Friday, 13 September 2019

The European Union (Withdrawal) (No 2) Act 2019

The Prime Minister said that "he would rather be dead in a ditch" than seek a further extension of UK membership of the EU and Michael Gove (Chancellor of the Duchy of Lancaster), in an interview with Andrew Marr, refused to guarantee that government would obey legislation to block a no-deal Brexit - The Guardian 1 September 2019.

The European Union (Withdrawal) (No 2) Act 2019 is now law and imposes certain duties relating to Brexit on Ministers including duties on the Prime Minister.

That Ministers are under an obligation
to obey the law should not need to be said. It is fundamental to the system of government. The August 2019 Ministerial Code - (issued by Mr Johnson) - refers (para 1.3) to the "overarching duty on Ministers to comply with the law." 

EU (Withdrawal) Act 2018:

The European Union (Withdrawal) Act 2018 section 13 continues to be applicable so that a withdrawal agreement may not be ratified unless the requirements of that section are met. Section 13 requires a withdrawal agreement and framework for the future relationship to be approved by House of Commons and noted by the Lords. There must also be an Act of Parliament containing provision for the implementation of the withdrawal agreement.

EU (Withdrawal) (No 2) Act 2019:

The No.2 Act contains 5 sections and one schedule. The Act came into force when it received Royal Assent - 9 September 2019.

Section 1 - Duties in connection with the withdrawal of the UK from the European Union.

The conditions:

Section 1(1) and Section 1(2) contain definitions of certain "conditions"  It is vital to understand what each condition entails.  [My emphasis added].


 Section 1(1) -The condition in this subsection is that a Minister of the Crown has laid before each House of Parliament a statement that the United Kingdom has concluded an agreement with the European Union under Article 50(2) of the Treaty on European Union and a copy of the agreement and -

(a) the agreement has been approved by resolution of the House of Commons on a motion moved by a Minister of the Crown, and

(b) a motion for the House of Lords to take note of the agreement has been tabled in the House of Lords by a Minister of the Crown and—

(i) the House of Lords has debated the motion, or

(ii) the House of Lords has not concluded a debate on the motion before the end of the period of two Lords sitting days beginning with the first Lords sitting day after the day on which the House of Commons passes the resolution mentioned in paragraph (a).

The words "concluded an agreement" appear to require that negotiations to reach an agreement have ended with an outcome that both the EU Council and the UK Government are prepared to adhere to.  If section 1(1) is met then the government could proceed to ratify the agreement subject to section 13 of the 2018 Act also being complied with.

 Section 1(2) -The condition in this subsection is that a Minister of the Crown has laid before each House of Parliament a statement that the United Kingdom is to leave the European Union without an agreement having been reached under Article 50(2) of the Treaty on European Union and -

(a) the statement has been approved by resolution of the House of Commons on a motion moved by a Minister of the Crown in the following form -

“That this House approves the withdrawal of the United Kingdom from the European Union under Article 50 of the Treaty on European Union on exit day, without a withdrawal agreement as defined in section 20(1) of the European Union (Withdrawal) Act 2018”, and

(b) a motion for the House of Lords to take note of the statement has been tabled in the House of Lords by a Minister of the Crown and—

(i) the House of Lords has debated the motion, or

(ii) the House of Lords has not concluded a debate on the motion before the end of the period of two Lords sitting days beginning with the first Lords sitting day after the day on which the House of Commons passes the resolution mentioned in paragraph (a).


The conditions in sections 1(1) and 1(2) will fail to be met if one or more of the specified requirements is not met. The conditions would also fail to be met if Ministers do not lay before Parliament either of the statements.

If section 1(1) is complied with then (presumably ?) the UK would leave the EU with the concluded withdrawal agreement BUT the provisions of section 13 of the European Union (Withdrawal) Act 2018 will still apply in order for the withdrawal agreement to be ratified and the political declaration approved

If section 1(2) is complied with then the UK would leave the EU without a withdrawal agreement and the House of Commons would have approved that course.

Section 1(3) -

"If neither of the conditions is satisfied, then section 1(4) must be complied with no later than 19 October 2019."

Section 1(4)

The Prime Minister "must seek to obtain from the European Council an extension of the period under Article 50(3) of the Treaty on European Union ending at 11.00pm on 31 October 2019 by sending to the President of the European Council a letter in the form set out in the Schedule to this Act requesting an extension of that period to 11.00pm on 31 January 2020"

- the subsection then continues by stating that the purpose for seeking an extension is -

"in order to debate and pass a Bill to implement the agreement between the United Kingdom and the European Union under Article 50(2) of the Treaty on European Union, including provisions reflecting the outcome of inter-party talks as announced by the Prime Minister on 21 May 2019, and in particular the need for the United Kingdom to secure changes to the political declaration to reflect the outcome of those inter-party talks."

