they vote for acceptance then Exit Day will become 22 May and amendment will be required of the definition of Exit Day in the EU (Withdrawal) Act. Further legislation will be required to implement the Withdrawal Agreement. 22 May is a short time to get this through Parliament and, as things stand, Parliament's Easter recess is 4 to 23 April (subject to confirmation).
If MPs - yet again - reject the withdrawal agreement then we can expect that Parliament will be asked to amend Exit Day to 12 April so as to keep in line with the EU Council decision. If they vote in favour of the extension then there will be just over two weeks to indicate a way forward for consideration by the European Council. There would be little point in the government persisting with its present proposals and a clear alternative will be needed. What form that might take is open to conjecture but it is likely to require a departure from the "red lines" set by Theresa May and to which she has, so far, been superglued. New proposals are likely to necessitate a much longer extension and with that may come participation in the European Parliament elections. I am not certain that UK participation in the elections would be essential whilst the UK was in an extension period but I will leave this point for the future and address it should the need arise.
What has happened about 29 March?
The EU Council decision has extended the Article 50 period and the UK has agreed to the extension. The EU Treaties continue to apply to the UK until the end of the extension.
At the moment, 29 March continues to be the definition of Exit Day in section 20 of the European Union (Withdrawal) Act 2018 but, as noted above, this can be amended.
A point to look out for is whether Ministers bring forward an amendment to the definition of Exit Day so as to keep domestic law in line with the EU Council decision. It seems likely that they will do so but the amendment will require the approval of both Houses of Parliament.
Numerous Statutory Instruments are expressed to come into force on Exit Day. This is good reason to ensure that the definition of Exit Day is in line with the EU position.
I suppose that there is a possibility that an amendment to Exit Day could either not be brought forward or, if brought forward, rejected by Parliament. This post does not look further at this, perhaps unlikely, scenario.
The European Communities Act 1972 will remain in force until commencement of section 1 of the 2018 Act. Section 1 - which will repeal the 1972 Act on Exit Day - is not yet in force since it requires a Commencement Order.
A further referendum?
A "People's Vote March" was held in London on 23 March and in the region of 1 million people attended - The Guardian Video report 23 March. The government has, so far, been opposed to this and, on 14 March, the House of Commons voted against a further referendum.
A further referendum will require enabling legislation to be enacted and there is likely to be considerable argument over the precise question or questions to be asked.
Revocation?
There is always the option of Revocation. The Wightman case (previous post 10 December 2018) removed any doubts as to whether this was possible. An online petition asking Parliament to revoke the Article 50 notice has attracted over 5 million signatures - The Guardian 23 March.
Any revocation must be 'unequivocal and unconditional.'
It seems certain than legislation would be required to revoke Article 50.
Another potential problem?
Views have been expressed that an Act of Parliament is required to empower the government to agree to an article 50 extension - see, for example, Freshfields Bruckhaus Deringer 23 January. For an argument to the contrary see the post by Robert Craig at UK Constitutional Law Group. I am not aware of whether any legal advice has been given to government on this point. It would be singularly unfortunate if a judicial review were to arise of a government decision to agree the Article 50 extension.
We live in "interesting times" and the situation is very fluid ...... the case continues !
Other:
Public Law for Everyone - Professor Mark Elliott - Extending Article 50: Separating myth and legal reality
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