Brexit Brief Newsletter

March 2019

This month’s issue captures the main events of the last five weeks in what has been a hectic period for Brexit news. Read more on the latest events in Parliament and the series of votes on the Withdrawal Agreement as well as the extensions to the Article 50 process. We also have an update on the progress of Brexit legislation.  So if you want to know the difference between MVs, IVs and flextensions then look no further.

 

GOVERNMENT SETS UP ADVISORY PANELS TO WORK ON BACKSTOP ALTERNATIVES

The Government has established three advisory panels made up of trade and customs experts;  business; and trade union representatives who have been tasked with examining alternative arrangements to prevent a hard border on the island of Ireland.

The Prime Minister speaking in the House of Commons on 26 February said “… the UK and EU have agreed to consider a joint work-stream to develop alternative arrangements to ensure the absence of a hard border in Northern Ireland. This work will be done in parallel with the future relationship negotiations and is without prejudice to them.”  The establishment of these three groups will support the UK’s activity on this work-stream.

The three groups will be;

  • An advisory group of technical experts in trade and customs, expected to include academics and customs brokers
  • A business and trade union engagement group to represent firms trading with the EU and the rest of the world
  • A parliamentary engagement group to allow Government to consult with MPs and peers

The Government will spend an additional £20 million to support the development of ideas which emerge from the work.

A spokesman from the Department for Exiting the EU said “There is clear support for finding alternative arrangements to ensure there is no hard border on the island of Ireland.  In adding business and technical expertise on top of civil service resource, we will ensure we are strengthening the Government’s efforts to identify the necessary facilitations and technologies.

The creation of these advisory groups now will mean that we can move at pace once negotiations with the EU begin.”

 

SCOTTISH VIEWS ON DEVELOPMENT OF COMMON FRAMEWORKS

Giving evidence to the Scottish Parliament’s Finance and Constitution Committee on 27 February on the development of UK wide ‘common frameworks’ where EU and devolved law currently intersect, Cabinet Secretary Mike Russell said “Discussions on frameworks have been conducted at official level, overseen by the joint ministerial committee on EU negotiations...  Initial framework outlines in six areas were considered by the JMC(EN) in October 2018...fisheries; animal health and welfare; nutrition; hazardous substance planning; food and feed safety and hygiene; and public sector procurement...

That work is being taken forward by agreement and is without prejudice to the views of ministers.... Officials are now turning their attention to the frameworks in the non-legislative category. Work continues on the cross-cutting issues that are required to be worked through in order for frameworks to be finalised in the areas of domestic governance, international obligations, trade, the internal market and, where appropriate, future funding. We are committed to continuing to work collaboratively on developing those frameworks in specific areas, but, of course, we remain resolutely opposed to section 12 of the European Union (Withdrawal) Act 2018, and we will not discuss a framework if a restriction is imposed on devolved powers.

On the timescales, the Cabinet Secretary said “It was never the intention that frameworks would be in place by exit day, and, although there is a connection with the necessity for various pieces of legislation to be in place for exit day, that is only a connection and not an absolute link. Frameworks remain discrete longer-term arrangements that are to be put in place post-Brexit. They will be agreed only when there is clarity about the UK’s final agreement, the future relationship with the EU and the situation in Northern Ireland. The progress on frameworks will therefore continue until the end of the implementation period, if that is December 2020— although, again, that is absolutely up for grabs.”

The Committee Convenor Bruce Crawford asked “... if we leave with no deal and no common framework in place on 29 March, how can that internal market operate successfully?”

Michael Russell: “That is an excellent question. I have no answer to it and nor does the UK Government. We have not seen statutory instruments that would give us the answer to that or to lots of other things. For example, we have not seen statutory instruments on possible tariffs after 29 March. Presumably, we would be in a position in which the UK Government would attempt to impose. I hope that that would not be the case, because we would not co-operate.”

 

SIMULTANEOUS VOTE IN WELSH ASSEMBLY AND SCOTTISH PARLIAMENT ON NO DEAL BREXIT

On 5 March 2019, the Scottish Parliament and National Assembly for Wales both conducted debates on Brexit. The motion proposed that each legislature:

  1. Reiterates its opposition to the damaging EU exit deal agreed by the UK Government.
  2. Agrees that a no-deal outcome to the current negotiations on EU withdrawal would be completely unacceptable on 29 March 2019 or at any time.
  3. Calls on the UK Government to take immediate steps to prevent the UK leaving the EU without a deal, and further agrees that the Article 50 process should be extended so that agreement can be reached on the best way forward to protect the interests of Wales, Scotland and the United Kingdom as a whole.

The motion was agreed by the Scottish Parliament (for 87, against 29, abstentions 1) and the National Assembly for Wales (for 37, against 13, abstentions 0).

Following the vote, the First Ministers of Scotland and Wales made a joint statement:

“Today, for the first time in the 20-year history of devolution, the National Assembly for Wales and the Scottish Parliament, voted simultaneously to oppose a damaging no deal Brexit. The vast majority of Members across both Chambers voted in agreement that a no deal outcome would be completely unacceptable and that an extension to Article 50 is the best way forward to protect Wales, Scotland and the UK as a whole.

...Today we have come together to set out our clear opposition to the actions being taken by the UK Government. Next week the Prime Minister and the UK Parliament must show they have listened, rule out no deal at any time and request an immediate extension of Article 50.”

 

STRASBOURG STATEMENT

Following a last minute flight to Strasbourg on 11 March to meet with European Commission President Jean-Claude Juncker and chief Brexit negotiator Michel Barnier, the Prime Minister returned with three documents:

The Prime Minister claimed that the new documents address MPs concerns on the indefinite nature of the backstop and urged MPs to back the "improved deal".

Making a statement following the agreement with the EU, the Prime Minister described the three “legally binding changes” to the deal “First, a joint instrument with comparable legal weight to the Withdrawal Agreement will guarantee that the EU cannot act with the intent of applying the backstop indefinitely.

If they do, it can be challenged through arbitration and if they are found to be in breach the UK can suspend the backstop.

The joint instrument also gives a legal commitment that whatever replaces the backstop does not need to replicate it. And it entrenches in legally-binding form the commitments made in the exchange of letters with Presidents Tusk and Juncker in January.

Second, the UK and the EU have made a joint statement in relation to the Political Declaration. It sets out a number of commitments to enhance and expedite the process of negotiating and bringing into force the future relationship.

And it makes a legal commitment that the UK and the EU will begin work immediately to replace the backstop with alternative arrangements by the end of December 2020.

There will be a specific negotiating track on alternative arrangements from the very start of the next phase of negotiations. It will consider facilitations and technologies – both those currently ready and emerging.

The UK’s position will be informed by the three domestic groups announced last week – for technical experts, MPs, and business and trade unions.

Third, alongside the joint instrument on the Withdrawal Agreement, the United Kingdom Government will make a Unilateral Declaration that if the backstop comes into use and discussions on our future relationship break down so that there is no prospect of subsequent agreement, it is the position of the United Kingdom that there would be nothing to prevent the UK instigating measures that would ultimately dis-apply the backstop.”

The Government laid documents before Parliament on 11 March 2019 :

(i) a statement that political agreement has been reached;

(ii) a copy of the negotiated withdrawal agreement;

(iii) a copy of the framework for the future relationship;

(iv) a joint statement supplementing the Political Declaration setting out the framework for the future relationship;

(v) a unilateral declaration; and

(vi) an instrument relating to the withdrawal agreement.

Speaking at a joint press conference with the Prime Minister, Commission President Jean-Claude Juncker said :

“The EU has spared no energy, time or commitment to clarify, reassure or explain what the Withdrawal Agreement is – and what it is not. We left no stone unturned. Our mind has always been open, our work always creative and our hand has always been outstretched.

It is in this spirit that today the Prime Minister and I have agreed on a joint legally binding instrument relating to the Withdrawal Agreement. This Instrument provides meaningful clarifications and legal guarantees on the nature of the backstop.

The backstop is an insurance policy – nothing more, nothing less.  The intention is not for it to be used like with every insurance policy.

And if it were ever to be used, it will never be a trap. If either side were to act in bad faith, there is a legal way for the other party to exit.

The Instrument which sets out these details has legal force while fully respecting the Guidelines the European Council has unanimously agreed. It complements the Withdrawal Agreement without reopening it. My team and I have been in constant contact with our Irish friends over the past days and over the last hours. The Taoiseach would be prepared to back this approach in the interests of an overall deal.

I have just informed the President of the European Council this evening and asked him to recommend that the European Council endorses this Joint Instrument – subject to a prior positive vote in the House of Commons on the Withdrawal Agreement.

In politics, sometimes you get a second chance. It is what we do with this second chance that counts. Because there will be no third chance. There will be no further interpretations of the interpretations; and no further assurances of the re-assurances – if the meaningful vote tomorrow fails.

Let us be crystal clear about the choice: it is this deal or Brexit might not happen at all.

Faced with this stark reality, Members of the House of Commons have a deep responsibility and fundamental choice to make.”

President Juncker subsequently wrote to the President of the EU Council Donald Tusk asking that the Council endorse the documents at the Council meeting of 21-22 March.  His letter also commented on the forthcoming European elections:

"I believe it is now high time to complete the withdrawal process in line with the wishes expressed by the Government of the United Kingdom and to move on, as swiftly as possible, to the negotiation of our future partnership. The Commission has taken all necessary measures in order to start preparatory talks with the United Kingdom immediately after the Withdrawal Agreement is signed. We hope that the United Kingdom is as ready and prepared for these important negotiations as we are.

Finally, I would like to stress that the United Kingdom's withdrawal should be complete before the European elections that will take place between 23-26 May this year. If the United Kingdom has not left the European Union by then, it will be legally required to hold these elections, in line with the rights and obligations of all Member States as set out in the Treaties."

 

WELSH GOVERNMENT PUBLISHES DRAFT CLAUSES FOR WITHDRAWAL AGREEMENT BILL

On 11 March, Welsh Brexit Minister, Jeremy Miles AM, published potential draft clauses for the UK Government’s anticipated Withdrawal Agreement Bill if the UK Government were to reopen the Political Declaration to seek a way forward on the UK’s withdrawal from the EU.

In the accompanying statement, he said “The purpose of our draft clauses is to illustrate how changes to the Political Declaration to reflect our policy objectives – above all, continued

participation in a customs union with the EU and the single market – could be anchored in the primary legislation which will be necessary to enact the Withdrawal Agreement in UK law. [...]

The draft clauses also provide for the National Assembly for Wales (and potentially the other

devolved legislatures) to shape the negotiations and for scrutiny by both the National Assembly and by Parliament of the final agreement(s) reached with the EU. Finally, they provide for a process of Parliamentary decision making if it becomes clear that negotiations with the EU have reached an impasse.”

 

ATTORNEY GENERAL’S LEGAL OPINION

On 12 March, Attorney General Geoffrey Cox published his legal opinion on the Joint Instrument and Unilateral Declaration concerning the Withdrawal Agreement which were published on 11 March.   He concluded:

“ I now consider that the legally binding provisions of the Joint Instrument and the content of the Unilateral Declaration reduce the risk that the United Kingdom could be indefinitely and involuntarily detained with the Protocol's provision at least in so far as that situation had been brought about by the bad faith or want of best endeavours of the EU.

It may be thought that if both parties deploy a sincere desire to reach agreement and the necessary diligence, flexibility and goodwill implied by the amplified duties set out in the Joint Instrument, it is highly unlikely that a satisfactory subsequent agreement to replace the Protocol will not be concluded. But as I have previously advised, that is a political judgment, which, given the mutual incentives of the parties and the available options and competing risks, I remain strongly of the view it is right to make.

