This is how it began:
Cameron’s personal position is clear and yet he says it must go to the people.
On that basis, the promise of a referendum, he went to the people in a GE and was returned with a reduced majority:
Then came the £9m leafleting to every voting household:
A cast-iron guarantee that whatever result came back would be implemented. It can be argued that there was no time frame given, except that it be within the life of the new parliament but this is altered by something else further down.
Here is the ballot paper for June 23rd, 2016:
No ifs, no buts, no hard nor soft, no WA – straight out or stay in. End of.
And here was the result:
Not even close and over two-thirds voting. Expectation of most at that time was a reasonable delay to depart, say, to the end of 2016 or early in 2017.
However, he was replaced by May in a ‘coronation’:
And she announced in October that she would invoke Article 50:
There was that issue, plus the SNP scare, plus the Corbyn scare and thus … BBC:
When Theresa May announced on 18 April that she planned to call a “snap” general election, it surprised almost everyone.
Here is her commitment, pre-election:
It was held on June 8th, 2017.
She got back, just, requiring DUP votes in parliament. This is also significant:
All Tory MPs paid lip service at a minimum to Brexit, including Hammond. Brexit was most certainly one of the major factors.
Then started all her dithering and obfuscation, to the point she became known as Appeaser Theresa.
On July 12th, 2018, she suddenly came out with the Olly Robbins excrescence:
… reneging on her Brexit promises, nor did it satisfy the Remoaners favoured by the agreement. It satisfied no one and was rejected three times.
But Johnson liked it, his only issue being over the ‘backstop’.
March 29th then came and went:
Ah, but we did leave according to EU law, according to the provisions of Article 50, this courtesy of Old Rightie:
Here it is again:
“We will deliver Brexit and the United Kingdom is leaving the European Union on 29 March 2019.”
This is what Prime Minister Theresa May told the House of Commons in November 2017.
“We are not leaving the European Union only to give up control of immigration all over again. And we are not leaving only to return to the jurisdiction of the European Court of Justice.”
May used her first conference speech as leader to signal her Brexit red lines – no customs union, no single market membership.
These restrictions, laid out before negotiations had begun and reiterated throughout the process, left May and the EU with very little room for manoeuvre. Without access to a customs union, the EU have been forced to insist on the insurance policy of the Irish backstop which has been the downfall of the deal.
May’s shock decision to call an early General Election was a pivotal moment. With a majority of only 12, May needed to strengthen her hand to avoid making compromises to stave off backbench rebellions.
The logic at the time was sound, with the Tories around 20 points ahead and Labour engulfed by a Corbyn popularity problem.
The result: disastrous. A badly executed campaign caused May to lose the majority and forced her into the precarious position of relying on votes from the unionist DUP to keep her in office.
Then came the Meaningful Vote debacle and her own departure, followed by Johnson’s accession.
The UK did leave the EU on that date, at that agreed time. One legal opinion had it thus:
- Parliament passed the European Union (Withdrawal) Act 2018. Section 20 of that Act (the “interpretation” section) came into force on the day the Act was passed.
- In section 20 “exit day”, that is the day on which the UK will leave the EU, is stated to be 29 March 2019 at 11.00pm. Thus Parliament has decreed that, as a matter of UK law, the 29 March will be “exit day”: a specific date and time.
- As a matter of UK domestic law, that cannot be altered by government statement or any other means than by either repealing that part of section 20(1) or using the means set out in sections 20(3) and (4) and Schedule 7 paragraph 14 of the Act.
- Those provisions of the Act permit a Minister to change the “exit date” by Statutory Instrument (SI) in certain defined circumstances. The Statutory Instrument is subject to the “affirmative resolution” procedure (see Schedule 7 paragraph 14) which means that the draft SI must be put before both Houses and they must both give their approval before the Minister can sign it.
- Section 20(3) sets out the only circumstance in which a Minister can amend “exit day” by this means. It can only be done “if the day or time on which or at which the Treaties are to cease to apply to the United Kingdom in accordance with Article 50(3) of the Treaty on European Union is different from that specified in the definition of “exit day” in subsection (1). In that case, under section 20(4)(a), a Minister can, by regulations, “amend the definition of “exit day” in subsection (1) to ensure that the day and the time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom”.
- Note that this says nothing about whether Parliamentary approval is needed, as a matter of domestic UK law, to agree to an extension of the Article 50 period of two years. Nor does it deal with the process needed in international law. The latter must be governed by whatever process is required under Article 50(3) of the Treaty on the European Union (“TEU”).
