Every day of the Brexit process brings new and startling turns, but Theresa May’s latest gambit moves events into new realms of astonishment.
On Friday, she instructed Sir Tim Barrow, our man in Brussels, to write a letter to the EU which formally agrees to Article 50 being extended to April 12 (at least), without first waiting for Parliament to approve the extension.
The EU (Withdrawal) Act 2018 governs our exit from the EU. It says that “exit day” will be on March 29. After that day, the European Communities Act 1972 – which gives effect to EU treaty obligations in UK domestic law – will be repealed.
But the 2018 Act also allows “exit day” to be changed – by a special piece of legislation called a “statutory instrument” (SI) – so long as a draft of the SI is approved by a vote in each House of Parliament.
Those votes on the SI are expected this week. But the government is claiming that because of Sir Tim’s letter, the extension has already happened.
Nothing Parliament can say or do can stop it. All that will happen if the SI is voted down, says the government, is that the UK’s internal law will be not be changed to match the new exit date which has been internationally agreed.
So voting down the SI will cause legal chaos because the UK’s internal law will not conform with our international obligations, but won’t actually prevent us from still being an EU member state and bound by the EU treaties for this extra period of time.
The government is effectively saying to Parliament: “Nah nah nee nah nah! You’re too late! You can’t stop it! And if you vote against it, you’ll just cause chaos!”
This is contrary to long standing constitutional convention and practice. Whenever the government proposes to enter into an international law obligation which would require Parliament to change the UK’s internal law, it will not finalise that obligation until Parliament has passed the necessary legislation.
This longstanding practice avoids putting Parliament in the invidious position of being faced with a fait accompli: where it either has to pass the legislation, or take the serious step of bringing the UK into breach of the international obligations which have been assumed by the government.
This convention and practice is just as applicable to a time extension under Article 50 as to a new treaty, because an extension requires UK internal law to be changed by Parliament in a way which will affect the rights and obligations of every citizen.
They will (among other things) remain EU citizens for a longer period, whether they like it or loath it. It also automatically makes the UK liable to pay into the EU budget for the extended period, and it is unconstitutional to incur such a financial liability without a vote by the House of Commons.
And what is the point of Parliament carefully legislating to say that “exit day” can only be changed with an affirmative resolution of each House, if the government can pre-empt those votes and force Parliament into approving the extension because the alternative is chaos?
So Parliament needs to hold the government to account for this appalling and contemptuous behaviour which breaches established constitutional practice.
And what is the legal position? In the Gina Miller case, the government’s prerogative powers could not be used to give notice under Article 50 because that would affect rights and obligations of people in the UK.
The Supreme Court held this was contrary to the intention of Parliament as reflected in the European Communities Act 1972.
Similar logic would seem to apply to an extension of time under Article 50. Since Parliament has provided in the Withdrawal Act a special procedure which requires votes in each House of Parliament before the UK’s internal law can be changed apply EU law for the extended period, the argument is that the government cannot use prerogative powers to pre-empt the procedure laid down by Parliament.
It seems that Theresa May’s premiership has now reached a reckless and desperate (and probably terminal) phase in which she is willing to depart from constitutional precedent in order to pre-empt the tiresome necessity of a Parliamentary vote.
If constitutional proprieties are not sufficient to rein in her conduct, the next step may have to be a legal challenge to the validity of the Sir Tim Barrow letter on similar grounds to the Gina Miller case. The present extension is only for two weeks until April 12, if her deal is not passed this week. But it is possible that she will then seek a much longer extension from the EU.
It ought to be inconceivable that any Prime Minister could rush off and bindingly agree under international law something as serious as an Article 50 extension to the end of the year – or even to the end of 2020 – without Parliament having first approved the necessary legislation, but there is every reason to fear that this is what our rogue Prime Minister could do.
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