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Article 50

Can the UK Government keep its promise that the UK will leave the EU on 31 October?

Brexit has dominated the media again this week. With the UK and EU negotiators having ‘entered the tunnel’ in a final attempt to reach a deal prior to the 31 October deadline, the Government’s position remains that the UK will leave the EU on that date with or without a deal.

In this article we discuss the likelihood of the Government being able to keep that promise. Our conclusion is that it is improbable that the UK will leave the EU on 31 October, even if a deal is reached this week. In order to ratify a deal, Parliament would also have to approve the framework for the future relationship between the UK and the EU and also to pass an Act implementing the Withdrawal Agreement.  MPs are unlikely to remove the obligation on the Government to seek an extension without first having had the time to consider these important instruments. If there is no deal, then the Benn Act is likely to require the UK Government to seek a further extension to the Article 50 period, even if it does not wish to do so.

Can the UK Parliament stop a no-deal Brexit?

At the end of July we published a paper looking at the options available to Members of the UK Parliament (MPs) should they seek to prevent a no-deal Brexit on 31 October 2019. We discussed the scope for Parliamentary motions, amendments to existing legislation, the passing of new legislation and the “nuclear option” of a vote of no confidence (VONC).

In this paper, we provide an update on our analysis in light of developments in the last couple of weeks, in particular the UK Government’s announcement on 28 August that Parliament will be prorogued in the week commencing 9 September and will not reconvene until 14 October, and assess how likely it is that legal and political moves to prevent a no-deal Brexit will succeed. In particular, we consider the proposed legislation seeking to force the Government into agreeing an extension of the Article 50 period until 31 January 2020 and the Government’s threat to seek an early election if this legislation passes. Our conclusion is that both sides’ room to manoeuvre is constrained by existing legislation and procedural rules, and timing issues are now even more acute. As to the legal challenges brought against the UK Government concerning the prorogation of Parliament, these face a number of hurdles. In particular the court may be reluctant to rule on prerogative matters and the claimants may find it difficult evidentially to establish that such prerogative power was used for an improper purpose.

Can the UK Parliament stop a no-deal Brexit?

There are less than 100 days until 31 October 2019, when the UK will leave the European Union without a deal by default unless a deal or extension of time is agreed or the UK revokes its article 50 notice. The new UK Prime Minister, Boris Johnson, has announced that 31 October will be the UK’s departure date “do or die, come what may”, with or without a deal.

We have produced a publication that considers the options available to MPs to prevent the UK from leaving the EU on 31 October without a deal, and some of the very real difficulties facing them in achieving that objective. Our conclusion is that the options open to MPs are quite limited and that this reinforces the need for businesses to ramp up their no-deal preparations.


It's (Article) 50/50: UK Ratification, Revocation, Extension or Hard Brexit?

Now that UK cabinet approval for the Brexit deal (in the form of the draft Withdrawal Agreement published by the EU and the UK on 14 November) has been obtained, attention in the UK turns to its approval by Parliament. This revives the issue of the UK Parliament's so-called “meaningful vote” on the deal but also raises a number of questions as to what happens if Parliament votes down the deal. Various options have been proposed as an alternative to the UK crashing out of the EU without a deal on 29 March 2019 a general election, a further referendum, an extension to the Article 50 deadline – but each of these options give rise to fundamental legal and practical issues. Further, the question arises as to whether, if the Government refuses to pursue any of these options, Parliament can force the Government’s hand.

This paper considers the legal issues arising in relation to each of these options, with a view to helping clients assess how likely it is that a Withdrawal Agreement (whether in its current form or otherwise) will be ratified on the UK side, what the route to ratification might look like, and the likely timescales involved.

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