Context

The Commons declined to approve the Government’s negotiated withdrawal agreement and framework for the future relationship on Tuesday 15 January 2019. That same day, Nick Boles presented a Bill, the European Union (Withdrawal) (No. 2) Bill 2017-19 (the Boles Bill). Those supporting that Bill have since revised their legislative proposals, and on Monday 21 January 2019 Yvette Cooper presented the European Union (Withdrawal) (No. 3) Bill 2017-19 (the Cooper Bill). This briefing paper relates to the Cooper Bill.

What is this Bill, and will it be debated?

This Bill is a Private Member’s bill, not having been introduced by the Government. Within the categories of Private Member’s bills, it is neither a Ballot bill nor a Ten Minute Rule bill. The Cooper Bill being a Presentation bill, limited opportunities exist for MPs to secure time for debate. Unlike a Ballot bill, it would not even be given priority for a Second Reading debate.

Should changes to the rules of the House be made, it is possible that this Bill could be allocated time for a debate on a Second Reading.

Relationship to the EU (Withdrawal) Act 2018

Section 13 of the EU (Withdrawal) Act 2018 (the Withdrawal Act) serves two purposes. First, it sets out Parliament’s role in ratifying a withdrawal agreement. Secondly, however, it sets out what role Parliament has if the Government fails to negotiate an agreement with the EU, or if the Commons decides to reject the deal the Government brings back.

The Cooper Bill supplements those two functions of the 2018 Act. If the Prime Minister has failed to secure an approval motion for her deal by 26 February 2019, the House of Commons would then have a role in extending the Article 50 TEU process.

What would the Cooper Bill do?

The Cooper Bill would restrict the Prime Minister’s discretion about whether and when to seek an extension to the two-year negotiating period under Article 50(3) TEU. On 26 February 2019 she would have to give the Commons the opportunity to insist that the Prime Minister seeks an extension. She would then be legally obliged to seek that extension if that is what the Commons says that it wants.

The process of asking the House of Commons would begin with the Prime Minister moving a statutory motion on 26 February 2019. It would say:

That this House directs the Prime Minister to seek an extension of the period of two years specified in Article 50(3) of the Treaty on European Union to a period ending on 31 December 2019.

If the House adopts a resolution under this Bill instructing the Prime Minister to seek an extension to Article 50, legally she must then request it. If a resolution says anything beyond that, the Prime Minister must “seek to give effect to” its terms.

Why is it just an instruction to “seek” an extension?

The two-year period under Article 50(3) cannot be extended unilaterally. Even if the Prime Minister “requests” an extension, it can only happen by way of a “unanimous decision” of the European Council. Although this Bill contemplates an extension to 31 December 2019, any extension, and any new date of withdrawal, would need to be agreed to by the Governments of all 27 other Member States of the EU.