Brexit: Further Recent Developments

A debate on “exiting the EU” is scheduled to take place in the Lords on 25 March, although the exact wording of the motion has not been published. Under section 13 of the European Union (Withdrawal) Act 2018 (the EUWA), the Government must hold a take-note debate in the Lords by 26 March on its proposed next steps following its defeat in the second ‘meaningful vote’ in the Commons on 12 March. A debate must also take place in the Commons by 25 March; this will be on an amendable motion.

Having rejected the Government’s deal for a second time, the Commons voted on 13 March to reject leaving the EU with no deal, and on 14 March to agree that the Government should seek to agree with the EU an extension of the article 50 period. It was widely speculated that the Government would hold a third ‘meaningful vote’ by 20 March, but on 18 March the Commons Speaker indicated that “a demonstrable change to the proposition would be required” for this not to fall foul of the convention that the Commons should not consider motions that are the same or substantially the same as a question which has already been decided in the current session.

On 20 March, Theresa May wrote to Donald Tusk, President of the European Council, explaining this had made it “impossible in practice” to hold a third ‘meaningful vote’ before the European Council on 21 March, but it remained her intention to bring the deal back to the Commons “as soon as possible”. She informed the European Council that the UK was seeking an extension to the article 50 period until 30 June 2019. The leaders of the EU27 member states will consider this request at a meeting on 21 March. An extension can only be granted if they agree unanimously. President Tusk indicated on 20 March that they would agree only if the Government had won a ‘meaningful vote’ in the Commons. The EU27 may not take a final decision until next week, either by written procedure or in an additional European Council meeting. The default legal position remains that unless a withdrawal agreement is ratified by 29 March 2019, or an extension to article 50 is agreed, or the UK revokes its article 50 notification, then the UK will leave the EU without a deal on 29 March 2019.

In preparation for the Lords debate, and in light of these recent developments, this briefing (which was published before the European Council on 21 March) covers:

• Section 13 of the EUWA—the steps that must be fulfilled as a domestic legal requirement in order for the UK to ratify a withdrawal agreement; the steps the Government must take after losing a ‘meaningful vote’; and the role of the House of Lords.
• The Speaker’s statement of 18 March and the impact of this on the prospects for the holding of a third ‘meaningful vote’.
• The UK’s request for an extension of article 50; the legal processes that apply to this under EU and domestic law, including the role of the House of Lords; and the implications of the timing of the European Parliament elections scheduled for 23–26 May on the possible duration of any extension.

Post-Publication Update:

After this briefing was published, the European Council agreed to an extension of the article 50 period until 22 May 2019, provided the withdrawal agreement is approved by the House of Commons next week (week commencing 25 March 2019). If the withdrawal agreement is not approved by the House of Commons next week, the European Council agreed to an extension until 12 April 2019, and stated its expectation that the UK would indicate a way forward before this date for consideration by the European Council.

For further information, see:

• European Council, ‘European Council (Art 50) Conclusions’, 21 March 2019
• European Council, ‘Remarks by President Donald Tusk after the European Council Meeting (Art 50)’, 21 March 2019
• Prime Minister’s Office, ‘PM Statement at the EU Council’, 21 March 2019