The Benn-Burt Bill: Another Article 50 extension?

Hilary Benn, Alistair Burt and other MPs have published the European Union (Withdrawal) (No. 6) Bill. It is part of a legislative strategy to avoid (or at least to delay) the UK’s departure from the European Union in the absence of a ratified withdrawal agreement.

This Insight explains how the Bill seeks to achieve that objective.

Parliament’s role in April in extending Article 50

Back in April 2019, Parliament passed the European Union (Withdrawal) Act 2019. It required the then Prime Minister Theresa May, to seek House of Commons approval for an extension of Article 50 beyond 12 April 2019. She then had to ask the European Council for the extension MPs requested. It further said that if the European Council offered an alternative length of extension, and it was beyond 22 May, the Prime Minister was entitled to accept it. Theresa May asked for an extension until 30 June 2019 but eventually agreed to an extension lasting until 31 October 2019

MPs were only able to pass that legislation last time around because they had ‘taken control of the order paper’. They did this last time by amending a Government motion on Brexit. 

How have MPs ‘taken control of the order paper’ this time? 

MPs took control of the order paper, but by a different route with a vote on Tuesday 3 September. An ‘emergency debate’ under Standing Order No. 24 took place that evening and MPs voted to give precedence on Wednesday 4 September to all the stages of Hilary Benn MP’s Private Member’s Bill. 

What does the Bill do in relation to an extension? 

The Bill is not the same as April’s Cooper-Letwin Bill. It goes further than that Bill in several key respects. 

At first instance, clause 1 of the Bill gives the Government until Saturday 19 October to do either of two things. It could seek and secure the approval of MPs for either: 

(a) a withdrawal agreement, or 

(b) leaving the European Union without a withdrawal agreement 

If by the end of 19 October the House of Commons has done neither of these things, the Prime Minister must then have sought from the European Council an extension of Article 50 for a further four months – until 31 January 2020. 

If at any time after 19 October a withdrawal agreement is approved by the Commons, or the Commons decides the UK should leave without a deal, the Prime Minister can withdraw or modify his Article 50 extension request. 

What happens if the European Council offers an extension? 

If the European Council offers a further extension until 31 January 2020, subsection 3(1) of this Bill compels the Prime Minister to inform the European Council that the UK agrees to the extension. This compulsion was not explicit in the Cooper-Letwin Bill back in April. 

If the European Council offers a further extension, but to a date other than 31 January 2020, under subsections 3(2-3) the Prime Minister has two choices. Either he can: 

(a) agree to that extension, or 

(b) ask the House of Commons (within two calendar days) whether it wishes to approve that extension. 

If the House of Commons “decides not to pass” a specifically-worded motion approving the extension, the Prime Minister then has a free choice whether or not to agree to the extension under subsection 3(4)

What else does the Bill do? 

Clause 2 of the Bill also gives Parliament, and the House of Commons in particular, an ongoing role in scrutinising progress towards the securing of a deal between the UK and the EU. The Government must publish a report on 30 November explaining what progress it has made in this regard. MPs would then, by 5 December, be asked to ‘approve’ that report. 

If MPs were not to approve that report or were to amend the report’s approval motion the Government would then have to set out a further report explaining what it proposes to do in the negotiations. This second report would have to be published by 10 January 2020. This reporting and approval requirement then repeats every 28 days until either a deal has been reached with the EU or the Commons resolves that the requirement should cease. 

Clause 4 of the Bill also changes the arrangements for aligning ‘exit day’ in UK domestic law with the date on which the UK leaves the EU as a matter of EU law under Article 50. If an extension is granted, Ministers would (under this Bill) be legally obliged to make regulations to ensure the two dates remain aligned. At the moment, it is technically a matter for Ministers whether and when to bring forward ‘change of exit day’ regulations in the event of an extension. A failure to bring forward regulations would create legal uncertainty. The UK would still be a Member State of the EU, but domestic law would have repealed the main legislation that ensures the UK complies with European Union law. 

What next for the Bill? 

The Bill will need to complete all its stages in the House of Commons. If this happens on Wednesday 4 September, the Bill could then be introduced in the House of Lords on Thursday 5 September. The House of Lords is a self-regulating chamber, meaning that the ability to restrict time for debate, or the length of Peers’ speeches, is limited. 

The Cooper-Letwin Bill took up two days of debate in the House of Lords even though the Bill’s promoters had originally hoped to complete all stages in one day. 

If the House of Lords amends the Bill in any way (for example, to clarify the drafting, or to change the approach of the Bill) it will have to return to the House of Commons for ‘ping pong’. The Bill can only receive Royal Assent, and become law, once both Houses have agreed the final text.


About the author: Graeme Cowie is a Senior Library Clerk at the House of Commons Library, specialising in Brexit.


Image: ©UK Parliament/Jessica Taylor