Ever since MPs first voted to trigger Article 50 everyone has been told that Britain, by law, will be leaving the EU on 29 March. And if that date was ever to change, then Parliament would have to vote for it to change. That’s the British constitution which can be summed up in eight words: ‘What the Queen-in-Parliament enacts is law.’ As the Supreme Court debacle reminded us, only Parliament can change laws that Parliament makes. So unless Parliament can approve a new Brexit plan, then we leave on Friday next week.
Only this week it all got a bit complicated. After the Prime Minister sought an Article 50 extension in Brussels this week, EU leaders offered her two options: 1. For Article 50 to be extended until May 22 on the condition May passes her deal 2. For Article 50 to be extended only until 12 April if no deal is passed. This has led many Brexiteers to ask whether it is still possible to leave as originally planned next Friday. A former government aide accused No 10’s Director of Communications Robbie Gibb of telling hacks that the Government was not even planning on changing the UK legislation at all, and that apparently this would not be necessary as EU law takes precedence over UK law.
Mr S has now been passed a leaked briefing note from inside Number 10 which suggests the government would be able to brush Parliament aside and delay Brexit by Prime Ministerial edict. It is a confidential briefing note, offering answers to questions. The document asks if Theresa May has the ability to extend the Brexit deadline unilaterally, or if she first has to seek parliament’s approval, noting that Speaker John Bercow has said that the agreement of the House is necessary for any extension. But the briefing concludes that since MPs voted for the government to seek an extension on 14 March, that now:
‘Making the request and agreeing it with the EU is a matter for the government.’
Under this interpretation, Theresa May could declare – contrary to what she has been saying for the last two years and what everyone (including the Speaker) understood to be the law – that she does not need to consult parliament if she wants to agree an extension with the EU.
The document points to the chaos that such a plan would cause. The date of Brexit would still need to be changed in UK domestic law. To do this, the briefing note says that a Statutory Instrument would have to be approved by both houses of parliament before 29 March. And if it doesn’t, the No10 memo admits her policy will create a ‘clash in UK law’ because domestic legislation preparing the UK to leave would kick in. But we would still be a member of the EU in international law. This, according to the briefing, would create ‘severe uncertainty’ for businesses and citizens. That’s a bit of an understatement. It’s a legal and constitutional minefield.
Little wonder then that No. 10 have confirmed that they will bring forward the necessary legislation for the extension next week, and both Houses of Parliament will need to debate and approve that legislation next week.
The question is: what advice will May go on if MPs refuse to approve the Statutory Instrument next week?
The relevant section is in full below:
[EXTRACTS FROM LEAKED No10 DOCUMENT]
UK PROCESS TO IMPLEMENT EXTENSION
If an extension is agreed with the EU, how would you amend the exit date on all relevant legislation?
• The EU (Withdrawal) Act 2018 contains a power — in Section 20(4) — to amend the exit day through a statutory instrument.
When is the deadline to lay the SI?
• The SI would need to be approved and come into force by 29 March.
Does the SI need to be approved by Parliament?
• There would be a debate and decision taken in each House.
The Speaker said on Tuesday 19 March that the agreement of the House is a prerequisite for an extension. So doesn’t the Government have to ask Parliament before it requests one?
• The House voted to seek an extension on 14 March.
• Making the request and agreeing it with the EU is a matter for the Government.
What would happen if Parliament votes down the SI?
• A rejection of the SI would create a clash in UK law, because a large volume of EU exit legislation preparing the UK statute book for the moment EU law ceases to apply is due to enter into force automatically on ‘exit day’.
• As a result, contradictory provisions would apply both EU rules and new UK rules simultaneously. This would cause severe uncertainty for citizens and businesses from on 29 March.
• It would not stop the extension being agreed or coming into force, that is a matter of EU and international law, not domestic law.
When will the Government bring forward legislation? Before or after the extension is agreed with the EU?
• An extension of Article 50 will require agreement with the EU. Legislation changing exit day as a matter of UK law cannot enter into force until that agreement has been reached.
PRACTICAL IMPLICATIONS OF EXTENSION
What would be the impact on the financial settlement?
• We have reached a fair financial settlement with the EU, honouring commitments we made during our period of membership, in the context of the deal as a whole.
• As an EU Member State during an Article 50 extension period, we would continue to have rights and obligations until our exit.
Would this delay the UK’s withdrawal from the Common Agriculture Policy and Common Fisheries Policy?
• As long as the UK remains an EU Member State it will be part of the CAP and CFP.
• The Government remains committed to establishing fairer farming and fishing policies that truly work for rural and coastal communities.
• The deal we have agreed with the EU would see the UK leave the CFP and CAP, providing the UK with full control of its waters as an independent coastal state and the opportunity to develop a new domestic regime which meets the needs of the rural farming community.
Would an extension affect citizens’ rights agreements?
• The Government has reached a fair and comprehensive agreement with the European Union which protects the rights of EU citizens living in the UK and UK nationals in the EU
• An extension to Article 50 will have no impact on the robust protections set out in the Withdrawal Agreement.
• As the Prime Minister has made clear throughout this process, protecting the rights of EU citizens in the UK and UK nationals in the EU has been the Government’s first priority.