The EU Withdrawal (No.5 Bill) received Royal Assent earlier this week becoming the European Union (Withdrawal) Act 2019 (the 2019 Act).
Section 1 of the 2019 Act places a legal obligation on the Government, requiring a Minister to move a motion in the House of Commons which states: “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 […]”. The Minister must substitute a specific date in the square brackets.
Last Friday Theresa May asked for a further extension of Article 50 until 30 June 2019. She also subsequently tabled a motion as required under the 2019 Act seeking retrospective Commons approval for that course of action. That motion was debated in the Commons earlier this week and was approved by a majority of 310. In light of this the Government met its obligation under section 1 of the 2019 Act.
During the passage of the 2019 Act, the Lords amended the Bill to remove the original provision which said that if the EU suggested an alternate date to the one approved by Parliament, MPs would have to vote to approve that date. However, it also added a provision preventing the extension from being shorter than 22 May. This meant that the Prime Minister was free to agree any extension which went beyond 22 May without further Parliamentary approval.
The UK Government has therefore accepted the further extension to the Article 50 process approved by the European Council in the early hours of this morning (see the letter from Sir Tim Barrow). The European Council agreed to further extend Article 50 until 31 October 2019.
As regards changing the definition of exit day in UK domestic legislation (the EU (Withdrawal) Act 2018), a statutory instrument is needed. Such a statutory instrument is now subject to the negative procedure following amendments made whilst the 2019 Act was going through Parliament as a Bill.
Most statutory instruments are made using the negative procedure. Parliament is not required to approve the statutory instrument for it to become law. The statutory instrument becomes law on the day the Minister signs it and automatically remains law unless a motion – or ‘prayer’ – to reject it is agreed by either House within 40 sitting days. However, it is very rare for rejection to occur – the last time this happened was in October 1979. In addition, given that the Opposition agreed to the Government amendment changing the procedure for the statutory instrument from positive to negative procedure it would seem unlikely that either House would approve a rejection.