KNOWLEDGE

Brexit in 10 days? - A Lot Can Happen in 10 days……

Morton Fraser Director of Public Law Lynda Towers
Author
Lynda Towers
Director of Public Law
PUBLISHED:
21 October 2019
Audience:
category:
Blog

"Super Saturday" in Westminster may not have lived up to all the anticipated hype raised by those in favour of Brexit as the culmination of the Prime Minister's successful delivery of a Brexit agreement and ultimately meeting his promised exit date of 31 October, "no ifs or buts".

There were a few "party poopers" at the celebration, starting with Sir Oliver Letwin and his motion to delay approval of the deal in principle until such time as Westminster had seen, approved and implemented this detailed and politically complex legislation. In normal times that would have been the accepted approach. The members of the DUP did not like what they had been told of the new arrangements to put a border in the Irish Sea for goods going to Ireland through Northern Ireland and the fact they would not be able to veto that arrangement in the future. The hated backstop may have gone but the new arrangement was no better in their eyes. They announced they were not going to support the PM. Finally, in an unanticipated coincidence, it was the day arranged for tens of thousand of remain supporters to march through central London who took their chance to stop, chant and demonstrate outside the Houses of Parliament. They were not referred to by the members of the Government within the Commons Chamber.

The result of all of this was that the Prime Minister lost the vote, had to comply with the terms of the Benn Act and unwillingly sent the required letter to Donald Tusk asking for an extension to the UK departure period until 31 January 2020. He is still saying publically that the UK will be leaving on 31 October and he did not actually sign the required letter. He sent a further letter, which he did sign, saying that no extension is needed, which begs the legal question as to whether he is attempting to frustrate the purpose of the Benn Act. That may be a matter for the Court. However, Mr Tusk and the EU have accepted the letter seeking the extension, signed or not, and will be consulting on the request, although perhaps not responding very quickly. After all there are 10 days left and a lot can happen in Westminster in those 10 days!

All of these developments were dismissed as "shenanigans" by Dominic Raab, the Foreign Secretary and the Government could still deliver everything required to leave by 31 October. However, Saturday's events could be very important for the Brexit project and make it much more difficult for the Prime Minister to deliver on time.

Speaker Bercow has now refused to allow the Government to hold a further vote on the Brexit deal today. He said to do so would be "repetitive and disorderly". While in accordance with his previous decisions on repeated votes on the same motion, this will not help the Government's plans and leaves them with little option but to progress the Bill as quickly as possible.

Why is the Withdrawal Agreement Bill so important? It was always known that there would be such a Bill since it must be passed by Parliament to ratify an international treaty arrangement, which is what Brexit and leaving the EU is in practice, irrespective of any vote agreeing the deal. This Bill has not yet been published but is likely to be a large and complex Bill with numerous sections which in normal circumstances would have been expected to take several months to wind its way through the House of Commons and the House of Lords. Hours of debate and many amendments would have been anticipated to make sure it all works. The Government still think they can get it through before 31 October but that is going to be a tall order.

The opposition are already planning amendments to the Bill around customs union provisions, second referendums, people's votes and no doubt other matters they are as yet keeping to themselves. Even this morning, the Brexit Secretary gave evidence to a Commons Committee that goods leaving Northern Ireland to go to the UK will require to be accompanied by an export declaration which was  not needed before and, for the DUP, this is not "unfettered access to the GB market". More detailed questions are bound to emerge during the passage of the Bill. It remains to be seen if working every day, including weekends and evenings will be enough to complete the legislation, not to mention suspending the standing orders which normally apply to certain aspects of this kind of Bill's consideration. Not giving committees time to consider the terms of the Bill will also be controversial.

There are always dangers legislating at speed in a complex area of law and administration, even recognising the Government's political imperatives. MEPs at the European Parliament have decided to await developments on approval of the legislation in Westminster before scheduling their ratification vote, which is a necessary step in the agreement process. The Court of Session judges in Edinburgh were asked in the latest court challenge to rule on whether the Prime Minister had complied fully with the terms of the Benn Act in sending the letters, signed and unsigned to Mr Tusk, but they have decided to wait and see what happens too. They will no doubt have taken account of the fact that the EU have acted on the letters, at least by way of initiating consultations.

However, the days from now leading up to 31 October are promising to be truly "interesting" in the Confucius sense. Once again viewing numbers will be up for the Parliament Channel. However, what the world, never mind UK citizens, will think about Parliamentary democracy and courtesy in the Mother of Parliaments by 31 October is anybody's guess.

Disclaimer

The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers.  Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.