They do say that if you legislate in haste then you will repent at leisure and that may well be the case for the Remainers with regard to the Act passed last night that attempts to prevent a no deal Brexit.


Yesterday evening there was a lot of backslapping and high fives for Yvette Cooper and Oliver Letwin as the bill they sponsored and rammed through both Houses of Parliament in three sitting days was made law by Royal Assent last night.

The result was that the 'Cooper Act' forced the Prime Minister to bring a motion to the House of Commons today, to extend the Article 50 process to a specific date.

And in that motion the PM has asked the Commons to order her to seek a Brexit extension to the 30th of June in line with what she's already requested from the EU Council.

But the date in the motion can be changed by amendments put forward by MPs and chosen for debate and voting on by the Speaker of the House.

On the face of it you would be forgiven for thinking that it's game set and match to the Remainers.

But it is not all that it seems. Having read through the legislation and what the House of Lords Constitution Committee said about it, the Act may well prove to be quite toothless.

The first point is that the Act requires the Prime Minister to put the motion to the House on the day the Act became law or the day after. That has been done and as far as I can see there are no other clauses in the bill that requires her to repeat that exercise ever again.

Secondly, The Act only requires the PM to 'seek' an extension – it does not talk about negotiating or getting an extension at any cost or limited cost or anything like that.

Thirdly, any date that MPs vote for has to be an end date. Amendments that try to make it an open extension are not allowed as far as I can see, because of the wording of the Act itself.

Fourthly, there is no time limit imposed between the passing of any motion that forces her to go to Brussels with a date and when she actually does so – she could put it at the bottom of the in-tray.

Now according to the House of Lords the likely outcomes are:

The EU could refuse to agree the extension – in that case says the Lords report: "…the Bill would have no further application—that is, it would not impose any further duties on the Prime Minister nor make any further relevant provision. The UK would then, by default, leave the EU on the 12 April 2019 on a no-deal basis."

So this Act does not prevent a no deal scenario.

Or, the EU could agree unconditionally to the extension – in that case the Lords reports says that the exit date in the Withdrawal Act could then be amended by statutory instrument but the Cooper Act itself would once again then "…have no further application—that is, it would not impose any further duties on the Prime Minister nor make any relevant further provision."

Or, the EU could agree to the extension but try and impose certain conditions on the UK for doing so. In this case, once again the Lords Committee says "…the Bill would have no further application—that is, it would not impose any further duties on the Prime Minister nor make any relevant further provision."

That means that because the Cooper Act only tells the PM to seek and extension, it does not say she has to negotiate or accept any conditions – she could say no.

And the final clauses that would have required the PM to be some sort of ping-pong player with offers and counter-offers of dates between parliament and the EU council, have been removed.

That means, that if the EU declined the date proposed by the UK but made a counter offer of a different date, then it seems to me that the PM would have no duty to put that to MPs to consider.

So this Act makes the PM put forward one single motion with an Article 50 extension date that can be amended by MPs. This she has done. So it seems to be a one shot Act.

Now MPs can amend that date to another date that must be an actual date and not open ended. But today our MPs were offered that option and actually chose not to change it.

So, after initial use, the Cooper Act appears to me to be redundant, as it has no further use. Apart from one clause that says any extension agreed cannot end before the 22nd May, the day before the EU elections.

The upshot from all of this is that the PM maybe nowhere near as constrained by this Act as people, especially our MPs, think.

So any extension will still be her decision, it will be down to whether Theresa May herself wants that extension or not.

One peer, the cross bencher Baroness Deech, pointed this out during debates and the Tory MP Marcus Fysh Tweeted out on this saying:

"Confirmation from a real Constitutional law specialist that extension of Article 50 not in fact required by Cooper Act passed last night. If PM does it, it is because she wants to – her decision alone to break repeated promises we would leave the EU now."

Now, the breaking news is that MPs have just voted by 420 votes to 110 in favour of her unamended motion. That will force the PM to ask the EU Council tomorrow for an extension until the 30th of June, which ties in with the letter she's already sent last week to Donald Tusk, the EU Council President.

So, given all I've said above, If I'm right, MPs have just used up a one shot only Act of parliament so as to order Mrs May to do exactly what she is already doing – masterful!

And further, if I'm right, those MPs and Lords wasted three days of debating when they could have been passing no deal statutory instruments or maybe passing laws to deal with such things as knife crime – you know, the stuff that kills people.


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