| Act of Parliament | |
 | |
| Long title | An Act to make further provision in connection with the period for negotiations for withdrawing from the European Union. |
|---|---|
| Citation | 2019 c. 26 |
| Introduced by | Hilary Benn (Commons) Lord Rooker (Lords) |
| Territorial extent | England and Wales,Scotland andNorthern Ireland |
| Dates | |
| Royal assent | 9 September 2019 |
| Commencement | 9 September 2019 |
| Repealed | 23 January 2020 |
| Other legislation | |
| Repealed by | European Union (Withdrawal Agreement) Act 2020 |
| Relates to | European Union (Notification of Withdrawal) Act 2017 European Union (Withdrawal) Act 2018 European Union (Withdrawal) Act 2019 |
Status: Repealed | |
| History of passage through Parliament | |
| Text of statute as originally enacted | |
| Text of the European Union (Withdrawal) (No. 2) Act 2019 as in force today (including any amendments) within the United Kingdom, fromlegislation.gov.uk. | |
TheEuropean Union (Withdrawal) (No. 2) Act 2019, informally referred to as theBenn Act, was an act of theParliament of the United Kingdom that required thePrime Minister of the UK to seek an extension to theBrexit withdrawal date—then scheduled for 31 October 2019—in certain circumstances. The main provisions of the Act were triggered if theHouse of Commons did not give its consent to either awithdrawal agreement orleaving without a deal by 19 October 2019. The Act proposed a new withdrawal date of 31 January 2020, which the Prime Minister accepted if the proposal was accepted by theEuropean Council.
The Act also contained provisions that detailed the course of action if an alternative date were proposed by the European Council, required regular reports on the progress of any negotiations between the EU and the UK, and set out the format of the letter the Prime Minister was required to send to the President of the European Council should he be required to seek an extension. It also removed thediscretion of the Prime Minister not to amend exit day in response to an extension. The Act was givenRoyal Assent on 9 September 2019 and commenced the same day.
The bill was proposed by opposition andbackbench MPs afterBoris Johnson became prime minister. It was passed after they took control of the parliamentary agenda in the run-up to the controversial—and later ruled void—prorogation of Parliament. The Government fiercely opposed the bill, and Boris Johnson and other eurosceptics repeatedly referred to the Act as the "Surrender Act". The Government had been suspected of examining options on how to nullify the Act's effect. On 19 October, Johnson sent the letter to the president of the European CouncilDonald Tusk requesting an extension to the Brexit withdrawal date per the Act.[1] This was formally approved on 28 October.[2] On 30 October 2019, the day named as "exit day" in UK legislation was accordingly changed to 31 January 2020 at 11.00 p.m.[3]
The Act was repealed on 23 January 2020 by theEuropean Union (Withdrawal Agreement) Act 2020.[4]
In June 2016, theUnited Kingdom voted in a referendum to leave the European Union by a margin of 52% to 48%.[5] Nine months later, on 29 March 2017, the Government, by then led byTheresa May,invoked Article 50 of the Treaty on European Union,[6] after Parliament voted to approve theEuropean Union (Notification of Withdrawal) Act 2017 by a vote of 498 to 114.[7] After aGeneral Election in June 2017, May'sConservative Party lost their majority, but were supported by theDemocratic Unionist Party to enact their legislative agenda.[8]
TheBrexit withdrawal agreement was published in November 2018,[9] and wasrejected three times by Parliament in early 2019.[10] Facing the prospect ofleaving the EU without a deal, Parliament voted to also reject a "no deal" scenario and to request an extension to the Article 50 process with theEuropean Union (Withdrawal) Act 2019.[11][12] The Government and theEuropean Council subsequently agreed to delay Brexit, until 12 April 2019 in the first instance, and then to 31 October 2019.[13]
Due to opposition from her own party to her handling of Brexit, May resigned as Leader of the Conservative Party on 7 June 2019 and prime minister on 24 July 2019.[14] She was succeeded after the followingleadership election as leader and prime minister byBoris Johnson, who pledged, "do or die", to withdraw the UK from the EU on 31 October, with or without a deal.[15]
On 28 August 2019, Johnson advisedQueen Elizabeth II toprorogue Parliament from the second week of September 2019 until 14 October 2019, days before a scheduled summit of the European Council on 17 October.[16] The prorogation reduced the amount of time that was available to Parliament to scrutinise Government business, and was criticised outwith the government as a tactic to force a "no deal" Brexit without the consent of Parliament: in particular theSpeaker of the House of CommonsJohn Bercow called prorogation in the circumstances a "constitutional outrage"; and protestors at an impromptu demonstration saw the government as effecting acoup d'état orself-coup.[16]
