On 13 February, Yvette Cooper presented a Private Member’s Bill, with cross-party backbench support. Named the European Union (Withdrawal) (No. 4) Bill, it provides a role for MPs in the process of “extending” Article 50. This Insight explains what this proposed legislation would do and how it fits into the broader Brexit process.
What role does Parliament have in extending Article 50?
Although it is not explicitly stated in UK legislation, Parliament is not thought to have a formal role in deciding whether the Article 50 process should be extended as a matter of EU law. Extension is ultimately a question that is resolved by the UK Government acting on the UK’s behalf, negotiating with the European Union. Parliament authorised the Article 50 negotiations by passing the original EU (Notification of Withdrawal) Act back in March 2017.
At the moment, there is therefore no legally binding mechanism by which MPs can compel the Prime Minister to ask the EU for an extension to Article 50. The Government has repeatedly stated that an extension is not Government policy and that in any case it does not (in itself) “rule out no deal”.
Although Parliament has no formal role in a request to extend Article 50, it does have a role in dealing with the consequences if an extension has been agreed. Parliament has already made arrangements for life outside the EU in the EU (Withdrawal) Act 2018. If the UK Government and European Council agreed to extend Article 50, both the Commons and the Lords would need to approve regulations to change ‘exit day’ in domestic law, to reflect the new agreed date. This would ensure that the UK upheld its obligations as a Member State during any extension.
What role would Yvette Cooper’s Bill give to Parliament?
Yvette Cooper’s Bill is intended to mitigate the risk of the UK leaving “without a deal” on the 29 March. It gives the Government until 13 March to secure an “approval resolution” (a vote to accept the deal), from the House of Commons. If the Government does not manage this, MPs will then have a greater say over what the Prime Minister does next.
The Government would be allowed to choose between one of two courses of action. Under “track one” the Prime Minister can first ask the Commons to approve leaving the EU without a deal. If the Commons agrees, the legal default is that the UK leaves the EU without a deal on 29 March 2019.
If the Commons rejects or amends that motion, or the Prime Minister decides against seeking approval for “no deal”, we move on to “track two”. The Prime Minister must bring forward a proposal to the Commons for extending Article 50. The motion must say how long an extension the Prime Minister wants to ask for, and ask the Commons to “approve” her extension request plan.
MPs would have the opportunity to amend the date in the Prime Minister’s motion. If any resolution were to be adopted by the Commons, it would legally compel the Prime Minister to ask the European Council for an extension to the date specified by MPs.
Nothing in this Bill would prevent the Prime Minister from seeking an Article 50 extension if MPs did not demand her to do so. If the Government secured an approval motion for a deal at any time on or after 13 March but before 29 March, the Bill (and any instruction given by Parliament under it) would also cease to have effect. This would return full legal discretion to the Prime Minister as to whether and until when to seek an extension (e.g. to provide more time to pass the Withdrawal Agreement Bill and to ratify the treaty).
What if the European Council says no?
It is possible that the Council might reject a request to extend Article 50, or – following discussions with the UK Government – propose an alternative, mutually agreeable, date.
If this happens, the Cooper Bill expects the Prime Minister to come back to the Commons to seek approval for that extension. Although it is not explicitly stated in the Bill, this consent would presumably have to come before the Prime Minister formally signed-off at EU level the new date of exit.
The Bill foresees that the Commons might disagree with this compromise date and ask for another one. If this happened, the Prime Minister would (again) legally be obliged to go back and seek it.
Will this Bill be debated?
As a Presentation Private Member’s Bill, this legislation would not normally be allocated time for debate in the Commons. However, Yvette Cooper has indicated that, if and when the Prime Minister comes back with another “next steps” debate on 27 February, she and others will use that debate to try to secure time for her Bill.
On 29 January, Yvette Cooper attempted (unsuccessfully) to do something similar for the earlier version of this Bill. She moved an amendment to the Government’s “neutral motion” which would have given the Bill precedence over Government Business for one sitting day. The proposal was defeated by 321 votes to 298.
European Union (Withdrawal) (No. 4) Bill 2017-19, House of Commons Library.
Graeme Cowie is a Senior Library Clerk at the House of Commons Library, specialising in Brexit.
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