On Monday, the European Union (Withdrawal) (No. 5) Bill, aka the Cooper-Letwin Bill, received Royal Assent as the European Union (Withdrawal) Act 2019. Its purpose is to enable the Commons to vote on “no deal” or an extension to Article 50 if the deal is not passed.
S.1 (Duties in connection with Article 50 extension) requires that–
“(1) On the day on which this Act receives Royal Assent or on the day after that day, a Minister of the Crown must move a motion in the House of Commons in the form set out in subsection (2).
(2) The form of the motion set out in this subsection is –
‘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 […].’
(3) A motion in the form set out in subsection (2) must include a date in the position indicated by the brackets in that subsection’.”
Late on Wednesday evening, the EU Council agreed that the UK should remain as a member state of the EU until 31 October, with the option to leave earlier if the Prime Minister can secure Commons support for the Withdrawal Agreement. Under the extension, the UK will need to hold elections for the European Parliament on 23 May if the Commons does not agree to the Withdrawal Agreement by then – or otherwise leave by 1 June. In a statement issued at one minute to midnight, President Donald Tusk said:
Tonight the European Council decided to grant the United Kingdom a flexible extension of the Article 50 period until the 31st of October. This means an additional 6 months for the UK. During this time, the course of action will be entirely in the UK’s hands. It can still ratify the Withdrawal Agreement, in which case the extension will be terminated. It can also reconsider the whole Brexit strategy. That might lead to changes in the Political Declaration, but not in the Withdrawal Agreement. Until the end of this period, the UK will also have the possibility to revoke Article 50 and cancel Brexit altogether.
The UK will continue its sincere cooperation as a full member state with all its rights, and as a close friend and trusted ally in the future.
Let me finish with a message to our British friends: this extension is as flexible as I expected, and a little bit shorter than I expected, but it’s still enough to find the best possible solution. Please do not waste this time.
[Update: At 4:15p.m.on 11th April 2019, the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019 were laid before Parliament. The Regulations amend section 20 of the European Union (Withdrawal) Act 2018 (interpretation) and redefine “exit day” as 31 October 2019 at 11.00 p.m. (i.e. midnight in mainland Europe). A detailed Explanatory Memorandum accompanies the Regulations.]
“the UK will also have the possibility to revoke Article 50 and cancel Brexit altogether”.
It will. Provided, that is, the UK’s own constitutional requirements for doing this are satisfied. I don’t think they are. I think it is plain, from Miller, that an enabling Act would be needed. The PM seemed to have forgotten that proviso, so I came back from Bucharest on Monda to remind her.
Yesterday, I was at the Royal Courts of Justice, seeking an emergency injunction to restrain the Prime Minister, until further order, from revoking or purporting to revoke the Article 50 notice already given unless she had statutory authority to do so. In Court 37, William-Davis J suggested I ought to seek that outcome as interim relief in the context of a judicial review of the apparent doctrine that the Government can revoke the Article 50 notice without an enabling Act of Parliament. He said I’d better hurry. I didn’t. I went back to my hotel and spent the evening drafting my JR claim, with embedded application for the injunction I was incorrect to make a free-standing application for in Court 37.
At about 6:30 this morning, I learnt that the risk of an unlawful purported revocation of the Article 50 notice had subsided, until Samhain, or Reformation Day, or Hallowe’en. No hurry now. I’m on my way home, enjoying the sunshine. Panic over – until the next time.
My misconceived free-standing application for an injunction is published within my personal web-presence. I’m going to take a few weeks to improve the draft of the JR that I put together yesterday evening, ready for this morning, only to discover that the urgency had evaporated overnight.