The Act contained four substantive sections and a schedule that contained the form of a letter to request an extension of the negotiating period:[17]
On 3 September 2019, Conservative MPOliver Letwin tabled a motion that would allow the House of Commons to undertake proceedings on the second reading, committee stage, consideration and third reading of a backbench Brexit bill on the following day. The motion was passed with a majority of 27.[18][19] A total of 21 Conservative MPs voted in favour of the motion and againstthe Government; this led to thewhipbeing withdrawn from the rebels, and pushed the government further away from amajority (after Conservative MPPhillip Lee lost the government its working majority of 1 earlier in the day by defecting to theLiberal Democrats). The rebels included theFather of the House and formerChancellor of the Exchequer,Ken Clarke, eight other Cabinet ministers underCameron and May, andWinston Churchill's grandson,Nicholas Soames.[20][notes 1] In response to the suspension of the rebel MPs,Jo Johnson—Boris's brother—andAmber Rudd resigned from the Cabinet in protest shortly after.[21][22]
The legislation was introduced to the House of Commons by Labour MPHilary Benn as theEuropean Union (Withdrawal)(No. 6) Bill on the following day. The Government made clear its opposition to the bill from the beginning, and said that, were it to pass through the House of Commons, theprime minister,Boris Johnson, would immediately bring forward a motion under theFixed-term Parliaments Act for ageneral election.[23] The bill passed second reading by 329 votes to 300.[24] The bill was amended once at the committee stage, by aStephen Kinnock amendment that would allow the Withdrawal Agreement to be discussed again, which passed as there were not any 'no'tellers provided for the division. The bill passed its third reading on the same day, by 327 votes to 299.[25]
The bill then moved to the House of Lords on the same day, and there were suggestions that the bill could befilibustered; unlike in the House of Commons, the House of Lords typically does not restrict the content of debates. TheShadow Leader of the House of Lords, BaronessAngela Smith, tabled aguillotine motion that would allow the bill to clear the Lords by 5 pm on Friday 6 September; Conservative peers tabled 102 amendments to the guillotine motion in an attempt to prioritise other parliamentary business over the bill.[26][27] By 1:30 am on 5 September, the Government announced it would discontinue the filibuster and allow the bill to return to the House of Commons, if amended by the House of Lords, for the 9 September sitting.[28] The bill passed second reading without a division on 5 September,[29] and passed the committee, report, and third reading stages unamended on 6 September.[30] The bill received royal assent and became law on 9 September 2019, several hours before Parliament was suspended.[31][32]
In response to the bill's passage on 4 September, the Government immediately brought a motion for an early general election under the terms of theFixed-term Parliaments Act 2011. The motion failed 298–56, short of the two-thirds supermajority of all MPs (434) needed to trigger an election; opposition parties either voted against or abstained on the motion as they believed the intention of the government was to ensure departure from the EU without a deal whileParliament was dissolved for such an election.[33] On 9 September, a second attempt at triggering an early election failed 293–46.[34]
On 5 September, at a press conference at a police training school inWakefield, West Yorkshire, Johnson said he would rather be "dead in a ditch" than request an extension to Article 50.[35] Johnson was criticised by thePolice Federation of England and Wales,West Yorkshire Police and Crime CommissionerMark Burns-Williamson and Chair of theHome Affairs Select CommitteeYvette Cooper among others for using the speech for partisan purposes, thus bringing into question the impartiality of the police. In a press release on 6 September,Chief Constable ofWest Yorkshire Police, John Robins, stated the speech was intended to announce new policing policy and the force was not given prior notice of the speech being expanded to include other matters.[36] In response to continuing concerns of the possibility of Johnson breaking the law,Secretary of State for JusticeRobert Buckland stated on 8 September he had discussions with Johnson over the importance of therule of law—which Buckland, asLord Chancellor, has a legal obligation to uphold—but denied rumours he would resign from the Cabinet if Johnson did break the law.[37]
