A potentially nasty issue raises its head, which most people, including me, have had no clue about.
In the Hansard Society blog post I mentioned in my last post it is noted that we have two distinct exit dates in play. One is the exit date in the international treaty between the UK and the EU. The other is the exit day specified in the domestic European Union (Withdrawal) Act (EWA). But the Hansard Society post suggests that it’s the EU-UK treaty that really counts. That’s the international treaty, and international treaties take precedence over domestic law according to the Vienna Convention. Besides, the EWA is really just about making all sorts of legislative changes to UK law to allow the UK to operate independently of the EU after exit day. The dates in both of these things need to match exactly for it all to work smoothly, of course, but the two things, the UK-EU treaty and the domestic EWA, are distinct. And its the UK-EU agreement that sets the departure date, not the EWA.
Suppose then that it is not possible for Parliament to change the exit day in the EWA by 11pm on March 29, either because Parliament does not approve the relevant SI to change the date in the EWA, or because time runs out. We’ve all been assuming that that means that a No Deal Brexit happens. But does it? What if May has agreed an extension date with the EU before then? Might it be claimed that that this extension date is now, legally, the new exit day, regardless of what the EWA says? According to the Spectator, that is exactly what the government is quietly saying:
As we wait for the text of Theresa May’s letter requesting an Article 50 extension, it is worth remembering that once the UK government and the EU have agreed an extension then the UK will continue to be an EU member under international law—and international law trumps domestic law.
A Department for Exiting the European Union briefing note for ministers points out that the Vienna Convention declares:
‘”A party may not invoke the provision of its internal law as justification for its failure to perform a treaty.” As a matter of EU law, it follows that in these circumstances we would remain a member state after 29 March, and the EU law consequences of that would continue to flow in the UK.’
What this means, in layman’s terms, is that even if parliament was prorogued or the statutory instrument trying to change the date was somehow defeated in parliament, the UK would still be regarded as an EU member under both EU and international law.
If this seems far-fetched, the Hansard Society agrees:
The date on which the UK leaves the EU is an international matter. Once the UK triggered Article 50 of the TEU, notifying the EU of its intention to leave, the date on which Brexit occurred would be determined within the UK-EU relationship and governed by the terms of Article 50.
Okay, so what are the relevant terms of Article 50?
Under TEU Article 50(3), “The (EU) Treaties shall cease to apply to the State (which has notified its intention to withdraw) … from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification … unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.” [My underlining.]
So the UK and the EU can agree to extend the period that UK stays in, by, er, agreeing just that.
In other words, the UK leaves the EU on 29 March 2019, two years after it notified the EU of its intention to leave, unless either:
- a ratified and in-force Withdrawal Agreement with the EU provides for a coming-into-force date for itself other than 29 March; or
- in the absence of a Withdrawal Agreement, the UK and the remaining 27 EU Member States agree that the EU Treaties will cease to apply to the UK on a date later than 29 March. [My underlining.]
Thus the extension comes into force simply by the UK and the EU agreeing it (and there being a definite end date to it rather than something open-ended).
So the key issue here is, what decides whether an agreement has been reached between the UK and the EU to extend the Article 50 process and thus keep Britain in for a longer period? What decides whether the UK has agreed an extension? Is it just Theresa May agreeing it at the EC meeting on Thursday? Or does the date have to be approved by the UK Parliament? I’m no expert on this, but past history tells us that the UK has signed up to all sorts of international treaties by the PM agreeing, without bothering to get agreement from Parliament about it.
So I have a horrible feeling that this is where the real stitch up may lie. Everyone’s attention is elsewhere: on Bercow’s intervention, how long a delay May will ask for, whether all the EC countries will agree an extension, and on whether the relevant SI can be passed by March 29. Few have noticed that May could (if this reasoning is correct) get an extension all by herself, regardless of what happens with domestic UK law, or Parliament (and assuming none of the EC countries disagree, not that that’s a given).
But, you may say, if that were true, then why couldn’t May just sign her Withdrawal Agreement with the EU without bothering to get it through Parliament? There is a difference with that, though, and that is that as British PM she is subject to British law, and the Gina Miller case resulted in the British courts saying that she can’t sign us up to that. But there’s no such British law preventing her from signing us up to an extension. So she could.
It may be that she wouldn’t actually sign on the dotted line with the EU until she had got approval from a Parliamentary vote. Maybe, but what Parliamentary vote would that be? As far as she’s concerned, she’s already been given permission by Parliament to get an extension with last week’s vote.
There is, of course, a vote scheduled next week on the SI to change the exit date in the EWA, and that may seem to everyone to be the relevant vote, but as I’ve been saying, the EWA does not set the exit day. The EWA only concerns getting our law to fall into place with the real exit day which is in reality determined by the UK-EU agreement. Don’t put it past May to pull out of her hat at the last minute the claim that the extension has already been agreed, and Parliament can’t now stop it. The quote from the Spectator suggests that this is the plan. It would be incredibly underhanded, of course, but that’s how May and her team have been playing for the last three years.
What needs to happen is that Cabinet, Parliament, and anyone with any power or influence needs to demand of May that she does not sign anything with the EU regarding an extension unless she can get Parliamentary approval for it next week. She can get an agreement in principle, subject to a Parliamentary vote in time, but she cannot sign anything. But it doesn’t look likely that this will happen, because hardly anyone realises that this threat exists.
Update: A short delay isn’t necessarily a problem, though:
PM's allies now expect her to apply for just one A50 extension of 3 months on Weds – but Remain ministers warn that will delight ERG, who will run down the clock for No Deal on June 30 (2)
— Tom Newton Dunn (@tnewtondunn) March 19, 2019
Update: I think the idea is that in the scenario where the SI doesn’t pass by Friday 29th, but she’s signed the extension before then having got Cabinet or parliament ‘approval’, she’ll say the SI will just have to be passed late because the extension is already law.