The Cooper Act and Article 50 – a new role for Parliament?

Graeme Cowie

On the evening of Monday 8 April, Royal Assent was given to the European Union (Withdrawal) (No. 5) Bill. This was a Private Member’s Bill in the name of Yvette Cooper, which seeks to further extend Article 50, and is now an Act of Parliament. But what does it actually mean for the UK, its relationship with the EU, and the talks between the UK Government and the European Council about a further extension to Article 50?

What does the Act do?

Section 1 of the 2019 Act places a legal obligation on the Government. It requires a Minister to move a motion in the House of Commons. This motion must take the following form:

“That this House agrees for the purposes of section 1 of the European Union (Withdrawal) Act 2019 to the Prime Minister seeking an extension of the period specified in Article 50(3) of the Treaty on European Union to a period ending on […]”

The Minister must substitute a specific date for the square brackets.

There will then be a debate in the House of Commons on that motion. Amendments may be tabled to the motion. If selected by the Speaker, an amendment could (among other things) propose to change the date in the motion.

If the House of Commons approves a motion for the Prime Minister seeking an extension, she would then be under a legal obligation to ask the European Council for that extension. She would be breaching domestic law if she refused to follow the direction of MPs.

What has the Prime Minister done already?

On Friday 5 April, the Prime Minister wrote to Donald Tusk asking for a further extension of Article 50 until 30 June 2019. She has also tabled a motion under the terms of the European Union (Withdrawal) Act 2019 seeking (retrospective) Commons approval for that course of action. That motion will be debated today (Tuesday 9 April).

What happens if MPs approve the Prime Minister’s motion?

If MPs approve the Prime Minister’s motion without amendment, there would be no immediate legal consequences. This is because she would already have met her obligation under the 2019 Act.

What happens if MPs amend the Prime Minister’s motion?

If, on the other hand, MPs amend the Prime Minister’s motion, she would then be under a domestic legal obligation to make a revised request to the European Council.

Whether any amendments are selected will be a matter for the Speaker. Only two amendments appeared on today’s Order paper.

Amendment (a) in the name of Ian Blackford calls for the Prime Minister to seek an extension ending “no earlier than 30 June 2019”. If approved, it would appear that the Prime Minister has already satisfied this requirement by seeking an extension ending “on 30 June 2019”.

Amendment (b) in the name of Peter Bone calls for an extension to Monday 15 April. If approved the Prime Minister would be expected to make that (revised) request.

Attention shifts to the Council

The Act only governs what the Prime Minister must ask for in her communications to the European Council. The UK cannot unilaterally extend Article 50 and needs the agreement of all 27 other Member States.

Lord Pannick’s amendment 7 (moved in the House of Lords) made sure that, if the European Council offers an extension that ends on or after 22 May 2019, the Prime Minister could, unilaterally, agree to it (see section 1(6-7) of the Act). There would be no need for further Parliamentary approval. An issue might arise were the Council to offer a shorter extension than to the 22 May.

What if the Prime Minister and the Council cannot agree?

It is possible that the European Council and the Prime Minister might be unable to agree how long a further extension should be. In the absence of agreement between the two, the legal default position in EU law is that the UK leaves the EU on 12 April 2019 at 11pm BST without a deal.

Were the Council come up with a “counter-proposal”, the original Bill would have required the Prime Minister to put that proposal back to the House of Commons for further approval (clause 1(6-7). If the Commons had approved the Council’s offer, the Prime Minister would then be legally obliged to seek it (and therefore effectively to agree to it).

However, the House of Lords (with amendment 5 in the name of Lord Goldsmith) removed the requirement for the Prime Minister to “revert” to MPs in the event a counter-proposal was made by the Council. The combined effect of Lord Goldsmith’s and Lord Pannick’s amendments was therefore to preserve (for the most part) the Prime Minister’s discretion in the extension of Article 50. It allows her, in principle:

(a) not to agree to a counter-proposal offered by the Council; and/or

(b) to agree to any extension beyond 21 May 2019 even if it is contrary to the length of extension MPs initially said she should ask for.

What about “exit day” in domestic law?

The last time there was an extension of Article 50, the Government had to bring forward secondary legislation – a statutory instrument (SI) – to deal with its domestic consequences. That SI changed the definition of “exit day” in domestic law from 29 March to 12 April. That SI had to be approved by both Houses of Parliament. Had it not passed, there might have been uncertainty in domestic law as to whether the UK was still compliant with its obligations as an EU Member State.

This process will not have to happen in the event of a further extension. The Government successfully amended the Bill in the Commons last week to include what is now section 2. That provision removes the requirement for “affirmative procedure” to be used in order to change exit day; instead the regulations will be made “subject to annulment” by either House.