European Union: What Needs To Happen For The UK To Exit The EU?

Last Updated: 4 April 2019
Article by Paul Butcher and Tom Henderson

The Prime Minister has now officially requested an extension of the Brexit deadline to 30 June 2019 to enable her to bring the negotiated withdrawal deal (the legally binding Withdrawal Agreement and the Political Declaration on future relations) back to Parliament for a third 'Meaningful Vote'. The President of the European Council, Donald Tusk, responded that a short extension would be possible, but would be conditional on a positive vote on the withdrawal deal.

Assuming that an extension to 30 June 2019 (or whatever alternative date the EU agrees to) is agreed, what will need to happen for the UK to actually exit the EU? If the House of Commons approves the withdrawal deal in 'Meaningful Vote 3.0' there will be a series of further stages of approval and ratification at the UK and EU level before Brexit becomes official.

1. Amending "exit day" under UK law

In the immediate short term, assuming that an extension is agreed, there will need to be a swift amendment of the EU Withdrawal Act 2018 ("EWA"). At present Section 20(1) of the EWA defines "exit day" as 29 March 2019 at 11.00 pm GMT. At that point there will be a series of changes under the UK law, including the repeal of the European Communities Act 1972. If there is an extension of the Article 50 deadline, the definition of "exit day" will need to be amended prior to 11.00pm GMT on 29 March 2019 so as to avoid these changes taking place.

Section 20(4) EWA provides that amending "exit day" can be completed by statutory instrument ("SI") under the affirmative procedure. The affirmative procedure means that the relevant SI must be actively approved by both Houses of Parliament. An SI under the affirmative procedure will be debated in either a delegated committee or on the floor of the House. While the draft affirmative procedure is not subject to any particular deadline, it will need to be accelerated to ensure that the SI is completed before 29 March.

2. Meaningful Vote 3.0

The Prime Minister has confirmed her intention to bring the negotiated withdrawal deal back to the House of Commons for a third 'Meaningful Vote' as soon as possible. The plan to do so this week was scuppered by the Speaker of the House of Commons confirming on 18 March that under parliamentary rules in order for a further meaningful vote to be brought back to the House of Commons, the agreement would have to be "fundamentally different – not different in terms of wording, but different in terms of substance". At present it is unclear how the Government will respond. It is possible that an agreed extension to Article 50 could be sufficient to persuade the Speaker not to block 'Meaningful Vote 3.0'. The Speaker is likely to have to show some flexibility given that the rule he is relying on from Erskine May (the most authoritative work on parliamentary procedure and the constitutional conventions regarding the UK Parliament) applies to amendments just as much as to motions – and would therefore theoretically rule out further votes on all other options as well (eg on a second referendum, the UK proposing to join the EEA and so on).

In any event, if a majority in the House of Commons is in favour of a third 'Meaningful Vote', the vote is likely to happen as MPs could vote to suspend or change the "standing orders" of Parliament in order to bring the motion to a vote.

If the House of Commons approves the withdrawal deal, section 13(1)(c) of the EWA allows the House of Lords the opportunity to debate the deal for a period of up to five Lords sitting days beginning on the date that the House of Commons passes the resolution approving the deal. The House of Lords will not actually have a vote on the withdrawal deal.

See here for further information on how the 'Meaningful Vote' works.

3. Enshrining the deal in a UK statute

If the UK Parliament approves the withdrawal deal Section 13(1)(d) of the EWA requires there to be an Act of Parliament (the "EU Withdrawal Agreement Bill" or "EWAB") which contains provisions for implementation of the Withdrawal Agreement into UK law. This will include provisions which stipulate a legal basis for the transition period; ensure citizen's rights; provide for payment of monies to the EU; and defer most EU exit SIs made under the EWA and otherwise.

The EWAB is a constitutionally significant bill and therefore MPs will want time to debate it. Past bills to implement major EU treaties have taken between 10 and 40 sitting days to get through Parliament. More controversial treaties have tended to take longer. Unlike the approval motion for the withdrawal deal, the House of Lords will have a vote on the EWAB.

For further details on the EWAB see question 6 in the Withdrawal Agreement Q&A section of our Brexit Legal Guide.

4. Ratification in the UK

As the Withdrawal Agreement (but not the Political Declaration) is a treaty it must be laid before Parliament under the Constitutional Reform and Governance Act 2010 ("CRAG"). Section 20 of the CRAG allows Parliament 21 sitting days to vote against ratification of a treaty. If Parliament votes against the treaty, a Minister may lay before Parliament a statement that the treaty should nevertheless be ratified and will need to explain why. The House of Commons (but not the House of Lords) is then permitted a further 21 days to vote against ratification of the treaty. This means that, in theory, the Withdrawal Agreement could be blocked indefinitely by the House of Commons repeatedly passing motions to the effect that the treaty should not be ratified.

The requirements of the CRAG could be avoided if the Government includes a provision in the EWAB to say that its passage fulfils the requirements of the CRAG. Alternatively, section 22 of the CRAG enables the procedure to be avoided if a minister believes there is an exceptional case. There is no indication in the CRAG of what might constitute an exceptional case – the Government is free to designate anything as exceptional. The Government has not indicated that it intends to legislate to bypass the requirements of CRAG or designate this treaty an exceptional case.

5. Ratification in the EU

Article 50 (TEU) requires the European Council to agree the Withdrawal Agreement, acting by qualified majority (see below), after first having obtained the consent of the European Parliament. For the avoidance of doubt, the Council of the EU is not the same as the European Council. The European Council consists of the heads of the Member States and defines the overall political direction of the EU, including setting EU's mandate on the Brexit negotiations. The Council of the EU is one of the two legislative bodies in the EU (the other being the European Parliament), consisting of a minister from the relevant policy area from each Member State.

Once the UK Parliament ratifies the Withdrawal Agreement, the Council of the EU will submit it for approval by the European Parliament. The European Parliament needs to give its consent in a simple majority vote of members present. This will include MEPs from the UK. Given that the Withdrawal Agreement concerns a Member State's withdrawal from the EU, it falls within the category of special legislative procedures and as such ratification is completed via the consent procedure. Under this procedure, the European Parliament does not have the power to propose amendments to the Withdrawal Agreement.

Given the upcoming elections on 23 to 26 May 2019, the final sitting of the currently constituted European Parliament is scheduled for 18 April 2019. If the Withdrawal Agreement is not ready for ratification by that date however, according to the Rules of the Procedure of the European Parliament, it is still possible to recall the outgoing European Parliament until the first sitting of the new Parliament on 2 July 2019. This should ensure that it is still possible to consent to the Withdrawal Agreement after 18 April.

The Council of the EU (excluding the UK) then needs to approve the Withdrawal Agreement by a super qualified majority vote. A "super qualified majority" is defined as at least 72% of the members of the Council representing Member States comprising at least 65% of the population of the EU. This means at least 20 Member States will need to approve the Withdrawal Agreement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions