What Is The European Union (Withdrawal) (no.2) Act & How Does It Stop No Deal Brexit?
In early September, Parliament fast tracked a Bill to ensure that the UK does not crash out of the EU without a deal. The Bill-turned-Act, properly named the European Union (Withdrawal) (No. 2) Act, sets out the terms and conditions under which Boris Johnson would would have to request an extension to Article 50 until January 2020.
Here we take a look at the terms of the Act, the Parliamentary mechanisms used to fast track it, the context in which it has been introduced, and it’s short history in both chambers of Parliament.
If you’re not familiar with Bills and Acts of Parliament, or the legislative process that turns a Bill into an Act, check out this neat Gov.uk guide: Legislative process: taking a Bill through Parliament.
The Brexit Context
Boris Johnson’s Government has made reaching a withdrawal agreement with the EU an extremely difficult task. This is in large part due to its stance on the Irish backstop - the safeguard clause in the current withdrawal agreement that eliminates the risk of the return of a hard border between Northern Ireland and the Republic of Ireland.
The Government’s Brexit position
The Government’s negotiating position leans heavily on a single demand: the complete removal of the backstop. Johnson has repeatedly claimed that there are viable alternatives. However, reports from within the UK and across the continent have asserted that no alternatives have been put forward, this with just over a month to go until the Brexit deadline.
This makes a dangerous no-deal Brexit far more likely than ever before. Indeed, it seems that a no-deal Brexit is the Government’s agenda, with the ultimate goal being a clean break from the EU - i.e. no regulatory alignment whatsoever.
In our Prorogation guide, we highlighted that the Government’s move to prorogue parliament for five weeks from September to October was seen as a way of preventing Parliament from fully exercising its democratic mandate and participating in the Brexit decision-making.
Around about the same time Jeremy Corbyn held discussions with other opposition leaders and Conservative rebels to agree a course of action that would prevent an extreme version of Brexit that has no concrete public support - a no-deal Brexit. This brings us to the EU (Withdrawal) (No. 2) Act.
The terms of the EU (Withdrawal) (No. 2) Act
This Act, introduced by Labour MP Hilary Benn (Leeds Central) on Wednesday 4 September provides that the Prime Minister must, by law, request a 3 month extension to Article 50 - the legal mechanism for withdrawing from the EU - by 19 October if he has not met either of the following conditions:
A deal has been secured with the EU and has been passed in the House of Commons and debated in the House of Lords.
The Government has obtained Parliament’s consent to leave the EU without a deal.
The requested extension would set the new Brexit deadline to 31 January 2020. Further provisions are made to ensure that 1. The PM accepts the three month extension if it is subsequently offered by the EU. And 2. Should the EU amend the requested deadline, the PM must either accept it or put it to a vote in the House of Common.
In addition, the Government must publish a report on the progress of Brexit negotiations on 30 November 2019. If the House of Commons rejects or amends the report, a second report must be published. From 7 February 2020, the Government must publish a report every 28 days until an agreement with the EU is reached.
A short history of the Act
Before the Act in Bill form was debated and passed in the House of Commons, it had to find its way onto the Order Paper, which sets out the business (timetable) of the House on a given sitting day. Business tabled by the Government usually takes precedent, making it exceedingly unlikely for opposition business to get a look in.
As such, a suitable mechanism had to be used to override the primacy of Government business. Back in March backbenchers were able to take control of the Order Paper by tabling an amendment to a amendable Government motion. The outcome was a set of Brexit indicative votes, against Government wishes, and the Cooper-Letwin bill that forced Theresa May to seek an Article 50 extension.
This time around, Conservative MP Sir Oliver Letwin (West Dorset) used a procedural mechanism known as Standing Order 24.
Standing Order 24: Fast-tracking the bill
As set out in the Parliamentary Standing Orders for public business - the written rules that govern Parliamentary procedure - Standing Order 24 allows for an MP to make a three minute application for an emergency debate on a motion.