However, the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise, the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol's arrangements, save by agreement.”

Giving a statement to the House of Commons on 12 March on this legal opinion, Mr Cox said

 “… [these documents] are not about a situation where, despite the parties properly fulfilling the duties of good faith and best endeavours, they cannot reach an agreement on a future relationship. Such an event, in my opinion, is highly unlikely to occur, and it is in the interests of both the United Kingdom and the European Union to agree a future relationship as quickly as possible. Let me make it clear, however, that were such a situation to occur, the legal risk, as I set it out in my letter of 13 November, remains unchanged. The question for the House is whether in the light of these improvements, as a political judgment, it should now enter into those arrangements.

Let me move on to what the documents do achieve. As I set out in my opinion, the joint instrument puts the commitments in the letter from Presidents Tusk and Juncker of 14 January 2019 into a legally binding form, and provides, in addition, useful clarifications, amplifications of existing obligations, and some new obligations. The instrument confirms that the European Union cannot pursue an objective of trying to trap the UK in the backstop indefinitely. It makes explicit that that would constitute bad faith, which would be the basis of a formal dispute before an arbitration tribunal. That means, ultimately, that the protocol could be suspended if the European Union continued to breach its obligations.

The joint instrument also reflects the United Kingdom’s and the Union’s commitment to work to replace the backstop with alternative arrangements by December 2020, including as set out in the withdrawal agreement. Those commitments include establishing

“immediately following the ratification of the Withdrawal Agreement, a negotiating track for replacing the customs and regulatory alignment in goods elements of the protocol with alternative arrangements.” ​

If an agreement has not been concluded within one year of the UK’s withdrawal, efforts must be redoubled…….

Let me now turn to the unilateral declaration. It records the United Kingdom’s position that, if it were not possible to conclude a subsequent agreement to replace the protocol because of a breach by the Union of its duty of good faith, it would be entitled to take measures to disapply the provisions of the protocol in accordance with the withdrawal agreement’s dispute resolution procedures and article 20, to which I have referred. There is no doubt, in my view, that the clarifications and amplified obligations contained in the joint statement and the unilateral declaration provide a substantive and binding reinforcement of the legal rights available to the UK in the event that the Union were to fail in its duties of good faith and best endeavours.”

 

MEANINGFUL VOTE 2

The House of Commons voted on 12 March 2019 on the Prime Minister’s agreement following her negotiations with the EU. 

In her statement to the House, the Prime Minister commented on the backstop “I have talked in detail about the backstop many times in speeches and statements in this House and in Northern Ireland. I have explained why an insurance policy to guarantee no hard border between Ireland and Northern Ireland is necessary. I know that there are a number of concerns about how it might operate—none greater than the fear that the EU might seek to trap us in it indefinitely.

Along with the Attorney General and the Brexit Secretary, I fought hard and explored every idea and avenue to address these concerns, including a time limit, a unilateral exit mechanism or the replacement of the backstop with alternative arrangements. However, the House knows how complex negotiations work and, ultimately, we have to practise the art of the possible, and I am certain that we have secured the very best changes that were available.”

Commenting on the three new elements to the deal on the backstop, the Prime Minister said:

“…first is a joint instrument—not a further exchange of letters, but something with comparable legal weight to the withdrawal agreement. It provides a new, concrete, legally binding commitment that the EU cannot act with the intent of applying the backstop indefinitely. Doing so would breach the EU’s obligations under the withdrawal agreement and could be challenged through ​arbitration. Were the EU to be found in breach, the UK could ultimately choose to suspend the backstop altogether, with that suspension lasting unless and until the EU came into compliance with international law. In these circumstances, we could also take proportionate measures to suspend the payments of the financial settlement.

Just as important, the joint instrument gives a legal commitment that whatever replaces the backstop does not need to replicate it, providing it meets the underlying objectives of no hard border between Northern Ireland and Ireland…………….

The second element, the statement in relation to the political declaration, sets out a number of commitments to enhance and speed up the process of negotiating and bringing into force the future relationship. There is a new commitment that the negotiating track on alternative arrangements will consider not only existing facilitations and technologies, but also those emerging………………….

Thirdly…. the United Kingdom Government will make a unilateral declaration relating to the temporary nature of the backstop. Such declarations are commonly used by states alongside the ratification of treaties. The declaration clarifies what the UK could do if it was not possible to conclude an agreement that superseded ​the protocol because the EU had acted contrary to its obligations. In those circumstances, the UK’s understanding is that nothing in the withdrawal agreement would prevent us from instigating measures that could ultimately lead to the disapplication of our obligations under the protocol. Were we to take such measures, the UK would remain in full compliance with its obligations under the Belfast-Good Friday agreement and to avoid a hard border on the island of Ireland.”

The Prime Minister went on to make some specific points about Northern Ireland “I want to set out further commitments today on protections for Northern Ireland and its integral place in the United Kingdom.

First, the Government will legislate to give a restored Northern Ireland Assembly a vote on a cross-community basis on whether the backstop should be brought into force if there are delays in the trade talks. If Stormont does not support that, Ministers will be bound to seek an approach that would achieve cross-community support. That could, for example, be an extension of the implementation period. It has previously been the case that the understanding was that the choice would be between the backstop and the implementation period. The introduction of alternative arrangements, of course, brings another element into that, but there is that key commitment in relation to the Northern Ireland Assembly. If Stormont were to support an implementation period as the alternative, Ministers would be bound to seek an extension of the implementation period, assuming that that had achieved cross-community support.

Secondly, we will maintain the same regulatory standards across the United Kingdom for as long as the backstop is in force. This is a commitment that we have already made, but I can now tell the House that we will legislate to make this legally binding.

Thirdly, the Government will legislate to prohibit any expansion of north-south co-operation through the withdrawal agreement. That will remain a matter for the Northern Ireland Executive and Assembly in line with the Belfast agreement. At every stage of these negotiations, my determination has been to deliver a deal that works for every part of the United Kingdom, and that includes Northern Ireland.”

