Brexit Update: Could the UK Technically Still Leave the EU on March 29th?

Last week the European Council announced that having rejected Theresa May’s proposal to extend Article 50 until the 30th of June, they would instead offer two alternative dates that were contingent on the success of failure of the Prime Minister’s withdrawal agreement.

If May managed to gain parliamentary approval for the deal prior to the original exit day of March 29th, the council would grant an extension until May 22nd in order to allow enough time for subsequent legal legislation to be passed through the House of Commons. On the other hand, if Parliament again rejected the agreement, the extension would only stretch as far as April 12th. According to a press release, the UK would need to ‘indicate a way forward before this date for consideration by the European Council‘.

What the EU Council’s conclusions did not make mention of is what would happen in regards to extending Article 50 if the government opted not to put the deal before parliament for a third time. In such circumstances, would the April 12th date still apply?

Following the decision of the EU Council, the BBC confirmed that the UK’s departure date was still written into UK law as March 29th. To change this, they outlined that the government would be presenting a statutory instrument to parliament (a secondary piece of legislation) to ratify the delay.

On Monday, the government issued the necessary draft legislation to amend the exit day to either April 12th or May 22nd. The legislation makes explicit reference to both dates.

But what is the procedure if meaningful vote number three does not take place?

On Friday last week, as well as affirming that the secondary legislation to change the exit day was a compulsory requirement, the Guardian reported that Downing Street had said that the ‘EU’s agreement to extend article 50 was contingent on holding the vote next week.’ According to the paper, the vote would likely take place a couple of days prior to March 29th, to allow politicians enough time to pass the required legislation to change the exit day.

As of writing it is not entirely clear whether the draft legislation can become law before a further vote takes place. Going by what the Guardian published, however, the agreement must first be voted on before the legislation is passed.

Offering an alternative perspective, BBC presenter Andrew Neil made this comment on Twitter:

For Tory Brexiteers still dreaming we leave on no deal March 29: extension agreed and signed off by EU27 is a decision binding in international law. EU law, not domestic law, created the 29th March legal “cliff-edge.” Failure to amend exit date in UK law does not lead to No Deal.

If this interpretation is accurate, then the March 29th date is defunct and is no longer relevant in any signifcant context.

Over the weekend the Observer newspaper explained to its readers that if Theresa May’s withdrawal agreement was voted on and subsequently rejected, or if she opted not to hold the vote, ‘EU leaders made clear the UK would have to leave on April 12th‘. The same paper also stated that parliament must vote by the end of this week (prior to March 29th) on the statutory instrument to change the leaving date. They emphasised that MP’s ‘must do this before 11pm on Friday.’

Fine, but does this not expose a contraction? Andrew Neil was categorical in his tweet that because the decision to extend to one of two dates was binding in international law, it would not matter if the UK failed to extend the exit date in UK law on time. A no deal exit could not legally happen. Yet other outlets are saying that it is a necessity that parliament changes the date in UK law before 11pm on Friday.

It begs the question – what happens if parliament, for whatever reason, does not do this? Do we remain part of the EU with international law superseding domestic law? Or do we cease to be a member of the EU? There is confusion on what exactly the law of the land would be.

The very latest news is that Theresa May has announced that there is insufficient support at present to put the withdrawal agreement to another vote. This follows a comment from her spokesman earlier on, who said the Prime Minister wants to change the date of the UK’s departure ‘as soon as we are able‘. The intention, said the spokesman, was to do this before March 29th. In response to a question in parliament, Theresa May has said a vote to change the date of Brexit will be held this Wednesday. She did not say whether this was contingent on a third meaningful vote taking place.

Elsewhere, MP’s are seeking to hold a series of indicative votes on alternative ways to break the Brexit ‘deadlock‘. They include remaining part of a customs union and close alignment with the single market, a no deal exit, revoking article 50 and holding a ‘People’s Vote‘ referendum. If there proved to be no working majority for any of the options afforded to MP’s, and the planned meaningful vote never happened, what then? Would the statutory instrument already have been passed regardless, with April 12th written into UK law?

Since last year I have favoured the scenario of a second referendum taking place, one that would offer the option of leaving the EU on World Trade Organisation terms. My belief remains that if the public were given the choice of a ‘hard‘ Brexit, they would support it.

Whilst I keep to that prediction, I think it would be foolish to dismiss the possibility of the UK dropping out of the EU sooner. Is March 29th, as the majority of talking heads in the media are certain about, ‘off the table’? It definitively would be if the exit day is changed before 11pm on Friday.

If it remained unchanged at this time, however, some say it would not matter, whilst others tend towards the UK leaving the EU with no deal. The next few days should provide clarity on the issue.

2 comments

  1. Approaching possible UK law from a perspective of consistency on extension of Article 50, in

    R (Miller) v Secretary of State for Exiting the European Union

    “The court described the passing of the European Communities Act 1972 as the major step of “switching on the direct effect of EU law in the national legal systems”, and reasoned that it is implausible that Parliament’s intention was that the Crown should be able to switch it off unilaterally by exercise of its prerogative powers”

    It therefore would follow that to deny the right of society to exist outside of European law as promised by Parliament for March 29th would require a parliamentary vote on the ammendment to the date of exit. Law tends to work on the grounds of maintaining the existing frameworks, but it should be argued that March 29th exit is the de facto existing framework, it is the legal reality that society has been subject to for nearly two years and not just some longwinded discussion at international level about what will happen afterwards as the accepted choices (WTO) is already known should that discussion not prove more productive. Note accession to EU did not occur until after parliament voted on the deal reached, we now have the reverse, pariiament has voted to leave on a certain date and the only question, and one that does not override leaving, is if a wider deal will be reached.

    I would also say that the ammendment to date could be passed before a third vote, as it would be indication of procedure. The important point in this is the order. Would parliament be voting for an extension after no deal became default, or would they be voting for an extension in case the third vote passed, or both or neither? The perception of what outcome is placed as direct consequence of choice on the ammendment vs. in another scenario what would only be the expansion of possibilities resulting, will for example affect the way mps vote.

    This can all be argued with, of course.

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  2. Sorry for the typos and slightly drawn out (not so concise or pointed) explanation to the previous comment, it was very late when written. The gist of the meaning is there though, which will do.

    Note today the persecution of this detail by Sir William Cash, who not only questions the legality of the executive decision to extend the date

    “Bill Cash on warpath – asks a tricky question about publishing the Attorney General advice on the lawfulness of the PM having delayed Brexit date simply by agreeing so with EU Council. Asks to withdraw UK law date change vote tonight.” Faisal Islam

    but would also have the subsequent attempt at approval of the extension delayed or abolished.

    Sir William Cash is very informed on constitutional law. The ammendment he tabled today “(A) Constitutional and accountable government” is aimed at further defining the responsibility of government by making it much more difficult for it to hand the order to parliament once it is set. This is what the PM seems to be doing now, stretching the order and then turning it to the hand of parliament as a cover or tool to reach results that were not part of the established direction ( for example exit on March 29th). The method being used avoids direct government accountability, and that is leading to the avoidance of clear decisions and the introduction of confusion we now have.

    So ammendment A, whether it is accepted and its passage, is one to which note should be paid.

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