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Theresa May is acting unlawfully

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.

 

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One thought on “Theresa May is acting unlawfully

  1. It occurs to me that there is a possibility that TM is trying to get the courts to declare a No Deal Brexit, thereby removing her (and the Tories) responsibility for it. I admit its a small chance, as I doubt she and her advisers are capable of organising the proverbial, but it could happen, regardless of whether she meant it or not. Friday passes without the proper legalities, a case is brought that we have left the EU, and it goes to the Supreme Court who have to determine the legal position.

    Of course one suspects in such a scenario regardless of the actual legal position they would find for the government because they know who keeps them in the manner to which they are accustomed, and its not (directly anyway) the man on the street. But they would have to think long and hard about flouting the law so openly – its hardly going to do the reputation of the UK legal system much good if its Supreme Court shows itself to be capable of ignoring the law on purely political grounds. But I suspect they would anyway – the short term gain would be irresistible, even at the cost of long term damage. Rather like the way Parliament is acting now, it can’t see that its destroying its own legitimacy in pursuit of the personal agendas of a proportion of current MPs.

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