This post sets out how the United Kingdom went about extending the Article 50 period from 29 March 2019.
This post also sets out a problem for the United Kingdom in the event that a further extension is required beyond the new departure date of 12 April 2019.
The 29 March 2019 extension on the international plane
The starting point is the “international plane” of the extension, here Article 50 of the Treaty of European Union.
Article 50(3) provides that:
“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned unanimously decides to extend this period.”
As the United Kingdom notified its departure on 29 March 2017, this meant that the set departure date was to be on 29 March 2019.
This was to be the date on which, by automatic operation of law, the “treaties would cease to apply”.
The United Kingdom would have left the European Union as a matter of public international law (the law which covers treaties and the relationships between a nation and other nations and international bodies).
As it happens the United Kingdom decided to seek an extension of the Article 50 period.
This request was made to the European Council on 20 March 2019 and the full letter is here. You will see the letter is wordy and rhetorical, and it gets to its point only at the end:
“I am therefore writing to inform the European Council that the UK is seeking an extension to the Article 50 period under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty, until 30 June 2019.”
This, of course, was the only sentence that mattered, the rest was waffle.
The European Council, in turn, regarded this letter as little more than an invitation to treat. On 22 March 2019 the European Council made a reasoned and unanimous decision (here), which offered the UK two possible extensions:
“In the event that the Withdrawal Agreement is approved by the House of Commons by 29 March 2019 at the latest, the period provided for in Article 50(3) TEU is extended until
22 May 2019.
“In the event that the Withdrawal Agreement is not approved by the House of Commons by 29 March 2019 at the latest, the period provided for in Article 50(3) TEU is extended until
12 April 2019. In that event, the United Kingdom will indicate a way forward before 12 April 2019, for consideration by the European Council.”
The United Kingdom accepted this offer the same day, in a letter far less wordy and political than before (here):
“I refer to the draft European Council Decision taken in agreement with the United Kingdom extending the period under Article 50(3) TEU, as attached to this letter. I am writing to confirm the agreement of the Government of the United Kingdom to the extension of the period under Article 50(3) and to this decision.”
Offer and acceptance; the extension took legal effect.
As the House of Commons did not approve the Withdrawal Agreement by 29 March 2019 only the 12 April 2019 date now has formal standing. That is now the new date of departure, unless there is a further extension or a revocation of the Article 50 process.
The 29 March 2019 extension on the domestic plane
As a matter of public international law, the extension of the United Kingdom membership of the European Union was certain.
Article 50 had been extended, and so had the United Kingdom’s membership by automatic operation of law.
But there was a domestic legal problem.
By way of background, the European Union (Withdrawal) Act 2018 (the “2018 Act”) provides the domestic statutory arrangements for the United Kingdom’s departure.
In particular, section 1 of the the 2018 Act provides that the European Communities Act 1972 is repealed on “exit day”.
When the 2018 Act was first introduced in Bill form, the sensible decision was made that “exit day” would be whatever day the treaties ceased to apply under Article 50. It would float. Then the date was set to be 29 March 2019 but if there was any delay then the date would shift automatically.
As the Bill went through the House of Commons, however, pro-Brexit MPs insisted that 29 March had to be explicitly stated so that it was “enshrined” in law.
An amendment to that effect was passed.
The Act was to define “exit day” as 29 March 2019.
And this is the symbolic gesture which caused the domestic legal problems last week.
Fortunately, section 1 of the 2018 Act had not yet been brought in to force. For it have done so would have required a formal “commencement order” – the government, so far and wisely, has avoided this.
Had section 1 been brought into effect then, although the United Kingdom would have remained a member of the European Union on the international plane, the domestic legal implementing legislation would have been repealed (and replaced by an elaborate alternative scheme under the 2018 Act).
This would have caused a great legal mess and potentially opened the United Kingdom to legal liability for breach of its membership obligations.
But even though section 1 had not been brought into effect, there was still a potential legal mess.
There are other mentions of “exit day” in the 2018 Act which could cause problems. And there is the always unpredictable effect of the FBU decision of the House of Lords in 1995, which held it was not open for a government to make a decision contrary to what is provided in in a statutory provision, even if that statutory provision has not been put into force.
So the 2018 Act definition had to change, and change fast.
Under the 2018 Act, the definition could be changed by statutory instrument, but only to a new date on which the treaties ceased to apply:
“(3) Subsection (4) applies if the day or time on or at which the Treaties are to cease to apply to the United Kingdom in accordance with Article 50(3) of the Treaty on European Union is different from that specified in the definition of “exit day” in subsection (1).
(4) A Minister of the Crown may by regulations—
(a) amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and
(b) amend subsection (2) in consequence of any such amendment.”
The domestic legal definition could only follow the position on the international plane.
By 22 March 2019 the date the treaties ceased to apply had changed, which triggered the power of the government to change the date by statutory instrument.
But the problem is that changes by statutory instrument usually take time, and there was only a few days left before 29 March 2019.
And furthermore any statutory instrument for changing the exit day had to be by the affirmative procedure:
“Power to amend the definition of “exit day”
“14. A statutory instrument containing regulations under section 20(4) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
The venerable Hansard Society averred that the statutory instrument would have to be laid before the Houses by 25 March 2019 by the latest. (See their excellent post here.)
This meant there had to be positive votes in both Houses in a short period.
The race was on.
The debate in the Commons was controversial, and the minister had to repeatedly explain the distinction between international and domestic law.
But the statutory instrument was passed in time. You can see the statutory instrument here.
The extension took effect, and international and domestic law were in accordance with each other.
Lessons and a future problem
One lesson to learn from this experience is that things “enshrined” in law can often cause difficulties later on.
But a more serious lesson is that if there is a further extension, there has to be serious regard to the logistical and timing problems of getting the domestic amendment through.
The effect of the new statutory instrument is that the exit day is now defined as 12 April 2019.
But the next European Council where any extension would be agreed is on 10-11 April. There is a possibility that an extension decision (if any at all) could not come until late on 11 April 2019.
That would be too late for any amendment to the domestic legislation.
And remember the domestic legislation can only follow the international position, the date the treaties cease to apply, and so the international decision has to come first.
There may be work-arounds possible, but thought will need to put into those in advance.
Otherwise the legal mess closely averted on 29 March 2019 could happen all over again, next week.
These are the personal views of our consultant David Allen Green. For Brexit-related advice, please email us on Brexit@preiskel.com