The words (shown above in italics) were inserted by way of an amendment moved by Stephen Kinnock MP. It appears that the amendment passed the Commons by mistake (see Labour List 4 September) but an attempt in the Lords to remove the amendment failed by 268 votes to 47 - iNews 6 September 2019.

No formal agreement was reached in the inter-party talks held in the Spring of 2019 but, on 22 May 2019, Theresa May made a statement to Parliament indicating that there was common ground and also containing 10 commitments.  See also Prime Minister's Statement 21 May 2019.  Mrs May resigned as Prime Minister on 7 June 2019 but announced her intention to do so on 24 May.

Section 2 -

applies in the event that an extension is agreed. In that case, the government is required, by 30 November 2019, to publish a report explaining what progress has been made in negotiations on the United Kingdom’s relationship with the European Union. The Secretary of State has to bring a motion to the House of Commons to seek approval of the report. [The Lords will take note of it].

If the motion tabled in the House of Commons is rejected or amended, the Secretary of State must, by 10 January 2020, publish a further report under subsection (1) setting out a plan for further negotiations on the United Kingdom’s relationship with the European Union.

Also, further reports are required at least every 28 calendar days starting on 7 February 2020 either until an agreement with the European Union is reached or until otherwise indicated by a resolution of the House of Commons.

Section 3 - 

Section 3(1) applies if the EU Council agrees to an extension to 31 January 2020. The Prime Minister must, immediately after such a decision is made, notify the President of the European Council that the United Kingdom agrees to the proposed extension.

Section 3(2) applies if the EU Council decides to agree an extension to a date other than 31 January. In this event, the Prime Minister must, within a period of two days beginning with the end of the day on which the European Council’s decision is made, or before the end of 30 October 2019, whichever is sooner, notify the President of the European Council that the United Kingdom agrees to the proposed extension. Note also section 3(3) which states that section 3(2) need not apply if the House of Commons decides NOT to pass a motion approving the extension that has been offered.

Section 3(4) - nothing in this section shall prevent the Prime Minister from agreeing to an extension of the period specified in Article 50(3) of the Treaty on European Union otherwise than in accordance with this section.

Section 4 - Makes an amendment to the European Union (Withdrawal) Act 2018 section 20(4) - concerning Regulations defining "Exit Day"

Section 5 -  deals with Interpretation, commencement, extent and short title.

By section 5(1) - Any term used in this Act which is also defined in section 20 of the European Union (Withdrawal) Act 2018 has the same meaning in this Act as in that Act. For example, the term "withdrawal agreement" means an agreement (whether or not ratified) between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom's withdrawal from the EU.

Schedule - sets out the letter that the Prime Minister would be required to send to the European Council President under section 1(4).

The specific duties imposed by the Act appear to be enforceable either politically via Parliament or, at law, if a court were persuaded that it was necessary to order compliance. In legal principle, Ministers of the Crown can be held in contempt of court - M v Home Office.

The Act goes a considerable way to prevention of a no-deal Brexit but it is not necessarily ruled out. For example, a withdrawal agreement could be reached and be approved under the No 2 Act by the House of Commons BUT cannot be ratified because of the absence of the Act of Parliament required by section 13(1)(d) of the 2018 Act - i.e. An Act of Parliament has been passed which contains provision for the implementation of the withdrawal agreement.

* Diagram *



Section 1(1) – withdrawal agreement concluded

If this condition is met then UK leaves with the negotiated deal BUT this is subject to compliance with section 13 of the EU (Withdrawal) Act 2018.

If this condition is not met then go to section 1(3) and 1(4)

Section 1(2) – no withdrawal agreement

If this condition is met then UK leaves without a deal

If this condition is not met then go to section 1(3) and 1(4)

Section 1(3) and 1(4)

If neither of the conditions is satisfied, then section 1(4) must be complied with no later than 19 October 2019."
PM must request extension to 31 January 2020


EU agrees extension to 31 Jan 2020

PM must accept


EU agrees extension to a date other than 31 Jan 2020

PM must accept

EU refuses an extension


The Act does not address this situation.  By operation of EU law, the UK would leave without a deal on 31 October 2019.

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