EU ‘exit day’ is changed in UK law

The UK was due to leave the EU tomorrow, Friday 29 March, two years after the Prime Minister triggered the start of the EU exit process under Article 50 of the Treaty on European Union (TEU).

Yesterday (Wednesday 27 March), the House of Commons debated and voted to approve a draft Statutory Instrument – the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019to change ‘exit day’.

The draft statutory instrument (SI) was laid before Parliament under paragraph 14 of Schedule 7 to the European Union (Withdrawal) Act 2018 and had to be approved by resolution of each House of Parliament.

Here we look at what happened in the Commons and the Lords and how this affects ‘exit day’.

Why is the SI needed?

This SI was needed to amend Section 20(1) of the European Union (Withdrawal) Act 2018 , which defines ‘exit day’ as 29 March 2019 at 11pm. It puts into UK law, among other things, the day on which the European Communities Act 1972 is repealed and EU legislation becomes retained EU law. This is necessary because of the extension to the Article 50 period agreed by the EU27 on 21 March and adopted as a European Council Decision on 22 March 2019.

The SI does not itself extend the Article 50 process; the extension was agreed between the EU and the UK as a matter of EU and international law. But it ensures the UK statute book reflects the agreed extension of Article 50, and aligns ‘exit day’ with the new date and time on which the EU Treaties cease to apply to the UK in EU and international law.

What’s the new Brexit date? 

There are now two possible dates for Brexit. The Article 50 extension is:

  • until 11pm on 22 May 2019, provided the negotiated Withdrawal Agreement is approved by the House of Commons by 29 March 2019
  • or, until 11pm on 12 April if the Withdrawal Agreement is not approved by 29 March 2019.

A commencement order will have to be laid before the point at which the UK leaves the EU, whichever date that is.

The vote in the Commons

The SI was approved in the Commons by 441 votes to 105 – a majority of 336.

Most of the 105 who voted against are thought to be from the Conservative European Research Group (ERG). The exact membership of this group is not known and estimates vary between 60-100. In an interview with Conservative Home in July 2017, Suella Fernandes (now Braverman) MP said the group had about 100 members. But In February 2018 a letter was sent to the Prime Minister on behalf of the ERG which was signed by 62 Conservative MPs.

All DUP Members voted against the SI.

The vote in the Lords

Because of the time-critical nature of the legislation, Lords’ Standing Order 72 was not applied. The Standing Order states that an approval motion for an affirmative SI cannot be moved until the Joint Committee on Statutory Instruments (JCSI) has laid its report on the SI before the House. So in this instance, the JCSI did not report on the SI.

The House of Lords also considered the ‘exit day’ SI on 27 March 2019. Baroness Hayter sought to move a regret motion (c1846) at the end of the motion to approve, adding:

“but this House, whilst recognising the necessity of the Regulations, regrets the manner in which Her Majesty’s Government have conducted withdrawal negotiations with the European Union which has resulted in widespread uncertainty as to when the United Kingdom will leave and about the status of European Union citizens, as well as undermining business confidence; and calls on Her Majesty’s Government to pursue without hesitation any course of action in relation to those negotiations which is approved by a resolution of the House of Commons”.

Lord Keen, for the Government, begged to move that the instrument be approved and asked Peers to:

“look carefully at the precise terms of the Motion that is to be moved by the noble Baroness, Lady Hayter of Kentish Town. We cannot have a situation in which the Executive are purportedly bound to any Motion that has not yet passed in the Commons. That way lies chaos, which is the one thing we do not need at this point in time.”

Lady Hayter said her amendment had, “provided an opportunity for the House to express its concern about the chaotic way we got here and where the blame lies.” She withdrew it and the SI was agreed.

Further reading

What is “exit day”? Dispelling misconceptions about the extension of Article 50, House of Commons Library, 19 March 2019.

Brexit delayed: the European Council Conclusions on extending Article 50, House of Commons Library, 22 March 2019.

Extending Article 50: could Brexit be delayed?, House of Commons Library.

Extending the Article 50 Period: FAQs, House of Commons Library.

For information on the House of Lords process, see House of Lords Library Note, Extending Article 50: European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019, 26 March 2019.

Vaughne Miller is head of the International Affairs and Defence research section at the House of Commons Library.

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