IP After Brexit: April 2019

Thursday 11 April 2019

European Council Decision of 11 April 2019 extending the Period under art 50 (3) of the Treaty of European Union to 31 Oct 2019

Donald Tusk

Licence Creative Commons Attribution-Share Alike 2.0

Another of the uncertainties that I mentioned in my March Brexit Briefing was the outcome of the special Council meeting of 10 April 2019 which President Tusk called on 29 March 2019 after the draft withdrawal agreement of 14 Nov 2018 was rejected by the House of Commons for the third time. The reason for the meeting was that the United Kingdom was due to leave the European Union at 23:00 on 12 April 2019.

Even before she was obliged to do so by s.1 of the European Union (Withdrawal) Act 2019, the Prime Minister applied for an extension of the notification of the period provided by art 50 (3) of the Treaty of European Union by a letter dated 5 April 2019. The European Council referred to that letter in paragraph (8) of the recitals to its decision of 11 April 2019 extending that notice period to 31 Oct 2019 at the latest.

The decision consists of 14 paragraphs of recitals and 2 articles Art 1 extends the notice period from 12 April 2019 to 31 Oct 2019. Art 2 inserts the condition of holding elections to the Europen Parliament on 22 May 2019 warning:

"This decision shall cease to apply on 31 May 2019 in the event that the United Kingdom has not held elections to the European Parliament in accordance with applicable Union law and has not ratified the Withdrawal Agreement by 22 May 2019."

As the Council also recited in paragraph (9):

"...... under Article 50(3) TEU, the Withdrawal Agreement may enter into force on an earlier date, should the Parties complete their respective ratification procedures before 31 October 2019. Consequently, the withdrawal should take place on the first day of the month following the completion of the ratification procedures or on 1 November 2019, whichever is the earliest. "

As several MPs had urged the British government to disrupt the EU's business if it were granted a long adjournment paragraph (10) of the recitals noted:

"This further extension cannot be allowed to undermine the regular functioning of the Union and its institutions. Furthermore, it will have the consequence that the United Kingdom will remain a Member State until the new withdrawal date, with full rights and obligations in accordance with Article 50 TEU, and that the United Kingdom has a right to revoke its notification at any time. If the United Kingdom is still a Member State on 23-26 May 2019, and if it has not ratified the Withdrawal Agreement by 22 May 2019, it will be under an obligation to hold the elections to the European Parliament in accordance with Union law. In the event that those elections do not take place in the United Kingdom, the extension should cease on 31 May 2019. The European Council takes note of the commitment by the United Kingdom to act in a constructive and responsible manner throughout the extension period in accordance with the duty of sincere cooperation, and expects the United Kingdom to fulfil this commitment and Treaty obligation in a manner that reflects its situation as a withdrawing Member State. To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and shall refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union."

The decision also made clear in paragraph (12) of the recitals that the withdrawal agreement could not be renegotiated:

"This extension excludes any re-opening of the Withdrawal Agreement. Any unilateral commitment, statement or other act by the United Kingdom should be compatible with the letter and the spirit of the Withdrawal Agreement, and must not hamper its implementation. Such an extension cannot be used to start negotiations on the future relationship."

Anyone wishing to discuss this article or brexit generally may call me on 020 7404n 5252 during office hours or send me a message through my contact page.

Wednesday 10 April 2019

European Union (Withdrawal) Act 2019

Our cross party Bill now has Royal Assent. Parliament has voted tonight against the damage & chaos that No Deal would cause for jobs, manufacturing, medicine supplies, policing & security. pic.twitter.com/WNn1TazsJw
— Yvette Cooper (@YvetteCooperMP) April 8, 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:

Duties in connection with Art 50 extension
Procedure for ensuring domestic legislation matches Art 50 extension
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.

Anyone wishing to discuss this article or brexit generally should call me on 020 7404 5252 during office hours or send me a message through my contact form.

Thursday 4 April 2019

Brexit Briefing March 2019

Standard YouTube Licence

Jane Lambert

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.

Since the last Brexit Briefing, there has been a massive demonstration for a second referendum on the streets of London (see Brexit march: Million joined Brexit protest, organisers say 23 March 2019 BBC website) and 6,061,092 individuals appear to have signed an online petition to revoke Mrs May's notification of intent to withdraw from the EU which she served on 29 March 2017. President Tusk referred to those manifestations of support for the European Union in his address to the European Parliament which elicited the response from Richard Ashworth MEP shown above. These are but straws in the wind but it is probably fair to say that the danger of a Brit8ish departure from the EU without a withdrawal agreement has receded slightly and the prospects of remaining within the bloc either through a second referendum or a straightforward revocation have advanced slightly.

Both the European Union and the United Kingdom have been making preparations for the UK's departure from the EU without a deal, According to the Commission's press release of 25 March 2019, the EU's preparations are complete and can be viewed on its Brexit preparedness website. British preparations are continuing and those that have been made so far appear on the Prepare for EU Exit site.

Anyone wishing to discuss this article or brexit, in general, should call me on 020 7404 5252 during office or send me a message through my contact page.