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The postponement of Brexit: is it legal?

no deal brexit
Written by Richard Aikens

The government has agreed to extend “exit day” to 12 April or, if the Withdrawal Agreement is passed, to 22 May 2019. In trying to force Parliament to agree to this unilateral act, taken without prior parliamentary approval, it may be that the government has acted illegally.

What is the legal status of the UK government’s apparent agreement with the EU to postpone “Brexit date” until 12 April or 22 May 2019 under Article 50(3) of the TEU?  Its acceptance of postponements of the Brexit date places it in a highly unsatisfactory legal position.  The reasons are as follows:

  1. 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.
  2. 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.
  3. 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.   
  4. 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.
  5. 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”.
  6. 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”). 
  7. 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.   
  8. 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?
  9. 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.
  10. 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.   
  11. 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.   
  12. 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.
  13. 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. 
  14. 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.   
  15. 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.
  16. 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.

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Richard Aikens