Legal preconditions for a deal cannot be met before 31st Octoberby Jolyon Maugham / September 17, 2019 / Leave a comment
If the prime minister is to be taken at his word that we will leave the EU come what may on 31st October 2019, we will be leaving without a deal. There are a number of pre-conditions imposed by both United Kingdom and European law to the completion of a deal—and the simple reality is that there is not time prior to 31st October to meet them.
The prime minister has been clear that he will not re-present to parliament for approval the Withdrawal Agreement concluded by Theresa May which it has three times rejected. The consequence must be that, if we are to leave the EU with a deal, not only must our parliament consent but the European Council and European Parliament must offer a different Withdrawal Agreement.
The earliest moment at which any different Withdrawal Agreement might be offered by the Council will be at the conclusion of its meeting on 17th-18th October. We must thus assume that the earliest point in time at which a Withdrawal Agreement could be presented to parliament for its approval is 19th October (a Saturday, be it noted, a day on which parliament would ordinarily not sit).
That leaves 12 days within which to satisfy all the preconditions—in domestic law and in European law—for that agreement to be formalised. So what are they? Can it be done in time?
Let me deal with the domestic law preconditions first. They are set out in section 13 of the European Union (Withdrawal) Act 2018 and there are (at least; I leave aside the Constitutional Reform and Governance Act 2010 which may be swept up in the fourth) four.
First, parliament must have laid before it and approve the withdrawal agreement and the framework for the future relationship. Little has been said about the framework of late but it may be reasonable to assume that the prime minister will wish to re-negotiate it—and that parliament will need time to consider that renegotiated agreement.
Second, the withdrawal agreement and framework must be approved by a resolution in the House of Commons. On previous occasions, parliamentary debate over the withdrawal agreement has taken place over a number of days. Will a parliament prorogued for five weeks be prepared to accede to a short guillotine?