The Commons Speaker John Bercow did not select any of the amendments that had been tabled by MPs to the Government motion.  The agreement was defeated by 391 votes to 242.

Responding to the outcome of the vote, the Prime Minister said “…I profoundly regret the decision that this House has taken tonight. I continue to believe that by far the best outcome is that the United Kingdom leaves the European Union in an orderly fashion with a deal, and that the deal we have negotiated is the best, and indeed the only, deal available, but I would like to set out briefly how the Government mean to proceed.

Two weeks ago I made a series of commitments from this Dispatch Box regarding the steps we would take in the event that this House rejected the deal on offer. I stand by those commitments in full. Therefore, tonight we will table a motion for debate tomorrow to test whether the House supports leaving the European Union without a deal on 29 March. …. Just like in the referendum, there are strongly held and equally legitimate views on both sides. For that reason, I can confirm that this will be a free vote on this side of the House.

…… But let me be clear: voting against leaving without a deal and for an extension does not solve the problems that we face. The EU will want to know what use we mean to make of such an extension, and this House will have to answer that question. Does it wish to revoke article 50? Does it want to hold a second referendum? Or does it want to leave with a deal, but not this deal? These are unenviable choices, but thanks to the decision that the House has made this evening, they are choices that must now be faced.”

Following the outcome of the vote, the EU’s chief Brexit negotiator Michel Barnier tweeted:

A spokesman for European Council president Donald Tusk echoed that message, saying it was "difficult to see what more we can do".

Taoiseach Leo Varadkar issued a statement following the vote.  He said “…… In discussions with the UK, the Government has worked hand in hand with our EU partners and the EU institutions, including the Commission and Michel Barnier’s Task Force. 
 
In that work, we have insisted that the Withdrawal Agreement could not be rewritten, and that the backstop arrangement, while intended to be temporary, must continue to apply unless and until it is replaced by future arrangements that can achieve the same objective, namely no hard border.
 
However, we have also said that we were prepared to offer guarantees and further reassurances and to the UK of our good faith and intentions – indeed we have offered such reassurances on many occasions.
 
The Instrument agreed yesterday puts those assurances on a legal footing and represents an unambiguous statement by both parties of what has been agreed. 
 
It does not reopen the Withdrawal Agreement, or undermine the backstop or its application. 
 
It says that we will work together, in good faith, in pursuit of a future relationship that ensures that the objectives of the Protocol, particularly the need to avoid a hard border, are met.  
 
We are also committed to exploring alternatives in a timely way, in the event that the overall future relationship cannot be concluded in a satisfactory and timely manner.
 
But it does not call into question that the backstop will apply unless and until better arrangements are agreed, with all parties using good faith and best endeavours to that aim.
 
So the options to ensure avoidance of a hard border continue to correspond to those agreed as far back as the Joint Report of December 2017, which envisaged this being achieved by:

  1. a comprehensive future EU-UK relationship,
  2. specific solutions or,
  3. in the absence of agreed solutions, regulatory alignment, i.e. the backstop.

…………………… And regardless of the vote tonight, we have already secured a continuation of the Common Travel Area, free movement of people North and South and between Britain and Ireland. The right to live, work, study, access healthcare, housing, education, pensions and welfare in each other’s countries as though we were citizens of both. And this is particularly important for citizens, students, cross border workers and expatriates of both countries.

Irish citizens in Northern Ireland will of course continue to be citizens of the European Union no matter what happens…………”
  

GUIDANCE ON AVOIDING A HARD BORDER

On 13 March, the Government published guidance setting out is approach to avoiding a hard border between Northern Ireland and Ireland if the UK leaves the EU without a deal on 12 April.

“Today we are confirming a strictly unilateral, temporary approach to checks, processes and tariffs in Northern Ireland. This would apply if the UK leaves the EU without a deal on 12 April.

The UK Government would not introduce any new checks or controls on goods at the land border between Ireland and Northern Ireland, including no customs requirements for nearly all goods.

The UK temporary import tariff announced today would therefore not apply to goods crossing from Ireland into Northern Ireland.

We would only apply a small number of measures strictly necessary to comply with international legal obligations, protect the biosecurity of the island of Ireland, or to avoid the highest risks to Northern Ireland businesses - but these measures would not require checks at the border.

Because these are unilateral measures, they only mitigate the impacts from exit that are within the UK Government’s control. These measures do not set out the position in respect of tariffs or processes to be applied to goods moving from Northern Ireland to Ireland.”

 

COMMONS VOTE ON LEAVING WITHOUT A DEAL

On 13 March, in line with the Prime Minister’s commitments following the defeat of her deal the previous day, the House of Commons voted on leaving the EU without a deal. 

The wording of the motion was that “this House declines to approve leaving the European Union without a Withdrawal Agreement and a Framework for the Future Relationship on 29 March 2019; and notes that leaving without a deal remains the default in UK and EU law unless this House and the EU ratify an agreement.” 

The Speaker selected two amendments for debate - (a) in the name of Dame Caroline Spelman which rejects leaving with no deal in any circumstances and amendment (f) in the name of the Damian Green which calls on the Government to take a number of steps to minimise disruption in the event of no deal and an extension to enable more time for a managed no deal.

Dame Spelman’s amendment was passed by 312 votes to 308.

The motion as amended was agreed by 321 votes to 278.

On 13 March 2019, in response to the vote in the House of Commons on the Withdrawal Agreement, Michel Barnier in a statement at the European Parliament plenary session in Strasbourg said:

“Following these votes, it will be for the British Government to tell us – I hope positively – how it wishes to proceed, to finally bring together a constructive majority for a proposal. It is the UK’s responsibility to tell us what it wants for our future relationship, what its choice is, what its clear line is.

We must now ask that question before asking about any possible extension. Extending the negotiation: for what reason? The Article 50 negotiation is now over. We have the treaty. It is here.

