European Union (Withdrawal) (No. 2) Act 2019

European Union (Withdrawal) (No. 2) Act 2019

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 and Northern Ireland
Dates
Royal assent	9 September 2019
Commencement	9 September 2019
Other legislation
Relates to	European Union (Notification of Withdrawal) Act 2017 European Union (Withdrawal) Act 2018 European Union (Withdrawal) Act 2019
Status: Current legislation
History of passage through Parliament
Text of statute as originally enacted

Part of a series of articles on
Brexit
Withdrawal of the United Kingdom from the European Union Glossary of terms
Background European Communities Act 1975 EC membership referendum UK rebate Bruges speech No. No. No. Maastricht Rebels Black Wednesday European Union (Amendment) Act 2008 European Union Act 2011 UK opt-outs from EU legislation Euroscepticism in the UK UK opinion polling on EU membership Campaigns for a referendum People's Pledge Labour for a Referendum Bloomberg speech In or Out 2013–14 EU (Referendum) Bill (unsuccessful) 2014 European Parliament election 2014 UK Parliament by-elections Clacton Heywood and Middleton Rochester and Strood 2015 UK general election 2015–16 EU membership renegotiation
2016 EU referendum EU Referendum Act (Gibraltar) EU Referendum (Date of Referendum etc.) Regulations EU Referendum (Conduct) Regulations Issues Endorsements Opinion polling UK Government pro-EU leaflet Campaigns Leave campaigns Vote Leave (official) Business for Britain Conservatives for Britain BeLeave Leave.EU Bpoplive The Freedom Association Better Off Out Grassroots Out Labour Leave Get Britain Out Bruges Group Campaign for an Independent Britain Brexit: The Movie Remain campaigns Britain Stronger in Europe (official) Labour In for Britain European Movement UK Britain in Europe British Influence Business for New Europe Nucleus Project Fear Outcome Results Causes for result International reactions Immediate aftermath 2016 Conservative Party election 2016 Labour Party election 2016 UKIP election Department for Exiting the EU Department for International Trade Allegations of unlawful campaigning Alleged Russian interference
Notice of withdrawal Article 50 process Miller case (Article 50) EU (Notification of Withdrawal) Act 2017 Brexit plan Repeal Bill plan 2017 UK general election
Negotiations Negotiation positions EU negotiation mandate Chequers agreement Timeline: 2017, 2018, 2019 2019 European Parliament election 2019 UK general election
Withdrawal agreement Brexit divorce bill Fish for finance Irish backstop No-deal Brexit Northern Ireland Protocol Northern Ireland Protocol Bill Windsor Framework
Legislation Withdrawal Act 2018 (Gibraltar) Nuclear Safeguards Act 2018 Cooper–Letwin Act Benn Act 2019 suspension of rebel Conservative MPs Public Vote Bill (not passed) Terms of Withdrawal Bills (not passed) Scottish EU Continuity Bill (blocked) Withdrawal Agreement Act (Gibraltar) Scottish EU Continuity Act Internal Market Act EU (Future Relationship) Act Retained EU Law (Revocation and Reform) Bill
