Throughout all of the twists and turns of the Brexit process so far, a rare point of certainty had (until recently) been that the UK was set to leave the EU on 29 March 2019. But following last week’s European Council decision, that is no longer the case. The new default position is that the UK will leave on 12 April. One other point of certainty — and this remains unchanged — is that the UK will leave the EU on the appointed date whether or not a withdrawal agreement is in place. That follows straightforwardly from Article 50(3) of the Treaty on European Union.
Against this background, the UK’s present options appear to be decidedly limited — a point that has been leveraged by a Prime Minister desparate to push her deal through by threatening ‘no deal’ as the only alternative. There are, though, two other options. The first is a further extension to the Article 50 process. However, while the European Council has shown itself willing to grant one extension, it cannot be taken for granted that a second would be forthcoming, particularly in the absence of a clear and deliverable way forward having been identified by the UK Government. The second option is revoking Article 50 — a possibility that has risen up the political agenda in recent days, not least in the light of a petition signed (at the time of writing) by approximately 6 million people. Importantly, whereas the agreement of all other Member States would be needed for a further extension, the EU Court of Justice held in the Wightman case that the UK can unilaterally revoke Article 50.
From all of this, it follows that if Parliament really wishes to take a no-deal Brexit off the table, it needs to ensure that leaving without a Withdrawal Agreement ceases to be the default option — and that it can only do this by legally precluding a no-deal Brexit. How might this be done? The first point to emphasise is that any revocation of Article 50 would almost certainly require legislation in the form of an Act of Parliament. While it is strongly arguable, as Robert Craig has explained, that no legislation was needed to authorise the Government to seek an extension, the same is not true, for reasons set out by Gavin Phillipson and Alison Young, of revocation. Parliament’s role, if Article 50 were to be revoked, would thus be indispensible.
However, this only gets us so far. It is one thing to say that Parliament would have to act, by way of legislating, if revocation were to be rendered a legal possibility. But what if Parliament were to decide that it did not merely wish to make revocation possible, but that it wished to go further by insisting upon revocation in the absence of a withdrawal agreement, so as to provide an absolute legal guarantee that there would not be a no-deal Brexit?
The Kennedy Bill
A recent piece on the Independent website discusses a Bill drawn up with the involvement of Baroness Helena Kennedy that attempts to addres precisely this issue. The ‘Kennedy Bill’ is admirably short, running to only one substantive clause. Clause 1 of the Bill provides as follows:
1 Revocation of notification of intention to withdraw from the European Union
(1) Subsection (2) applies if it appears to the Prime Minister that a withdrawal agreement is unlikely to be ratified by the United Kingdom before exit day.
(2) The Prime Minister must in that case, before exit day, notify the European Council that the notification given by the United Kingdom under Article 50(2) of the Treaty on European Union, of its intention to withdraw from the European Union, is revoked.
(3) In this section—
(a) “withdrawal agreement” has the meaning given by the European Union (Withdrawal) Act 2018;
(b) “ratified” is to be construed in accordance with section 25 of the Constitutional Reform and Governance Act 2010.
The premise of the Bill is clear. If the UK appears to be hurtling towards a cliff-edge no-deal Brexit, then the Prime Minister becomes legally obliged to rescind the UK’s notification of its intention to withdraw from the EU — in other words, to abort the Brexit process.
Crucially (and obviously) the Prime Minister’s legal obligation under the Bill is to do this prior to exit day. ‘Exit day’ is not defined by the Bill, but does not need to be: schedule 1 of the Interpretation Act 1978 means that ‘exit day’, whenever mentioned in legislation, carries the meaning assigned to it by section 20 of the European Union (Withdrawal) Act 2018 (EUWA). This means that the duty to revoke would have to be discharged before 11.00 pm on 12 April 2019.
Critique
Whether ruling out a no-deal Brexit is a good idea is a question on which people sharply disagree. However, the question for present purposes is a different one. It is whether, if Parliament were to decide that it wished to rule out a no-deal Brexit, the Kennedy Bill would be a satisfactory legal vehicle for delivering that policy aim. Starting from this position, the basic premise of the Bill is sound: a legal duty to revoke Article 50 is imposed, but only in the event that a no-deal Brexit is looming. This approach permits Brexit on terms set out in a withdrawal agreement, but seeks to preclude Brexit in the absence of such an agreement.
However, a question arises about the circumstances in which the Prime Minister’s legal obligation to revoke is in the first place triggered by the Kennedy Bill. Clause 1(1) says that the duty arises ‘if it appears to the Prime Minister that a withdrawal agreement is unlikely to be ratified by the United Kingdom before exit day’. On the face of it, this appears to be a relatively weak formulation. What would happen, for instance, if the Prime Minister were to be hopelessly optimistic about the prospect of getting the withdrawal agreement through the House of Commons, and was never prepared to accept that it was ‘unlikely’ to be ratified? Does the subjective language of clause 1(1) — ‘if it appears to the Prime Minister’ — mean that her assessment would be decisive?
Not necessarily. A court, if the question arose on judicial review, would almost certainly import an objective standard into clause 1(1), by asking whether reasonable grounds existed for the Prime Minister’s view that ratification of the withdrawal agreement was not ‘unlikely’. However, in the extraordinary circumstnaces in which we find ourselves, this might not be particularly helpful in practical terms. A judicial ruling to the effect that the Prime Minister had acted unlawfully by failing to revoke would be little comfort if, by then, the UK had crashed out of the EU without a withdrawal agreement. Admittedly, there would also be the possibility of a pre-exit legal challenge, in which a court could be asked to order the Prime Minister to revoke on the basis that it was not reasonably open to her to perceive that ratification was not ‘unlikely’. But litigation on this point at the eleventh hour would, to put the matter at its mildest, be far from ideal.
