European Union (Withdrawal) (No. 2) Act 2019.

Author O Flammger London (Stengel & Co. Dresden)
Source Wikipedia, The Palace of Westminster

Jane Lambert

The European Union (Withdrawal) No 6 Bill which I mentioned in my August Brexit Briefing received royal assent on 9 Sept 2019 and is now law. It is known as the European Union (Withdrawal) (No. 2) Act 2019 though some of those who have opposed this legislation have somewhat ungraciously referred to it as "the surrender act" (see Jeff Taylor Brexit Surrender Act is now Law 9 Sept 2019 YouTube).

The purpose of the Act is "to make further provision in connection with the period for negotiations for withdrawing from the European Union." The short Act consists of 5 sections and a schedule. 

The key provision of the Act is s.1 which consists of 5 subsections.  The first two of those subsections impose conditions for the UK's withdrawal from the EU.  The condition in s.1 (1) is that:

"a Minister of the Crown has laid before each House of Parliament a statement that the United Kingdom has concluded an agreement with the European Union under Article 50 (2) of the Treaty on European Union and a copy of the agreement and—
(a) the agreement has been approved by resolution of the House of Commons on a motion moved by a Minister of the Crown, and
(b) a  motion for the House of Lords to take note of the agreement has been tabled in the House of Lords by a Minister of the Crown and—
(i) the House of Lords has debated the motion, or
(ii) the House of Lords has not concluded a debate on the motion before the end of the period of two Lords sitting days beginning with the first Lords sitting day after the day on which the House of Commons passes the resolution mentioned in paragraph (a)."

The condition in s.1 (2) is that:

"a Minister of the Crown has laid before each House of Parliament a statement that the United Kingdom is to leave the European Union without an agreement having been reached under Article 50 (2) of the Treaty on European Union and—
(a) the statement has been approved by resolution of the House of Commons on a motion moved by a Minister of the Crown in the following form—

“That this House approves the withdrawal of the United Kingdom from the European Union under Article 50 of the Treaty on European Union on exit day, without a withdrawal agreement as defined in section 20(1) of the European Union (Withdrawal) Act 2018”,

and 

(b) a motion for the House of Lords to take note of the statement has been tabled in the House of Lords by a Minister of the Crown and—
(i) the House of Lords has debated the motion, or
(ii) the House of Lords has not concluded a debate on the motion before the end of the period of two Lords sitting days beginning with the first Lords sitting day after the day on which the House of Commons passes the resolution mentioned in paragraph (a)."

If neither of those conditions is complied with before 19 Oct 2019, s.1 (3) requires the prime minister to comply with s.1 (4) on or before that date.

Under s.1 (4) the prime minister must seek to obtain from the European Council an extension of the period under art 50 (3) of the Treaty on European Union ending at 11.00pm on 31 October 2019 by sending to the President of the European Council a letter in the following terms which are set out in the schedule to the Act:

"Dear Mr President, 

The UK Parliament has passed the European Union (Withdrawal) (No. 2) Act 2019. Its provisions now require Her Majesty’s Government to seek an extension of the period provided under Article 50 (3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty, currently due to expire at 11.00pm GMT on 31 October 2019, until 11.00pm GMT on 31 January 2020.
I am writing therefore to inform the European Council that the United Kingdom is seeking a further extension to the period provided under Article 50 (3) of the Treaty on European Union, including as applied by Article 106 a of the Euratom Treaty. The United Kingdom proposes that this period should end at 11.00pm GMT on 31 January 2020. If the parties are able to ratify before this date, the Government proposes that the period should be terminated early. 

Yours sincerely, 

Prime Minister of the United Kingdom of Great Britain and Northern Ireland”

The subsection adds that the purpose of the subsection is to to enable Parliament to "debate and pass a Bill to implement the agreement between the United Kingdom and the European Union under Article 50 (2) of the Treaty on European Union, including provisions reflecting the outcome of inter-party talks as announced by the Prime Minister on 21 May 2019, and in particular the need for the United Kingdom to secure changes to the political declaration to reflect the outcome of those inter-party talks."

If the conditions in s.1 (1) or s.1 (2) are met after 19 Oct but before 30 Oct 2019, s.1 (5) enables the prime minister to withdraw or modify his request.

If such an extension is granted, s.2 (1) imposes a duty on the Secretary of State to report on the progress of negotiations with the EU to Parliament or before 30 Nov 2019 and in each subsequent period of 28 days up to 7 Feb 2020 or agreement is reached pursuant to s.2 (5).  Those reports must be approved by both Houses under s.2 (2) and (3).  If the report is rejected or amended the Secretary of State has to make proposals for further negotiations under s.2 (4). 

S.3 (1) requires the prime minister to agree to an extension ending on 31 Jan 2020.  If some other date is offered by the Council the prime minister must accept the exception within 2 days of the offer by virtue of s.3 (2) unless the House of Commons refuses to pass a motion in the following terms:

“That this House has approved the extension to the period in Article 50(3) of the Treaty on European Union which the European Council has decided.”

S.3 (4) allows the prims minister to agree to an extension otherwise than in accordance with s.3 (2).

S.4 (1) amends s.20 (4) of the European Union (Withdrawal) Act 2918 by substituting "must" for "may" in the provision requiring the government to fix the date and time of the UK's withdrawal from the EU by statutory instrument.  That amendment will not apply if the Commons does not pass the motion mentioned  above,

The last section provides for the commencement interpretation and extent of the Act and its short title.

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