Impact Impact on the Irish border Good Friday Agreement Impact on the EU Economic effects Effects on Gibraltar Scientific cooperation Retained EU law 2021 Jersey dispute
EU–UK relations Relations pre- and post-Brexit EU–UK trade negotiation EU–UK Trade and Cooperation Agreement (TCA) Partnership Council Partnership Assembly Relations with EU member states Austria Belgium Bulgaria Croatia Cyprus Akrotiri and Dhekelia Czech Republic Denmark Estonia France Germany Greece Hungary Ireland Ireland–UK border British–Irish Council North/South Ministerial Council Italy Lithuania Malta Netherlands Poland Portugal Romania Slovakia Spain Status of Gibraltar Gibraltar–Spain border Sweden Conjectured EEA membership
Opposition Post-referendum opinion polling New initiatives Change Britain More United Open Britain The New European Unite to Remain Led By Donkeys Revoke Article 50 petition Postcards from the 48% Proposed second Scottish independence referendum Calls for a second referendum People's Vote Britain for Europe European Movement UK For our Future's Sake Healthier IN the EU InFacts Open Britain Our Future Our Choice Scientists for EU Other organisations Best for Britain Bollocks to Brexit Change UK Liberal Democrats Right to Vote
Timeline Bloomberg speech Jan 2013 Referendum Bill blocked Jan 2014 European Parliament election May 2014 2015 general election May 2015 Renegotiation begins Jun 2015 Referendum Act passed Dec 2015 Renegotiation concluded Feb 2016 Referendum held Jun 2016 David Cameron resigns as PM Jul 2016 Theresa May becomes PM Jul 2016 Article 50 judgement Jan 2017 Brexit plan presented Feb 2017 Notification Act passed Mar 2017 Article 50 invoked Mar 2017 Repeal Bill plan presented Mar 2017 2017 general election Jun 2017 Brexit negotiations begin Jun 2017 Withdrawal Act passed Jun 2018 Chequers plan presented Jul 2018 Withdrawal agreement plan presented July 2018 Withdrawal agreement released Nov 2018 Scottish Continuity Bill blocked Dec 2018 Meaningful votes Jan–Mar 2019 Brexit delayed until 12 April Mar 2019 Cooper–Letwin Act passed Apr 2019 Brexit delayed until 31 October Apr 2019 European Parliament election May 2019 Theresa May resigns as PM Jul 2019 Boris Johnson becomes PM Jul 2019 Prorogation and annulment Aug–Sep 2019 Benn Act passed Sep 2019 Withdrawal agreement revised Oct 2019 Brexit delayed until 31 January Oct 2019 2019 general election Dec 2019 Agreement Act passed Jan 2020 UK leaves the European Union Jan 2020 Implementation period begins Jan 2020 UK–EU trade deal agreed Dec 2020 Future Relationship Act passed Dec 2020 Scottish Continuity Act passed Dec 2020 Implementation period ends Dec 2020 New EU–UK relationship begins Jan 2021 UK–EU trade deal ratified Apr 2021 Windsor Framework released Feb 2023 Windsor framework adopted Mar 2023
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The European Union (Withdrawal) (No. 2) Act 2019 is a British statute, also referred to as the Benn Act or (by its opponents) as the "Surrender Bill", that seeks to prevent the United Kingdom from leaving the EU without a withdrawal agreement on 31 October 2019, unless the House of Commons has consented to a "no deal" Brexit.

