Martin Howe in the Telegraph confirms the claims I made last week on this blog that the government is trying to unlawfully sign us up to the delay with the EU, disregarding domestic legislation, and disregarding the fact that Parliamentary convention requires any changes to a significant international treaty to have the backing of legislation:
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.
We need a legal challenge. I hope Howe is on the case.
Sir Richard Aikens at Briefings for Brexit also thinks the delay is unlawful:
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.