European Union (Withdrawal) (No. 4) Bill 2017-19

Context

Yvette Cooper presented the European Union (Withdrawal) (No. 4) Bill (No. 4 Bill) (a Private Member’s bill) on Wednesday 13 February 2019.

This Bill would create a mechanism by which the House of Commons exerts greater control over the process of extending Article 50(3) TEU’s two-year negotiating period.

By the automatic operation of EU law, the UK leaves the EU on 29 March 2019 regardless of whether a deal has been ratified. The purpose of the Bill is to reduce the risk of the UK leaving the EU without a deal, or at least to delay that outcome beyond 29 March 2019 if that is what MPs want and the European Council is prepared to agree to it.

Previous Bills and time for debate

Two previous Bills have been presented by the same group of cross-party MPs earlier this year. The Library produced briefing papers on both of those Bills:

• European Union (Withdrawal) (No. 2) Bill 2017-19, 19/8476, 18 January 2019
• European Union (Withdrawal) (No. 3) Bill 2017-19, 19/8480, 23 January 2019

Neither of these Bills were debated in the Commons. An unsuccessful attempt was made by Yvette Cooper on Tuesday 29 January to secure time for debate for the No. 3 Bill on Tuesday 5 February. Her amendment (to a Government motion under section 13 of the EU (Withdrawal) Act 2018) was defeated by 321 votes to 298.[1]

Being a presentation Private Member’s bill, there are limited opportunities for this proposal to be debated (and thus to become law). This is because Government business normally takes precedence under the Standing Orders of the House of Commons.

If, however, MPs were to agree to adapt the rules of the House, time might be secured for a Second Reading and subsequent stages for this Bill in the Commons. Even if it completed its Commons Stages, the Bill would still have to complete its passage through the Lords. It effectively has a veto power over this Bill given the proposal’s time-sensitivity.

What would the No. 4 Bill do?

The No. 4 Bill would restrict the Prime Minister’s discretion about whether and when to seek an extension to the two-year negotiating period under Article 50(3) TEU.

A new statutory deadline – Wednesday 13 March 2019

At first instance, the Bill gives the Government until the House rises on Tuesday 12 March 2019 to secure a Commons approval resolution for a deal.[2] Until then, the Prime Minister would retain full discretion about whether, when and until when to seek an extension.

The Government to choose between two motions

Thereafter, the Government must choose between one of two courses of action.

Firstly, it could seek MPs’ explicit consent for leaving the EU without a deal. To do this, it must table a motion on Wednesday 13 March to be moved for debate on Thursday 14 March. If this motion is approved without amendment, nothing further would happen under this Bill. The Prime Minister would retain full discretion about whether and when to bring a deal back and/or to seek to extend Article 50 before the UK leaves the EU by automatic operation of EU law on 29 March 2019 at 11pm GMT.

If, however, the motion is amended or rejected, or the Prime Minister chooses not to ask the House to approve a “no-deal exit”, she must table a different type of motion. This must seek Commons approval for a proposal to ask the European Council for an extension to Article 50. The motion must set out the Prime Minister’s preferred extension date. If the Prime Minister goes straight to this motion, it must be moved for debate on Thursday 14 March. If she first seeks MPs’ approval for no-deal, however, this second debate would take place on Monday 18 March.

An amendable, legally binding, motion to seek an Article 50 extension

Should the Commons approve a resolution for the Prime Minister to seek an extension to Article 50, she would then be required, legally, to seek that extension. The Commons would be able, if it wished, to insist that the Prime Minister seeks an extension to a different date from the one she originally proposed.

Although resolutions of the House of Commons typically carry significant political weight, they do not normally have legally enforceable consequences.[3] A resolution adopted under the provisions of this Bill would therefore have a different status from an ordinary resolution of the House of Commons. The Prime Minister would be in clear breach of domestic law if she simply refused to ask for the extension MPs had instructed her to seek.

A role for the Commons if the European Council proposes an alternative date

The Act also provides a further role for the Commons in the event that the European Council does not agree to the Prime Minister’s request but proposes an alternative date. In those circumstances, the Prime Minister would have to seek further Commons approval before agreeing to that revised date and thereby giving effect to it in EU law.

Why does the Bill only let Parliament instruct the Prime Minister to “seek” an extension?

The two-year period under Article 50(3) cannot be extended unilaterally. Even if the UK “requests” an extension, it can only happen by way of a “unanimous decision” of the European Council. Any extension, and any new date of withdrawal, would need to be agreed to by the Governments of all 27 other Member States of the EU.

Library paper on extending Article 50

The Library recently published a briefing, Extending Article 50: could Brexit be delayed? which explores in detail:

• the process in EU law for extending the two-year period;
• the views of the UK Government, Opposition parties and the EU;
• the scenarios in which an extension might be sought;
• how long an extension might be needed in those scenarios;
• the implications of extension for the European Parliament and its May elections.[4]

[1]     HC Deb 29 January 2019 Vol 653 cc770-774

[2]     i.e. a resolution under s. 13(1)(b) of the European Union (Withdrawal) Act 2018 approving the negotiated withdrawal agreement and the framework for the future relationship

[3]     Notable exceptions to this include resolutions made under the Constitutional Reform and Governance Act 2010 (in relation to the ratification of treaties), the Fixed-term Parliaments Act 2011 (in relation to early dissolution of a Parliament), and the EU (Withdrawal) Act 2018 (in relation to the ratification of a withdrawal agreement). See also Public Administration and Constitutional Affairs Committee, Status of Resolutions of the House of Commons, HC1587, 7 January 2019

[4]     Commons Library Briefing Paper, Extending Article 50: could Brexit be delayed?, 19/8496, 12 February 2019