The Act requires the Prime Minister to seek an extension of the Brexit withdrawal date beyond 31 October 2019 unless either: (a) a withdrawal agreement is reached with the European Union and approved by the House of Commons, or (b) the House of Commons passes a motion in favour of leaving without an agreement.

The Act requires that unless the House of Commons has approved either a withdrawal agreement or a "no deal" Brexit by 19 October 2019, then the Prime Minister must propose to the EU a new withdrawal date of 31 January 2020.

Additionally, the bill requires regular reports on the progress of any negotiations between the EU and the UK and sets out the format of the letter the Prime Minister is required to send to the President of the European Council should he be required to seek an extension. The Act was given royal assent on 9 September 2019 and commenced the same day.

The Act was proposed by members of the opposition and backbench MPs after Boris Johnson became Prime Minister, to prevent the government from forcing a "no-deal Brexit" without the consent of Parliament, and was passed after they took control of the parliamentary agenda in the run-up to the unlawful prorogation of Parliament in September 2019. The Government fiercely opposed the Act—Johnson referred to the law as a "Surrender Act"—and, even after its passage into law, was reported as examining options on how to nullify or evade its requirements.

In June 2016, the United Kingdom voted in a referendum to leave the European Union by a margin of 52% to 48%.^[1] Nine months later, on 29 March 2017, the Government, by then led by Theresa May, invoked Article 50 of the Treaty on European Union,^[2] after Parliament voted to approve the European Union (Notification of Withdrawal) Act 2017 by a vote of 498 to 114.^[3] After a general election in June 2017, May's Conservative Party lost their majority, but were supported by the Democratic Unionist Party to enact their legislative agenda.^[4]

The Brexit withdrawal agreement was published in November 2018,^[5] and was rejected three times by Parliament in early 2019.^[6] Facing the prospect of leaving 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 the European Union (Withdrawal) Act 2019.^[7][8] The Government and the European Council subsequently agreed to delay Brexit, until 12 April 2019 in the first instance, and then to 31 October 2019.^[9]

Due to opposition from her own party to her handling of Brexit, May resigned as Conservative leader on 7 June 2019 and Prime Minister on 24 July 2019.^[10] She was succeeded after the following leadership election as leader and Prime Minister by Boris Johnson, who pledged, "do or die", to withdraw the UK from the EU on 31 October, with or without a deal.^[11]

On 28 August 2019 Johnson requested the prorogation of Parliament from the second week of September 2019 until 14 October 2019, days before a crunch summit of the European Council on 17 October, which reduced the ability of Parliament to legislatively prevent a no-deal Brexit.^[12] The prorogation announcement was met with criticism; the Speaker of the House of Commons John Bercow called the prorogation in the circumstances a "constitutional outrage", and anti-Brexit protesters chanted "stop the coup".^[12]

The bill contains four substantive sections, and a schedule which contain provisions detailing the course of an extension of the negotiating period:^[13]

• Section 1 obliges the Prime Minister to request an extension to the Article 50 negotiating period for the purpose of negotiating a withdrawal agreement, unless the House of Commons has passed a motion which either approves a withdrawal agreement or approves departure without a deal, and the House of Lords has debated the same motion. If such a motion is not approved, the Prime Minister is obliged to make the request no later than 19 October 2019.
• Section 2 obliges the Government to publish a progress report on negotiations before 30 November 2019, and if rejected or amended, publish a second report which details its plans for further negotiations, and also obliges the Government to make progress reports every four weeks from 7 February 2020 unless directed otherwise.
• Section 3 obliges the Prime Minister to accept an extension to 31 January 2020, and allows the Prime Minister to either accept an offer or ask the House of Commons to accept an offer of any other date.
• Section 4 amends legislation to ensure the date of departure is synchronised with European law.
• The Schedule specifies the required layout and wording of the letter which requests the extension.

On 3 September 2019, Conservative MP Oliver Letwin tabled a motion which 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.^[14][15] A total of 21 Conservative MPs voted in favour of the motion and against the Government; this led to the whip being withdrawn from the rebels, and left the government without a majority. The rebels included the Father of the House and former Chancellor of the Exchequer, Ken Clarke, eight other Cabinet ministers under Cameron and May, and Winston Churchill's grandson, Nicholas Soames.^{[16][notes 1]} In response to the suspension of the rebel MPs, Jo Johnson—Boris's brother—and Amber Rudd resigned from the Cabinet in protest shortly after.^[17][18]

The legislation was introduced to the House of Commons by Labour MP Hilary Benn, as the European 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, the Prime Minister, Boris Johnson, would immediately bring forward a motion under the Fixed-Term Parliaments Act for a general election.^[19] The bill passed Second Reading by 329 votes to 300.^[20] The bill was amended once at the committee stage, by a Stephen Kinnock amendment which 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.^[21]

The bill then moved to the House of Lords on the same day, and there were suggestions that the bill could be filibustered; unlike in the House of Commons, the House of Lords typically does not restrict the content of debates. The Shadow Leader of the House of Lords, Baroness Angela Smith, tabled a guillotine motion which would allow the bill to clear the Lords by 5pm on Friday 6 September; Conservative peers tabled 102 amendments to the guillotine motion in an attempt to prioritise other parliamentary business over the bill.^[22][23] By 1:30am 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.^[24] The bill passed Second Reading without a division on 5 September,^[25] and passed the Committee, Report, and Third Reading stages unamended on 6 September.^[26] The bill received Royal Assent and became law on 9 September 2019, several hours before Parliament was unlawfully prorogued.^[27][28]

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 the Fixed-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 whilst Parliament was dissolved for such an election.^[29] On 9 September, a second attempt at triggering an early election failed 293–46.^[30]

