3.1 Parliament’s role in the absence of a deal
The European Union (Withdrawal) Act 2018 (EUWA) set out a process to give Parliament a say in the event that the Government either does not reach an exit deal with the EU’s negotiators, or if a deal is then rejected by the House of Commons.63 The Government would then have to set out its contingency plans in a written statement and allow the House of Commons to debate the implications of that plan.64
Because of changes made to the Standing Orders of the House on 4 December 2018 (under a Business of the House Order), MPs would be able to propose “amendments” to a “neutral” Government motion during this Commons debate. This would allow MPs to seek directly (but politically rather than legally) to influence the Government’s next steps.
How did this statutory role play out?
In the event, the Commons did in fact decline to approve the Prime Minister’s exit deal on 15 January 2019. The Prime Minister went on to make two written statements (on 21 January and 24 January). The House then debated a motion about the ‘plan B’ statements on 29 January.65
The outcome of that debate was a resolution saying that the Commons had “considered” the statements. The resolution also included two of the amendments MPs had proposed to the original motion.
The Spelman amendment “rejecting” no deal
Firstly, an amendment from Caroline Spelman was approved by 318 votes to 310. That amendment:
… rejects the United Kingdom leaving the European Union without a Withdrawal Agreement and a Framework for the Future Relationship.
In and of itself, this has no legal effect. It does not, for example, revoke the UK’s notification under Article 50 in the absence of a deal. Neither does it ask or require the Government to do anything in relation to extending Article 50 beyond 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020). The legal default remains: the UK leaves the EU without a deal on 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020) at 11pm GMT.
What the vote on this amendment might do, however, is indicate the Government’s prospects of success, were it to make a second attempt at getting Commons approval for a deal.
The Brady amendment “requiring” the backstop to be replaced
The second amendment (in the name of Graham Brady) was approved by 317 votes to 301. Its terms were to:
… require the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border; support leaving
63 s. 13(4-13) EUWA
64 The House of Lords also must debate a motion “taking note” of any such statements (s. 13(6)(b) EUWA)
65 HC Deb 29 January 2019, cc668-791
the European Union with a deal and [that its supporters] would therefore support the Withdrawal Agreement subject to this change.
As with the Spelman amendment, this has no legal effect. It serves simply as a political instruction to the UK Government. Any change to the terms of the Withdrawal Agreement’s Protocol concerning the Irish border would – in any case – require the EU’s agreement.
Equally, this political direction does not legally prevent the Government from making a second attempt to pass a deal even in the absence of changes to the backstop.
A further role for Parliament?
In strict statutory terms, Parliament’s role in debating the Prime Minister’s contingency plans is now concluded. Section 13 of the EUW Act (and its duty to make statements and hold debates) only becomes “operative” again if and when the Government makes a second attempt to secure an approval resolution.
In political terms, however, a continuing role is expected for Parliament in the coming weeks. The Prime Minister said the following at the despatch box during the debate on 29 January:
We will bring a revised deal back to this House for a second meaningful vote as soon as we possibly can. While we will want the House to support that deal, if it did not, we would—just as before—table an amendable motion for debate the next day. Furthermore, if we have not brought a revised deal back to this House by Wednesday 13 February, we will make a statement and, again, table an amendable motion for debate the next day. So the House will have a further opportunity to revisit this question of leaving without a deal.66
There is therefore a two-pronged expectation: that a new deal will be brought forward following further negotiations with the EU, failing which a similar process to the 29 January debate will be undertaken again, but on a non-statutory basis, on 14 February.
3.2 What happens to EU law in the UK in the absence of a transition period?
The UK has already legislated to seek to provide “legal continuity” as and when it leaves the EU. The European Union (Withdrawal) Act 2018 both repeals the European Communities Act 1972 (“on exit day”) and makes arrangements to “transpose” much, but not all, of EU law as it exists on exit day, into domestic law. The Act also makes arrangements to allow the UK’s Governments (plural) to make “corrections” to domestic law (including retained EU law) to make sure that it functions properly in light of the UK no longer being an EU Member State.
EUWA operates ‘agnostically’ as to the existence or otherwise of a deal. It is intended to provide legal continuity regardless of the outcome of the Brexit negotiations. In practice, however, the manner in which legal continuity is achieved, and on what timescale, will depend on whether (and what type
66 Ibid. cc671
of) agreement is ratified. The Withdrawal Agreement of November 2018 expected that a transition/ implementation period would be part of any final agreement. Such a period was expected to operate until the end of December 2020.
During that transition period, EU law (including the jurisdiction of the Court of Justice of the EU – CJEU) would continue to have full force and effect. The UK would therefore be expected to provide domestic means of implementing EU law that comes into effect between exit day and the end of transition in its Withdrawal Agreement and Implementation Bill.67
The key difference in a ‘no deal’ scenario is that no transition period would apply. The ‘default’ provisions of EUWA would come into effect from 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020) at 11pm GMT. This would mean there would be no obligation, either in international law or domestic law, to ‘track’ or ‘shadow’ changes in EU law from that point onwards.
67 The Government White Paper, Legislating for the Withdrawal Agreement between the United Kingdom and the European Union, Cm 9674, 24 July 2018, explains that a transition agreement will be delivered by legislating to delay the repeal of (parts of) the European Communities Act to a point after exit day.
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