We are in a very serious moment because the risk of no deal has never been higher, including an accidental no deal. I recommend that nobody underestimates this risk or its consequences.”

 

BREXIT SUPPORT GRANTS FOR BUSINESSES IN SCOTLAND

On 13 March, the Scottish Government announced a change to the grants it has made available to support businesses.  The Brexit Support Grant, administered by Scottish Enterprise, will now be available to help small and medium sized businesses manage a wide range of Brexit impacts with funding of up to £4000 each. The grant, previously only open to exporters, is now available to SME’s in Scotland for a wider variety of Brexit preparation.

The grant can be accessed by businesses employing up to 250 staff and can be used for activities including consultancy support, professional fees, external training, and international market research.

 

NO DEAL CONTINGENCY MEASURES ADOPTED BY EUROPEAN PARLIAMENT

On 14 March, the European Commission issued a statement welcoming the swift adoption by the European Parliament of a number of “no-deal” contingency measures to ensure that the EU is fully ready for a “no-deal” scenario on 29 March.

The proposals adopted include: ensuring for a limited period basic air, road and rail connectivity in a “no-deal” scenario, as well as allowing for continued reciprocal fishing access for EU and UK fisheries until the end of 2019 and for the provision of compensation to fishermen and operators in such a scenario.

Other proposals adopted include the continuation of the PEACE programme on the island of Ireland until the end of 2020, as well as protecting the rights of Erasmus+ participants in the event of a “no-deal” scenario, and certain social security entitlements of those people who exercised their right to free movement before the UK's withdrawal. Technical measures on ship inspections and the re-alignment North Sea – Mediterranean Core Network Corridor were also adopted.

The European Union has been preparing for a "no-deal" scenario since December 2017. To date, the Commission has tabled 19 legislative proposals. 17 proposals have been adopted or agreed by the Parliament and the Council. Formal adoption of all those files by the Council will take place shortly. Two proposals are still pending.

The statement said “…. the EU's contingency measures will not – and cannot – mitigate the overall impact of a "no-deal" scenario, nor do they in any way compensate for the lack of preparedness or replicate the full benefits of EU membership or the favourable terms of any transition period, as provided for in the Withdrawal Agreement. These proposals are temporary in nature, limited in scope and will be adopted unilaterally by the EU. They are not “mini-deals” and have not been negotiated with the UK.

In addition to this legislative work, the Commission has also intensified its work on proactively informing the public about the importance of preparing for a “no-deal” Brexit. The Commission has published 88 preparedness notices, along with 3 detailed Brexit Preparedness Communications. The Commission also stepped up its “no-deal” outreach to EU businesses …. The Commission's Deputy Secretary-General, Céline Gauer, and a team of Commission officials, have been visiting all capitals of the 27 EU Member States to provide any necessary clarifications on the Commission's preparedness and contingency action and to discuss national preparations and contingency plans. The visits so far have shown a high degree of preparation by Member States for all scenarios.”

 

COMMONS VOTE ON EXTENSION TO ARTICLE 50

On 14 March, the House of Commons debated whether the Government should request an extension to the Article 50 period. The motion read

“That this House:

(1)    notes the resolutions of the House of 12 and 13 March, and accordingly agrees that the Government will seek to agree with the European Union an extension of the period specified in Article 50(3);

(2)    agrees that, if the House has passed a resolution approving the negotiated withdrawal agreement and the framework for the future relationship for the purposes of section 13(1)(b) of the European Union (Withdrawal) Act 2018 by 20 March 2019, then the Government will seek to agree with the European Union a one-off extension of the period specified in Article 50(3) for a period ending on 30 June 2019 for the purpose of passing the necessary EU exit legislation; and

(3)    notes that, if the House has not passed a resolution approving the negotiated withdrawal agreement and the framework for the future relationship for the purposes of section 13(1)(b) of the European Union (Withdrawal) Act 2018 by 20 March 2019, then it is highly likely that the European Council at its meeting the following day would require a clear purpose for any extension, not least to determine its length, and that any extension beyond 30 June 2019 would require the United Kingdom to hold European Parliament elections in May 2019.”

The Speaker selected four amendments to the motion, all of which were defeated.  The motion as worded passed by 412 votes to 202.

With reference to an extension, EU Council President Donald Tusk tweeted:

 

 

SPEAKER’S RULER ON MV3

On 18 March, the Speaker of the House of Commons, John Bercow made a statement in relation to the Government bringing forward a motion for another meaningful vote. The Speaker referred to a point of order raised on 13 March by Angela Eagle MP (Lab) on whether it would be proper for the Government to keep bringing the same deal back to the House ad infinitum.  The Speaker referred to the conventions of the Commons which state that “A motion or an amendment which is the same, in substance, as a question which has been decided during a session may not be brought forward again during that same session.”

Referring to the possibility of a further meaningful vote, the Speaker said “… if the Government wish to bring forward a new proposition that is neither the same nor substantially the same as that disposed of by the House on 12 March, that would be entirely in order. What the Government cannot legitimately do is to resubmit to the House the same proposition or substantially the same proposition as that of last week, which was rejected by 149 votes. This ruling should not be regarded as my last word on the subject; it is simply meant to indicate the test which the Government must meet in order for me to rule that a third meaningful vote can legitimately be held in this parliamentary Session.”

 

UK REQUESTS AN EXTENSION TO ARTICLE 50 PROCESS

On 20 March, the Prime Minister wrote to Donald Tusk, President of the European Council to request a three month extension of Article 50 to 30 June 2019.

The Prime Minister requested in her letter that the Council approve the supplementary documents published on 11 March in order to meet the requirements of the Speaker’s ruling of 18 March.

She outlined that ratification of a deal by Parliament and passage of the necessary legislation to enact the commitments of the Withdrawal Agreement would not be possible by 29 March and therefore requested an extension until 30 June 2019.

