European Union (Withdrawal) (No. 5) Bill 2017-19

Context

Yvette Cooper presented the European Union (Withdrawal) (No. 5) Bill (No. 5 Bill) (a Private Member’s bill) on Tuesday 2 April 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 12 April 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 12 April 2019 if that is what MPs want and the European Council is prepared to agree to it.

Previous Bills and time for debate

Three previous Bills have been presented by the same group of cross-party MPs earlier this year. The Library produced briefing papers on all three 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
• European Union (Withdrawal) (No. 4) Bill 2017-19, 19/8502, 19 February 2019

None of these Bills were formally 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]

The prospect of time being made for the No. 4 Bill led to concessions being made by the Prime Minister. She agreed to hold two legally non-binding votes on “leaving without a deal” and on extension. Those debates took place on 13 and 14 March.[2] Acting on the resolutions eventually adopted, the PM requested an extension to no later than 30 June 2019. This led to the decision of the European Council of 22 March, which (given the failure of the House of Commons to approve the Withdrawal Agreement last week) served to extend Article 50 from 29 March to 12 April 2019.[3]

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. Such an attempt is contemplated in a Business of the House motion (in the name of Oliver Letwin) for consideration on Wednesday 3 April 2019.

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. 5 Bill do?

The No. 5 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.

The day after the day on which this Bill gets Royal Assent, the Prime Minister would have to table a motion. This motion must seek Commons approval for a proposal that the UK asks the European Council for an extension to Article 50. The motion must set out the Prime Minister’s preferred extension date.

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.[4] 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 resources on extending Article 50

The Library has several key resources on the extension of Article 50. See, among others:

• Extending Article 50: could Brexit be delayed?[5]
• Extending the Article 50 Period: FAQs;[6]
• Extending Article 50 and European Parliament elections;[7]
• EU ‘exit day’ is changed in UK law;[8] and
• What is “exit day”? Dispelling misconceptions about the extension of Article 50.[9]

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

[2] Commons Library Insights, Yvette Cooper’s Private Member’s Bill explained, 19 February 2019 and The Brexit timetable: One promise. Two weeks. Three key votes, 1 March 2019.

[3] European Council Decision taken in agreement with the United Kingdom, extending the period under Article 50(3)TEU, EUCO XT 20006/19, 22 March 2019

[4] 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

[5] Extending Article 50: could Brexit be delayed?, 19/8496, 21 March 2019

[6] Extending the Article 50 Period: FAQs, 21 March 2019

[7] Extending Article 50 and European Parliament elections, 19 February 2019

[8] EU ‘exit day’ is changed in UK law, 28 March 2019

[9] What is “exit day”? Dispelling misconceptions about the extension of Article 50, 19 March 2019