By 9 September, reports surfaced that the Government would seek to bypass the law by sending a request for an extension as required by the Act alongside another letter that declared the request invalid; formerSupreme Court justiceLord Sumption described such an act, in the face of judicial action, as a possiblecontempt of court that would risk the resignations of thelaw officers in his Cabinet,[38] while formerDirector of Public ProsecutionsKen Macdonald said Johnson was risking imprisonment for the same offence.[39] In response,Leader of the OppositionJeremy Corbyn tabled an emergency motion for debate on that day on the importance of the rule of law; the motion passed without a vote in a symbolic victory for the opposition, although the Government stated in the debate that their policy would be to not request an extension, despite the legal requirement to do so.[40] Polling undertaken byYouGov over the weekend of 6–8 September 2019 indicated 50% of respondents disapproved and 28% of respondents approved of the proposition of Johnson breaching the law; Leave (52% in favour, 28% opposed) and Conservative (50%–34%) voters were most supportive whereas Remain (8%–77%),Liberal Democrat (11%–76%) andLabour (14%–69%) were the most opposed.[41]
On the same day,Liz Saville Roberts, the leader ofPlaid Cymru in the House of Commons, announced she had entered discussions with other parties to gather support forimpeachment if Johnson refused to obey the law.[42] Impeachment is an arcane parliamentary procedure that has never been successfully levelled towards a prime minister or a Cabinet Minister; the last individual to be impeached wasHenry Dundas, 1st Viscount Melville for his actions as Treasurer of the Navy in 1806, though he was acquitted.[43] Plaid Cymru had spearheaded the last serious impeachment attempt,an unsuccessful 2004 effort to indict then-Prime MinisterTony Blair for lying to Parliament regarding theIraq War.[42] Johnson, then a member of theopposition frontbench, was another high-profile supporter of the effort to impeach Blair and wrote a column inThe Daily Telegraph that accused him of "treating Parliament and the public with contempt".[44]
On 26 September 2019, former Prime MinisterJohn Major said in a speech to the Centre for European Reform that he "feared" that Johnson would use anOrder of Council to nullify the Act until after 31 October.[45] Ordersof Council, in contrast to the similarly namedOrdersin Council, are decisions taken by thePrivy Council alone, as opposed to with the consent of the monarch; such orders are typically made for technical reasons—such as regulating the medical profession—and not to disapply statute law.[46] The option to use Orders of Council would likely utilise provisions of theCivil Contingencies Act 2004 that allow for the Government, in times of emergency, to temporarily disapply laws.[46] The following afternoon,10 Downing Street denied Johnson would use Orders of Council to bypass the Act, but reiterated the Government's commitment to leaving the EU on 31 October.[47]
On 12 September 2019, an application was made to theCourt of Session in Scotland byJo MaughamQC andJoanna CherryQC MP to require the Prime Minister to sign the extension letter in the event no withdrawal agreement could be agreed in time. The applicants hoped that the Court's power ofnobile officium, unique among UK courts, would enable it to send the extension letter on Johnson's behalf if he declined to do so. Cherry, the justice spokeswoman for theScottish National Party, and Maugham had successfully brought a case before the Court of Session to challenge Johnson's prorogation of Parliament, which had delivered a judgment that declared it unlawful on the previous day.[48]
On 24 September 2019, theSupreme Court ruled inR (Miller) v The Prime Minister andCherry v Advocate General for Scotland that the prorogation was unlawful and void; as a response, Parliament was recalled to sit the following day.[49] That morning, theAttorney General,Geoffrey Cox, said there was "no question of this government not obeying the law" with regard to the Act, and that the Government believed what legal obligations the Act contained was an open question.[50]
On 7 October 2019, the Cherry/Maugham petition to the Court of Session to force Johnson to comply with the Act was denied. TheOuter House of the Court of Session ruled that there was no "reasonable apprehension of a breach of statutory duty" and that, in the light of averments before the Court that the Government would comply with the act, there was no need for a coercive order to enforce compliance. On 9 October, theInner House of the Court of Session decided that a final ruling on the petition would not be made until 21 October—two days after the deadline in the Act for the Prime Minister to request an extension.[51]
Separately in the Inner House, the campaigners requested a ruling that, if such a letter came to be required and Johnson failed to write it, the Court would write the letter itself usingnobile officium powers.[52][53]