In a statement responding to the Prime Minister’s leader, Council President Donald Tusk said “I believe that a short extension will be possible, but it will be conditional on a positive vote on the Withdrawal Agreement in the House of Commons. The question remains open as to the duration of such an extension. Prime Minister May's proposal, of 30 June, which has its merits, creates a series of questions of a legal and political nature. Leaders will discuss this tomorrow. When it comes to the approval of the Strasbourg agreement, I believe that this is possible, and in my view it does not create risks. Especially if it were to help the ratification process in the United Kingdom….”

The Prime Minister gave a statement outside 10 Downing Street “…..It is now time for MPs to decide.

So today I have written to Donald Tusk, the President of the European Council, to request a short extension of Article 50 up to the 30 June to give MPs the time to make a final choice….

………I am not prepared to delay Brexit any further than 30 June.

Some argue that I am making the wrong choice, and I should ask for a longer extension to the end of the year or beyond, to give more time for politicians to argue over the way forward.

That would mean asking you to vote in European Elections, nearly three years after our country decided to leave. What kind of message would that send? And just how bitter and divisive would that election campaign be at a time when the country desperately needs bringing back together?

Some have suggested holding a second referendum.  I don’t believe that is what you want – and it is not what I want. We asked you the question already and you gave us your answer. Now you want us to get on with it.  And that is what I am determined to do.”

 

EUROPEAN COUNCIL AGREES TO ARTICLE 50 EXTENSION

The European Council of EU political leaders met on 21 March. The Prime Minister attended the start of meeting, but decisions were made in the European Council (Art. 50) configuration – i.e. the EU27 countries. 

The Council agreed to an extension of Article 50 based on two scenarios;

  • If the Withdrawal Agreement is approved by the House of Commons by 29 March 2019, then the period will be extended to 22 May 2019.
  • If the Withdrawal Agreement is not approved by the House of Commons by 29 March 2019, then the period will be extended to 12 April 2019.

The European Councils conclusions were:

  1. The European Council takes note of the letter of Prime Minister Theresa May of 20 March 2019.
  2. In response, the European Council approves the Instrument relating to the Withdrawal Agreement and the Joint Statement supplementing the Political Declaration agreed between the European Commission and the Government of the United Kingdom in Strasbourg on 11 March 2019.
  3. The European Council agrees to an extension until 22 May 2019, provided the Withdrawal Agreement is approved by the House of Commons next week. If the Withdrawal Agreement is not approved by the House of Commons next week, the European Council agrees to an extension until 12 April 2019 and expects the United Kingdom to indicate a way forward before this date for consideration by the European Council.
  4. The European Council reiterates that there can be no opening of the Withdrawal Agreement that was agreed between the Union and the United Kingdom in November 2018. Any unilateral commitment, statement or other act should be compatible with the letter and the spirit of the Withdrawal Agreement.
  5. The European Council calls for work to be continued on preparedness and contingency at all levels for the consequences of the United Kingdom’s withdrawal, taking into account all possible outcomes.
  6. The European Council will remain seized of the matter.

In his remarks following the Council meeting, President Donald Tusk said “…..The UK Government will still have a choice of a deal, no-deal, a long extension or revoking Article 50. The 12th of April is a key date in terms of the UK deciding whether to hold European Parliament elections. If it has not decided to do so by then, the option of a long extension will automatically become impossible.

As you know, in accordance with the Treaties, any extension must be decided unanimously by the EU27, in agreement with the Member State concerned. This is why I met Prime Minister May several times tonight – to make sure that the UK accepts the extension scenarios – and I am pleased to confirm that we have reached an agreement on this…”

 

DEBATE ON THE ‘STRASBOURG AGREEMENT’

On 25 March, the Prime Minister made a statement to the House of Commons on the so-called Strasbourg agreement – the result of the meeting of the EU Council on 21-22 March which provided for a short extension to the Article 50 process and approved the legal instrument and joint statement. 

The Prime Minister said “The Council formally endorsed the legal instrument relating to the withdrawal agreement and the joint statement supplementing the political declaration. This should increase the confidence of the House that the backstop is unlikely ever to be used, and would only be temporary if it is. But the Council also reiterated, once again, its long-standing position that there could be no reopening of the withdrawal agreement. So however the House decides to proceed this week, everyone should be absolutely clear that changing the withdrawal agreement is simply not an option.”

Commenting on the extension of Article 50, the Prime Minister said

“…the Council agreed that if the House approves the withdrawal agreement this week, our departure will be extended to 11 pm on 22 May. This will allow time for Parliament to pass the withdrawal agreement Bill, which is legally necessary for the deal to be ratified. But if the House does not approve the withdrawal agreement this week, our departure will instead be extended only to 11 pm on 12 April. At this point, we would either leave with no deal, or we would “indicate a way forward before this date for consideration by the European Council”.

If that involved a further extension, it would certainly mean participation in the European parliamentary elections.

The Council’s conclusions were subsequently turned into a legal decision, with which the UK agreed and which came into force last Friday. So although the Government have today laid a statutory instrument, which will be debated later this week, to reflect that decision in our own domestic legislation, the date for our departure from the EU has now changed in international law.”

This change of exit day means that the repeal of the European Communities Act 1972 and other provisions of the EU (Withdrawal) Act which require commencement dates will be delayed.

Following the Prime Minister’s statement, the House of Commons voted on the Government’s motion taking note of the statement and the plan to extend Article 50.  MPs voted in favour of an amendment laid by Oliver Letwin MP (Con) to secure parliamentary time to debate and vote on alternative ways forward” – i.e. vote on a number of options for the future UK-EU relationship – the so called indicative votes (IVs).   

When making her statement, the Prime Minister had referred to the indicative vote process “I must confess that I am sceptical about such a process of indicative votes. When we have tried this kind of thing in the past, it has produced contradictory outcomes or no outcome at all. There is a further risk when it comes to Brexit, as the UK is only one half of the equation and the votes could lead to an outcome that is unnegotiable with the EU. No Government could give a blank cheque to commit to an outcome without knowing what it is, so I cannot commit the Government to delivering the outcome of any votes held by the House, but I do commit to engaging constructively with the process.”

Three Government Ministers resigned in order to back the Letwin amendment. The departures of Richard Harrington (Business Minister), Alistair Burt (Foreign Office Minister) and Steve Brine (Health Minister) means a total of 34 ministers have resigned in the past 12 months.

 

DATA ON NORTHERN IRELAND TRADE

On 26 March, the Northern Ireland Research and Statistics Agency (NISRA) published an overview of Northern Ireland trade providing analysis of current trade with Great Britain, Ireland, the rest of the EU, and the Rest of the World.

Amongst other things, the data shows that in 2017, Northern Ireland sales to GB were worth 1.1 times more than all sales outside the UK and 2.9 times more than NI exports to the Republic of Ireland.  The Republic of Ireland remains Northern Ireland’s single largest export market. 

With regard to cross border supply chains, there are over 1 million cross-border deliveries per annum and nearly three quarters of export deliveries are made by small businesses.

 

INDICATIVE VOTE 1

On 27 March, MPs approved the motion which set out the process for the holding of the indicative votes and also agreed that future time for debate should be set aside on Monday 1 April. The Speaker selected eight Brexit options on which MPs could vote.  Each of the options were rejected by MPs.

On 27 March, MPs also approved the statutory instrument - The European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019 - which changed the date for the UK to exit the day. Previously the 29 March 2019 had been included in the EU (Withdrawal) Act. Following the negotiations with the EU, the term of extension for Article 50 means the UK is now due to leave the EU on 12 April 2019.  The Government published a note on the parameters of extending Article 50.

 

MEANINGFUL VOTE 2.5

On 29 March, MPs held what was referred to as MV2.5 – a vote on the Withdrawal Agreement.  This was not another meaningful vote as MPs were voting solely on the Withdrawal Agreement and not on both the Withdrawal Agreement and Political Declaration together (which is the requirement under the term of the EU Withdrawal Act). 

Shadow Brexit Secretary Sir Keir Starmer told the BBC's Today programme: "Take the political declaration off and it is completely blind - you have no idea what you are really voting for."

The EU has previously indicated that they are willing to renegotiate aspects of the Political Declaration which concerns future issues.

This decoupling of the two documents, the Withdrawal Agreement and the Political Declaration, meant the vote was ‘substantially different’ to the previous meaningful votes and therefore did not contravene the previous ruling by the Speaker, John Bercow, on asking the House to vote again on the same question.

MPs again rejected the Withdrawal Agreement by 344 votes to 286 – a margin of 58. There were 34 Tory rebels and 5 Labour rebels

 

THE INDEPENDENT GROUP TO STAND IN EUROPEAN PARLIAMENT ELECTIONS

On 29 March, The Independent Group issued a statement that it has applied to register as a political party - ‘Change UK – The Independent Group’ - in order to stand candidates in any European elections that come about as a result of a long extension of the Article 50 process.  The Electoral Commission has advised that should the UK Government decide to hold these elections polling day will most probably be on Thursday 23 May, with close of nominations for MEP candidates falling on Wednesday 24 April.

Heidi Allen, the MP for South Cambridgeshire, has been appointed to become Interim Leader of the new party for the purposes of EC registration until the election of a permanent leader at an inaugural conference in September, when the main launch of the new party will take place.

INDICATIVE VOTE 2

On 1 April, the second stage of the indicative votes process (IV2) took place in the Commons in order to identify if there is a Brexit option which could secure majority support.  Again, there was no majority in the House of any of the options.

37 Conservative Party MPs voted for the customs union plan, compared with 236 against, and 33 Tories backed staying in the single market, with 228 against.

 

SPEECH BY MICHEL BARNIER ON BREXIT EXTENSION AND BORDER CHECKS

Speaking at a European Policy Centre event “Deal or no deal? The state of play on Brexit” on 2 April, chief Brexit negotiator Michel Barnier said “No deal was never our desired nor intended scenario. No deal was never my intended scenario, but the EU 27 is now prepared. It becomes day after day more likely……. Let's not forget first that we have already an agreement, we have already a deal, and it was concluded by Theresa May and the British Government and the European Council and European Parliament on November 25 last year, four months ago."

"We tried to make sure that the UK could leave the EU on March 29, just as the UK had foreseen itself... If the UK still wants to leave the EU in an orderly manner, this agreement, this treaty is and will be the only one."

"If the UK Government does not vote in favour of the withdrawal agreement in the coming days, then only two options would remain: leaving without an agreement or requesting a longer extension of the Article 50 period," he said.

"It would be the responsibility of the UK Government to choose between these two options."

But he warned that such an extension would not automatically be granted by the other 27 EU leaders when they meet at an April 10 emergency summit.

"Such an extension would carry significant risks for the EU, therefore a strong justification would be needed. Many businesses in the EU warn us against the cost of extending uncertainty," he said.

"There would also be a political cost. If the UK is still a member state on May 23 it will have to organise elections," he said, referring to the upcoming European Parliamentary vote.

With regards to checks on the border, he said “We’re working with Irish Government to know where we can apply these checks.”

“We have to implement everywhere, at each and every external border of the EU three types of controls to protect consumers, food security, animal disease, to protect the budgets of the EU and national budgets, so the fiscal controls for VAT and customs controls, and serve to protect businesses against counterfeiting and ensure the goods entering the EU are meeting standards.

“This is the pre-condition to avoid any kind of controls inside the single market. That’s why we need to find the way somewhere to implement the checks. We’re working with the Irish Government to know where we can apply these checks but I will not elaborate on this point today.”

 

COOPER-LETWIN BILL TO FORCE VOTE ON ARTICLE 50

Yvette Cooper (Lab) presented a new Bill on 2 April which would require the Prime Minister to come forward with a plan to extend article 50 which MPs would vote. 