- It appears that a letter dated 22 March 2019 from Sir Tim Barrow, the UK Permanent Representative Ambassador to the EU, purported to agree on behalf of the UK to a draft decision of the European Council to an extension of “exit day” to 12 April or, if the PM’s Withdrawal Agreement is passed in Parliament, to 22 May 2019.
- Two issues arise. First, can that letter change what is set out in section 20(1) as being “exit day” as a matter of domestic UK law; secondly, can it bind the UK in international law to an agreement to extend the “exit day” when the UK Parliament has stated, in an Act, that it is to be 29 March and there has been no change by the means contemplated in the 2018 Act?
- On domestic UK law, “exit day” has not been defined by reference to when the EU Treaties cease to have effect in the UK, but by reference to a specific date: 29 March 2019. It must be highly arguable that the date can only be changed by an amendment to section 20(1) or by using the affirmative resolution procedure in Sch 7 paragraph 14, if the circumstances in section 20(3) and (4) apply. But section 20(3) and (4) do not say that the government can change “exit day” or the date when the Treaties will cease to apply to the UK by government action alone, without Parliamentary approval. The opposite is implicit in the need for the affirmative resolution of both Houses.
- It can be accepted that the Prime Minister or HM Permanent Representative to the EU would be entitled, and have the authority, to bind the UK to a new treaty obligation in international law, in this case, the extension of “exit day”. But that power and authority is limited. They cannot bind the UK to a new treaty obligation if to do so would be a manifest violation of the internal law [of the UK] of fundamental importance.
- Whilst Article 50(3) of the TEU does not have the same qualifying words as Article 50(1) for giving notice under Article 50 (“in accordance with [the leaving state’s] own constitutional requirements”) it must be strongly arguable that those words are implicit in Article 50(3). Parliament has defined “exit day” as a specific date. Only Parliament can change that. A government action to try and change that at the international law level by an agreement without Parliamentary approval seems tantamount to flouting the will of Parliament as set out in an Act of Parliament.
- It must be strongly arguable that the requirement to obtain Parliamentary approval for the change in “exit day” is something that is evident and of fundamental constitutional importance in UK domestic law.
- The need to obtain that Parliamentary approval for a change must be equally evident to the EU who must know of the statute and be capable of reading its provisions.
- If this is right, then the actions of HMG, through the Permanent Representative, cannot bind either Parliament or the UK generally on the international law plane so that any purported extension of the Article 50 period would not be valid. At the very least, HMG has acted in a manner which flouts an Act of Parliament and proper parliamentary procedure.
- How should it have been done? There should have been non-binding negotiations with the EU on the new “exit date”. The draft SI should then have been laid before both Houses using the Sch 7 para 14 procedure, with the new proposed date(s) in it. If approved the EU should have been told and it could then make a formal decision. Then the Minister could sign the SI.
- The way the government has acted, by trying to force Parliament to agree to what it has done unilaterally without prior parliamentary approval, is, at the least, highly unsatisfactory. It must be arguable that the government has acted illegally.
Rt Hon Sir Richard Aikens is a former member of the Court of Appeal, and former Vice-President of the Consultative Council of European Judges.
The thrust of that opinion is in support of parliament, not of Johnson and the govt. Yet the naming of the exit date remains. What has happened in parlmt subsequently is about negotiations and deals, not about the exit date itself, which still remains at March 29th, 2019.
Another legal opinion appeared in The Telegraph – click pic to embiggen and click until it does]:
Again, whilst praising the Boris deal and saying it’s not so bad, he also showed that it was quite unacceptable to any who have followed this post sympathetically until now, i.e. true Brexiteers.
Everything else is now theatre
One of the worst aspects of this theatre is this new “Supreme Court”, to which anything legal would be referred by the Guianan in perpetuity, if out of the EU … or to the European Court if still in.
There is also the question of one parliament not being able to bind a subsequent parliament – there was Factortame of course but against that, the Human Rights Act, one saying that a subsequent parliament can be bound and the other that it cannot.
Therefore it depends entirely on who is hearing the case, who is entrenched on the bench, not unlike in the USA, and it really does come down to political will and placemen alone.
If Johnson’s will were not for a mongrel WA or Remain Treaty, which it is, if his will were to honour the result of the referendum, then we’d come back to Isabel Oakeshott:
… and all would be well. No Corbyn danger, no SNP blight.
But Johnson’s deal is in no way Brexit:
… and the tosser Cummings, who hates TBP with a passion, has goaded Boris into brinkmanship, which anyone who cares for a people would never, ever do.
Therefore, on December 12th, this is the only reasonable way to vote if wishing to stay true to the result in 2016 and to the spirit of that result:
– James Higham, 17:29, Wednesday, October 30th