Following a special sitting of Parliament on Saturday 19 October, the Benn Act required the prime minister immediately to write to the European Council with a request for an extension of withdrawal until 31 January 2020.[54][55] Prime minister Boris Johnson sent two letters to the president of the European Council,Donald Tusk: one, which was stated to be from the UK prime minister but was not signed, referred to the requirements of the Benn Act and requested an extension until 31 January 2020; the other, signed personally by Johnson and copied to all Council members, stated that it was his own belief that a delay would be a mistake and requested support from the president and Council members for his continuing efforts to ensure withdrawal without an extension. The letters were delivered by the British permanent representative in Brussels, together with a cover note signed by himself which affirmed that the first letter complied with the Benn Act.[56][57][58]
On 21 October, the case resumed in the Inner House. The campaigners conceded that Johnson had fulfilled the requirement of the Act that he write seeking an extension, but contended that his second letter negated the first. The Court refused the government's request to dismiss the case, deciding that it should remain before the Court "until it is clear that the obligations under [the Benn Act] have been complied with in full". On 7 October, government lawyers had undertaken to the Outer House that Johnson would abide by all requirements of the Act. These included responding to the EU's reaction to his letter. Any breach of that undertaking could have placed Johnson in contempt of the Court.[59]
The Prime Minister's description of the law as a "Surrender Act" in Parliament was criticised byDewsbury MPPaula Sherriff, who said his language was unnecessarily inflammatory and said that opposition politicians routinely received death threats that similarly called the law a "Surrender Act" and accused MPs of "betrayal" and that Johnson should moderate his language; Johnson received heckles of "shame" when he described Sherriff's comments as "humbug".[60]Tracy Brabin, the then MP for the neighbouring constituency ofBatley and Spen, also asked Johnson for moderation to prevent violence against MPs; her predecessor,Jo Cox, wasmurdered in June 2016 by a neo-Nazi.[61] Johnson declined and elicited further outrage from some MPs when he said that "the best way to honour [Cox's] memory" was "to get Brexit done".[60]
On 19 October 2019, a special Saturday sitting of Parliament was held to debate a revised withdrawal agreement.[62][63] Prime ministerBoris Johnson moved approval of that agreement. However in a surprising and unexpected counter move Parliament instead passed, by 322 to 306,Sir Oliver Letwin's amendment to the motion, to delay consideration of the agreement until the legislation to implement it has been passed; the motion was then carried as amended, implementing Letwin's delay.[64] This delay activated the Act, requiring the prime minister immediately to write to the European Council with a request for an extension of withdrawal until 31 January 2020.[65][66]
Later on that day, prime minister Johnson sent two letters to the president of the European Council,Donald Tusk: one, which was stated to be from the UK prime minister but was not signed, referred to the requirements of the Act and requested an extension until 31 January 2020; the other, signed personally by Johnson and copied to all Council members, stated that it was his own belief that a delay would be a mistake and requested support from the president and Council members for his continuing efforts to ensure withdrawal without an extension. The letters were delivered by the British permanent representative in Brussels, together with a cover note signed by himself which affirmed that the first letter complied with the Act.[56][57][67]
On 22 October, the legislation to implement the withdrawal agreement—the EU (Withdrawal Agreement) Bill—was approved in the Commons (second reading) by 329 votes to 299. However, the accompanying "programme motion", to get all stages of the bill completed in three days and thus before 31 October, was defeated by 322 votes to 308 after MPs objected that this would not allow time for adequate consideration.[68][69]
On 28 October, the extension of the Brexit withdrawal date to 31 January 2020 was formally approved between the prime minister and the EU. He called for ageneral election on 12 December, which MPs voted for on 29 October, and Johnson went on to win an 80-seat majority.
The UK left the European Union on 31 January 2020, with a transitional arrangement aligning the UK to EU rules ending on 31 December that year. A trade deal, theEU–UK Trade and Cooperation Agreement, setting the terms of the future relationship between the EU and UK was agreed on 24 December 2020, subject to approval by national legislatures.[2][70][71]
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