Brexit: House of Commons agrees SO24 motion to take control of time for no-deal Private Members’ Bill

Following an emergency debate in the House of Commons (HoC) on 3 September 2019, the HoC agreed a motion, by 328 votes to 301, which sets the procedure and provides time for the HoC stages of the European Union (Withdrawal) (No. 6) Bill (EUWB6), and a similar Bill in the next parliamentary session under certain circumstances.

The EUWB6 is a cross-party Private Members’ Bill which, as originally drafted, aims to ensure that the UK does not leave the EU without a deal (a withdrawal agreement and transition period) on 31 October 2019 unless Parliament consents. If a deal is not concluded by 19 October 2019, and if Parliament opposes a no-deal exit, the EUWB6 requires the Prime Minister to request a third extension to the Article 50 period until 31 January 2020.

The motion was submitted under Standing Order no. 24. When passed, the motion became a standing order, which:

  • Gives precedence on 4 September 2019 for the HoC stages of the EUWB6. (Government business would otherwise take precedence.)
  • Reserves further time on a subsequent day for the HoC to consider any Lords amendments to the EUWB6.
  • Provides that the HoC will not adjourn at the sittings on 9, 10 and 11 September until the Speaker reports the Royal Assent to any Act agreed upon by both Houses. (This not only covers the EUWB6, but also other Acts.)
  • Sets out the rules and reserves time in the next session of Parliament for a similar Bill if the EUWB6 passes third reading but does not receive Royal Assent (in which case the EUWB6 will fall at the end of the 2017-19 session).

The government defeat on this standing order is linked to Parliament’s concerns that the government is unlikely to reach a revised deal at the European Council meeting on 17 and 18 October 2019. Supporters of the motion noted that the government had not produced any indication of a viable proposal to replace the backstop (to which the government objects) with any alternative that could prove acceptable to the EU.

The first sitting week of September 2019 was also widely seen as Parliament’s last chance to block a no-deal exit on 31 October 2019, following the Prime Minister’s move to prorogue Parliament during the second sitting week for up to five weeks (see Legal update, Brexit: Queen approves Order in Council providing for prorogation of 2017-19 parliamentary session and Practice note, Brexit: implications of no deal).

Brexit: Scottish Court of Session rejects judicial review challenge to prorogation of Parliament

On 4 September 2019, the Scottish Court of Session refused a petition for judicial review which challenged the lawfulness of the Order in Council of 28 August 2019 (Order in Council) which approved the Prime Minister’s prorogation request, and of the Prime Minister’s advice to prorogue the 2017-19 parliamentary session. Lord Doherty ruled that the issue raised was not justiciable, as the advice given in relation to the prorogation decision was a matter involving high policy and political judgment which cannot be measured against legal standards.

The case, one of three legal challenges to prorogation, was brought by a group of cross-party MPs, who sought a declarator that it is ultra vires and unconstitutional for any minister of the Crown (including the Prime Minister) to purport to advise the Queen to prorogue Parliament with a view to denying further parliamentary consideration before exit day of the UK’s withdrawal from the EU (see Legal update, Brexit: proposed application for judicial review challenge to prorogation of Parliament before exit day). During prorogation, Parliament does not sit, so cannot attempt to stop the UK from leaving the EU with no deal (see Article, Could Parliament stop a no-deal Brexit? and Brexit materials: No-deal Brexit).

The original petition was subsequently adjusted to request the court, in addition to the declarator referred to above, to order reduction of the Order in Council, and to interdict government ministers from acting upon that Order in Council. The petition challenged the lawfulness of the Order in Council, and the lawfulness of the Prime Minister’s advice to prorogue given to the Queen (see Legal update, Brexit: Queen approves Order in Council providing for prorogation of 2017-19 parliamentary session).

In making his ruling, Lord Doherty did not accept that the prorogation contravenes the rule of law. He said: “The power to prorogue is a prerogative power and the Prime Minister had the vires to advise the sovereign as to its exercise. The executive is accountable to Parliament and the electorate for the advice to prorogue,” adding that, ” It is for Parliament to decide when it will sit and it routinely does so. It is not for the courts to devise further restraints on prorogation which go beyond the limits which Parliament has chosen to provide.”

Reuters has reported that Joanna Cherry, a Scottish National Party MP who led the challenge, said that the petitioners would seek to appeal the decision.

Brexit: no-deal Private Members’ Bill passes House of Commons stages

The European Union (Withdrawal) (No. 6) Bill 2017-19 (EUWB6) passed all its House of Commons (HoC) stages on 4 September 2019. The House of Lords stages of the EUWB6 are expected to take place on 5 and 6 September 2019. If the Lords amend the EUWB6, it is expected to return to the HoC for consideration of Lords amendments on 9 September 2019. To view the EUWB6 on Westlaw, see Westlaw: European Union (Withdrawal) (No. 6) Bill 2017-19.

The UK will leave the EU under Article 50 of the Treaty on European Union on 31 October 2019 with no deal (no withdrawal agreement and no transition period) if, by then, the withdrawal agreement is not ratified, there is no further extension, and the UK does not revoke its Article 50 notice.

If enacted in the form introduced to the House of Lords, the EUWB6 would:

  • Require the Prime Minister to request a third extension to the Article 50 period until 11.00 pm on 31 January 2020 unless, by 19 October 2019, the government has obtained Parliament’s consent either to a withdrawal agreement or to a no-deal exit.
  • Prescribe the form of letter for the Prime Minister to send to the President of the European Council. The template letter proposes that the extension should end earlier than 31 January 2020 if the parties are able to ratify the agreement before then.
  • Enable the Prime Minister to modify or withdraw the extension request if the government has obtained Parliament’s consent either to a withdrawal agreement or to a no-deal exit before the end of 30 October 2019.

Any extension requested by the Prime Minister requires the unanimous consent of the EU27 leaders in the European Council. The EUWB6 would compel the Prime Minister to accept:

  • A European Council decision to agree to an extension to 11.00 pm on 31 January 2020.
  • A European Council decision that proposes a different end date, unless the Prime Minister can obtain the consent of the HoC (within a set deadline) to reject the proposal.

The EUWB6 would also amend the European Union (Withdrawal) Act 2018 (EUWA) to impose an express obligation on the government to make regulations that amend the EUWA definition of exit day if, for example, there is a third extension to the Article 50 period. Failure to amend this definition following any agreement to a third extension would not prevent the UK from leaving the EU, but would cause domestic legal confusion (see Practice note, Brexit: extension and exit day: Exit day definition in EUWA).

 

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