Sir Oliver Letwin (Con), who is supporting this Bill, said “This is a last-ditch attempt to prevent our country being exposed to the risks inherent in a no-deal exit. We realise this is difficult. But it is definitely worth trying.”

If approved the European Union (Withdrawal) (No. 5) Bill would provide that:

  • The day after the Bill receives royal assent, the Government must ask MPs to pass a motion to extend Article 50 again
  • The date of extension is not specified in the Bill – it is up to the Government to insert the new proposed exit date
  • If the Bill is passed unamended, the Government must ask EU for that extension
  • MPs could amend the Bill to insert/specify the exit date itself, taking power away from Government to decide for itself
  • If the European Council proposes its own extension, Government must put that date to MPs

Before voting on the business motion on whether to take all stages of the Bill in one day, the House voted on an amendment laid by Labour MP Hilary Benn which would have provided for the possibility of indicative votes on Monday 8 April.  The result was a tied vote with 310 ayes and 310 noes.  The Speaker John Bercow had to make a casting vote and as is the precedent for such tied votes, he voted with the Government position and  the motion was therefore defeated 311 votes to 310.

The House then voted on whether to deal with the Bill in one day and the House agreed by a majority of one – 312 ayes to 311 noes.  Following a debate on the Bill and a series of amendments, the House agreed the Bill’s third reading by a majority of one -  313 ayes to 312 noes.  All stages of the Bill were passed by the Commons in six hours. 

The House of Lords debate on the Bill began on 4 April where the Bill was approved at second reading without a vote.  The remaining stages of the Bill will be held on 8 April.

 

PM PROPOSES CROSS PARTY TALKS TO BREAK THE BREXIT IMPASSE

Making a statement on 2 April from 10 Downing Street following a seven hour Cabinet meeting, the Prime Minister proposed meeting with Labour leader Jeremy Corbyn in an effort to break the Brexit impasse and find a plan for the future relationship with the EU which they would both stick to.

She said “The ideal outcome of this process would be to agree an approach on a Future Relationship that delivers on the result of the Referendum, that both the Leader of the Opposition and I could put to the House for approval, and which I could then take to next week’s European Council.

However, if we cannot agree on a single unified approach, then we would instead agree a number of options for the Future Relationship that we could put to the House in a series of votes to determine which course to pursue.

Crucially, the Government stands ready to abide by the decision of the House.

But to make this process work, the Opposition would need to agree to this too.

The Government would then bring forward the Withdrawal Agreement Bill. We would want to agree a timetable for this Bill to ensure it is passed before 22nd May so that the United Kingdom need not take part in European Parliamentary Elections.”

The first discussions between the Prime Minister and the Labour leader took place on 3 April and were followed by further cross party talks in the subsequent days between negotiating teams from the Conservative and Labour parties.

 

PM REQUESTS ANOTHER EXTENSION

On 5 April, the Prime Minister wrote again to Council President Donald Tusk to request a further extension of Article 50 to 30 June. The Prime Minister’s previous request for an extension to 30 June was rejected at the March EU Council meeting where a shorter extension period was agreed instead.

A decision on the new request from Mrs May will be taken at the special EU summit meeting scheduled for 10 April.  The new session of the European Parliament begins at the start of July so in theory UK MEPs wouldn’t have to take their seats if the deal is agreed by 30 June.

It has been reported that Council President Donald Tusk will encourage the EU27 to offer the UK a one-year flexible extension – the so-called ‘flextension’ - with the option to leave earlier if the withdrawal agreement is ratified by Parliament.   Such an offer must be agreed unanimously by the EU27 at the 10 April summit and it’s not certain that this will be the case.

 

BREXIT LEGISLATION

As at 29 March 2019, the Government has laid 505 Statutory Instruments (SIs) before Parliament to prepare the statute book for exit day. 95% of the time available to lay the SIs before the revised exit day of 12 April has now elapsed; but only 84% of the minimum number of SIs the Government says are needed for Brexit have been laid before Parliament. 

Of the 505 Brexit SIs laid before Parliament so far, 382 (76%) have completed their passage through Parliament.

Assembly Research and Information Services has launched a tool to track Brexit related statutory instruments relevant to Northern Ireland.

The Government is introducing a suite of legislation to deal with Brexit.  A summary of the status of some of this legislation is below. A full list of Bills before Parliament is available here

Acts of Parliament (i.e. are now law)

  • EU (Withdrawal) Act 2018
  • Haulage Permits and Trailer Registration Act 2018
  • Healthcare (European Economic Area and Switzerland Arrangements) Act 2019
  • Nuclear Safeguards Act 2018
  • Sanctions and Anti-Money Laundering Act 2018
  • Taxation (Cross-border Trade) Act 2018

 

SO WHAT’S NEXT?

April 10: Special meeting of the European Council to discuss the latest Brexit developments

April 12: Deadline for the Prime Minister to let the EU know her plan should the Withdrawal Agreement have been rejected by Parliament.

April 16: House of Commons rises for Easter recess*

April 18: Dissolution of the European Parliament. This is relevant given that the EP has a role in ratification of the final deal and therefore could not do so until the start of its new session in July

April 23: House of Commons returns following Easter recess*

May 23-26: European Parliament elections. The UK is obliged under EU treaty to hold the elections otherwise it could face legal action.

July 2: European Parliament’s first session of new term begins

* Speaking in the Commons on 4 April, Leader of the House Andrea Leadsom indicated that “As colleagues will be aware, discussions between the two main parties on the subject of EU exit are ongoing. Subject to the progress of those talks, there is the possibility that business will alter…. but I would note that we will need to retain flexibility to potentially sit on Monday and Tuesday of that week—15 and 16 April—and I will, as always, endeavour to update the House about business as early as possible. In the same vein, it is likely that we may need to sit on Friday of next week, and I will update colleagues on this as early as possible next week.”