On 5 September, at a press conference at a police academy in Wakefield, West Yorkshire, Johnson said he would rather be "dead in a ditch" than requesting an extension to Article 50.^[31] Johnson was criticised by the Police Federation of England and Wales and 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 of West 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.^[32] In response to continuing concerns of the possibility of Johnson breaking the law, Secretary of State for Justice Robert Buckland stated on 8 September he had discussions with Johnson over the importance of the rule of law—which Buckland, as Lord Chancellor, has a legal obligation to uphold—but denied rumours he would resign from the Cabinet if Johnson did break the law.^[33]

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 which declared the request invalid; former Supreme Court justice Lord Sumption described such an act, in the face of judicial action, as a possible contempt of court which would risk the resignations of the law officers in his Cabinet,^[34] while former Director of Public Prosecutions Ken Macdonald said Johnson was risking imprisonment for the same offence.^[35] In response, Leader of the Opposition Jeremy 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.^[36] Polling undertaken by YouGov 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%–28%) and Conservative (50%–34%) voters were most supportive whereas Remain (8%–77%), Liberal Democrat (11%–76%) and Labour (14%–69%) were the most opposed.^[37]

On the same day, Liz Saville Roberts, the leader of Plaid Cymru in the House of Commons, announced she had entered discussions with other parties to gather support for impeachment if Johnson refused to obey the law.^[38] Impeachment is an arcane parliamentary procedure, which has never been successfully levelled towards a Prime Minister or a Cabinet Minister; the last individual to be impeached was Henry Dundas, 1st Viscount Melville in 1806.^[39] Plaid Cymru had spearheaded the last serious impeachment attempt, an unsuccessful 2004 effort to indict then-Prime Minister Tony Blair for lying to Parliament regarding the Iraq War.^[38] Johnson, then a member of the opposition frontbench, was another high-profile supporter of the effort to impeach Blair and wrote a column in The Daily Telegraph which accused him of "treating Parliament and the public with contempt".^[40]

On 12 September 2019, an application was made to the Court of Session in Scotland by Jo Maugham QC and Joanna Cherry QC MP to require the Prime Minister to sign the extension letter in the event no withdrawal agreement could be agreed in time. The applicants hope the Court's power of nobile officium, unique among UK courts, will enable it to send the extension letter on Johnson’s behalf if he declines to do so. Cherry—the justice spokeswoman for the Scottish 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 judgement which declared it unlawful on the previous day.^[41]

On 24 September 2019, the Supreme Court ruled in R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland that the prorogation was unlawful and void; as a response, Parliament was recalled to sit the following day.^[42] That morning, the Attorney 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.^[43] That evening, however, Johnson contradicted Cox's remarks when he answered, in the negative, the question of whether he would abide by "all of the provisions" of the Act.^[44]

Johnson's description of the law as a "Surrender Act" in Parliament elicited criticism from opposition politicians, who thought his language was inflammatory. In a response to his statement to Parliament, Dewsbury MP Paula Sherriff 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".^[45] Tracy Brabin, the MP for the neighbouring constituency of Batley and Spen, also asked Johnson for moderation to prevent violence against MPs; her predecessor, Jo Cox, was murdered in June 2016 while campaigning to remain in the EU, by a neo-Nazi who called her a "collaborator" and "traitor".^[46] Johnson declined and elicited further outrage from MPs when he said that "the best way to honour [Cox's] memory" was "to get Brexit done".^[45]

On 26 September 2019, former Prime Minister John Major said in a speech to the Centre for European Reform that he "feared" that Johnson would use an Order of Council to nullify the Act until after 31 October.^[47] Orders of Council, in contrast to the similarly named Orders in Council, are decisions taken by the Privy Council alone, as opposed to with the consent of the Queen; such orders are typically made for technical reasons-such as regulating the medical profession-and not to disapply statute law.^[48] The option to use Orders of Council would likely utilise provisions of the Civil Contingencies Act 2004 which allow for the Government, in times of emergency, to temporarily disapply laws.^[48] 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.^[49]

• Text of the bill as introduced in the Commons
• Text of the bill as introduced in the Lords