Wednesday, 10 April 2019

European Union (Withdrawal) Act 2019

Jane Lambert

In my March Brexit Briefing, I wrote:
"Had all gone according to plan, this would have been my first post-exit day Brexit Briefing. However, the UK is still a full member of the European Union at least until 12 April 2019 on the terms that I mentioned in Extension of Art 30 Notice Period 27 March 2019. What happens after that will depend on the European Council meeting which shall take place on 10 April 2019, the current discussions between the Prime Minister and the Leader of the Opposition and the fate of the European Union (Withdrawal) (No 5) Bill in the House of Lords."
At least one of those uncertainties has been removed as the Bill cleared the Lords almost as quickly as it cleared the Commons. It has received royal assent and is now law.

The new statute, which is known as the European Union (Withdrawal) Act 2019, consists of three sections:
  1. Duties in connection with Art 50 extension
  2. Procedure for ensuring domestic legislation matches Art 50 extension
  3. Interpretation, commencement, extent and short title.
S.1 (1) requires a Minister of the Crown to move the following motion in the House of Commons immediately after the Act receives royal assent:
“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 […]” 
If a motion in that form is passed without amendment, the PM must seek an extension to the date in square brackets.  The Minister can accept a different period provided it ends not earlier than 22 May 2019. In that regard, s.1 (7) provides:
"In deciding for the purposes of subsection (6) whether an extension cannot end earlier than 22 May 2019, the earlier ending of the extension as a result of the entry into force of the withdrawal agreement (as provided for in Article 50(3) of the Treaty on European Union) is to be ignored."
S.20 (1) of the European Union (Withdrawal) Act 2018 had defined "exit day" (the date upon which the UK leaves the EU) as "29 March 2019 at 11.00 p.m" subject to s.20 (2) to (5).  Those subsections set out a procedure for amending the definition of "exit day" by statutory instrument,  However, para 14 of Sched 7 to the 2018 Act had provided:
"A statutory instrument containing regulations under section 20( 4) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament."
S.2 of the 2019 Act amends paragraph 14 by removing the words from "may" to "each" and substitutes the words "is subject to annulment in pursuance of a resolution of either”.    The paragraph now reads:
"A statutory instrument containing regulations under section 20 (4) is subject to annulment in pursuance of a resolution of either House of Parliament."
S.3 (1) provides for the Act to come into force as soon as it receives royal assent.

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