If the Speaker of the House deems the matter to be proper for an emergency debate, and it has the support of at least 40 MPs, the debate shall go ahead. If it is supported by less than 40 but no less than 10 MPs, the application shall be put to a vote.
On 3 September, Letwin used Standing Order 24 to propose an emergency debate on a motion designed to take control of the Order Paper for the following day (4 September), and to fast track the European Union (Withdrawal) (No. 6) bill through the House of Commons. With cross-party support, the application succeeded and the debate went ahead.
Crucially, the motion itself set out a timetable for 4 September that ensured all stages of the anti no-deal bill was completed in a single sitting, allowing MPs to vote it through the Commons. A majority of 328-301 passed the Letwin motion under Standing Order 24, defeating the Government in its first vote in Parliament.
The fallout from this loss resulted in the expulsion of 21 MPs from the Parliamentary Conservative Party, costing the Government its majority - though the Conservative Party remains the biggest party in the House of Commons.
For more information about control of the Parliamentary timetable and taking over the Order Paper, we’ve included some useful resources at the end of this article.
The Bill In the House of Commons
MPs passed the anti no-deal Brexit Bill through the second and third reading stages with a majority of more than 25 on each occasion. The Government vehemently opposed the Bill, as it did the Letwin motion under Standing Order 24, although no more expulsions were handed out to rebellious Tory MPs who voted in favour of it.
A single amendment, tabled by Stephen Kinnock (Labour MP for Aberavon) was passed by default during the bill’s committee stage amid confusion. No tellers - MPs appointed to verify the vote count - were provided by those in opposition to the amendment, resulting in the vote being called off and the amendment passing.
The amendment brings back Theresa May’s Withdrawal Agreement for debate, albeit a version that contains concessions made after the cross-party talks with Labour, which was never published or presented to Parliament for a vote.
The Bill in the House of Lords
Following a bill’s third reading, it gets passed to the House of Lords for debate and amendments. On Friday 6 September, the EU (Withdrawal) (No. 6) Bill passed swiftly and unamended through the upper chamber of Parliament, thanks in large part to a Lords business (order paper) motion that, like the Letwin motion under Standing Order 24, imposed a strict timetable on the bill’s passage.
While the Bill in question was going through the lower chamber on 4 September, the Labour leader in the House of Lords, Angela Smith, tabled a business motion that sought to get the bill through the house by 5pm on 6 September.
The Smith motion was subject to an intense filibustering attempt; Conservative peers in opposition tabled more than 100 amendments, each requiring two votes that would last approximately 15 minutes each. This, of course, merited criticism given that unelected Parliamentarians were seeking to wreck a bill supported by the majority of elected representatives.
At around 1:30AM on 5 September, Conservative peers relented and the business motion was passed, allowing the EU (WIthdrawal) (No. 6) bill to pass as scheduled.
Royal Assent: The Bill becomes law
The Bill received royal assent, and thus was enshrined in law as an Act of Parliament, thereafter known as the European Union (Withdrawal) (No. 2) Act. Boris Johnson will be required, by law, to request an Article 50 extension if a deal/no-deal exit hasn’t been approved by Parliament.
PM Boris Johnson’s do-or-die Brexit rhetoric has led to concerns about Government breaking the law, or at least testing its flexibility, by not requesting an extension. This is sure to be fought in the courts.
We are now in untested constitutional terrain.
A general election?
The PM is seeking an election in time to secure a mandate for leaving the EU on 31 October, do-or-die. However, opposition MPs appear to be calling the shots now. They argue that the PMs reputation for deceit has led them to delay approval for a general election until an extension to Article 50 has been granted.
In any case, a general election seems imminent. Be sure to check if you’re registered to vote by contacting your local Electoral Registration Office in England, Scotland or Wales, or by checking with the Electoral Office for Northern Ireland in you live in Northern Ireland.
The MLMS Prorogation Guide.
The House of Commons Library: Explainer and infographic for how backbenchers took control of the Order Paper in March.
The Institute for Government: Short post on who should control the Parliamentary timetable.
House of Commons Standing Orders for Public Business.
Featured image: UK Parliament