Alternative approach
Might the Kennedy Bill therefore be changed, so as to avoid these difficulties? The answer, it seems to me, is ‘yes’. In particular, the Bill could be altered so as to cause the Prime Minister’s duty to revoke to arise at a particular point in time, rather than (as in the current version of the Bill) by reference to the Prime Minister’s perception of the probability of ratification. The following suggestion is based on the Kennedy Bill, but clause 1(1) differs in an important respect:
1 Revocation of notification of intention to withdraw from the European Union
(1) Subsection (2) applies if a withdrawal agreement has not been ratified by the United Kingdom 24 hours before exit day.
(2) The Prime Minister must in that case, before exit day, notify the European Council that the notification given by the United Kingdom under Article 50(2) of the Treaty on European Union, of its intention to withdraw from the European Union, is revoked.
(3) In this section—
(a) “withdrawal agreement” has the meaning given by the European Union (Withdrawal) Act 2018;
(b) “ratified” is to be construed in accordance with section 25 of the Constitutional Reform and Governance Act 2010.
This formulation would leave no room for doubt. ‘Exit day’ is defined in UK law as 11.00 pm on 12 April 2019. My proposed clause would operate straightforwardly. At 11.00 pm on 11 April, the question would arise: Has the withdrawal agreement been ratified? If the answer to that question was ‘yes’, then the Prime Minster’s duty to revoke would not arise, and the UK would leave the EU 24 hours later on the terms set out in the withdrawal agreement. But if the answer was ‘no’, the Prime Minister would be legally obliged to revoke Article 50, and the UK would remain a Member State of the EU.
It is worth adding that if the UK were to secure a further extension to the Article 50 period, then the proposed Bill would not prevent that extension from taking effect. Provided that the definition of ‘exit day’ in domestic law was aligned in a timely fashion with the newly deferred date of departure from the EU, the obligation on the Prime Minister to revoke Article 50 would not arise. That is so because the trigger condition (i.e. failing to have ratified a withdrawal agreement 24 hours before exit day) would not be fulfilled in such circumstances, exit day having been moved to a date further into the future.
Repealing the European Union (Withdrawal) Act 2018
The Kennedy Bill could also be improved upon in a further respect. At present, it is directed exclusively towards the position in EU law: that is, it seeks to ensure that, in the absence of a withdrawal agreement, the UK does not leave the EU. However, if the power to revoke was exercised, it would be necessary — potentially in very short order — to address the domestic legal implications of doing so. As things stand, on ‘exit day’ a whole raft of legal changes go live, thanks to large volumes of secondary legislation made under the EUWA and under other powers, in anticipation of Brexit. Much of that legislation is incompatible with EU law and would be unlawful if the UK were to remain a Member State beyond ‘exit day’ as defined domestically. Moreover, if it had been brought into force by the relevant time, section 1 of the EUWA would repeal the European Communities Act 1972, which is the principal means by which the UK discharges its obligations to give domestic effect to EU law. All of this suggests that the Kennedy Bill should make one further provision, by means of a second clause:
2 Repeal of the European Union (Withdrawal) Act 2018
If the Prime Minster gives notification to the European Council pursuant to section 1(2), the European Union (Withdrawal) Act 2018 is repealed with immediate effect.
Adding this clause would ensure that the domestic legal position was properly and immediately aligned with the position in and under EU law if the revocation obligation was triggered. Among other things, my proposed clause 2 would ensure that the European Communities Act 1972 was not repealed on ‘exit day’, and that Brexit-related secondary legislation due to enter into force on ‘exit day’ would not enter into force. In the case of such legisaltion made under the EUWA, it would fail to enter into force because, the EUWA having been repealed, it would be deprived of a legal basis. In the event of secondary legislation made under other powers, it would fail to enter into force because it only takes effect on ‘exit day’, and in the absence of the EUWA there would no ‘exit day’.
Conclusion
The enactment of legislation along the lines outlined in this post is doubtless highly unlikely. However, if Parliament really does wish to wrest control of the Brexit process from the Government, and if it really does wish to guarantee against a no-deal Brexit, it may have little option but to contemplate enacting such legislation. If it is introduced into Parliament and voted on, it will force lawmakers to confront matters with a degree of directness that has so far been wholly lacking.
It is one thing to ‘rule out’ a no-deal Brexit by means of supporting an amendment to a motion or disapproving of a no-deal Brexit by means of an ‘indicative vote’. But such interventions by Parliament do not alter the legal position, and therefore leave the Article 50 clock undisturbed as it ticks towards a default no-deal Brexit on 12 April. Instead, it is only by means of a Bill along the lines set out above that Parliament could truly rule out a no-deal Brexit. There has been a great deal of noise in recent weeks about Parliament’s desire to ‘take charge’ of Brexit given the Government’s apparent paralysis. The introduction of a Bill ruling out a no-deal Brexit would be an interesting acid test of the genuineness of that desire.
This post was updated on 29 March 2019 in the light of the House of Commons’ rejection of the Withdrawal Agreement.
I am grateful to Jonathan Cooper OBE for having drawn my attention to the Kennedy Bill. I am also grateful to him and to Aidan O’Neill QC for very helpful discussion of the issues raised in this post. In the course of those discussions, I learned of a Bill drafted by Aidan O’Neill with which my proposals above align quite closely, and I wish to acknowledge Aidan O’Neill’s separate work on this matter. A copy of the version of the Bill drafted by Aidan O’Neill can be found here.
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