The good folk at Lawyers for Britain have published a short paper by an eminent QC, recently retired, on whether or not the latest ‘extension’ of the ‘Article 50’ 2 year period for making arrangements to leave the EU is valid, if it is not, the upshot of this would be that the UK left the EU at 23.00 hours on 29th March 2019 (without anyone realising it).
The author of the piece, Stanley Brodie QC, puts his argument around the way in which Article 50 is worded, and suggests that there was only power within Article 50 for one extension to the negotiation period, which the hapless Mrs May used up in her botched attempts at getting an extension to ram through Parliament her ‘Withdrawal Agreement’.
Our learned friend’s view of the proviso for an extension of Article 50 includes:
The proviso could not be used to reopen, or continue, never ending debate. Nor can it be used as a general power to extend time.
One might hope, but this is the EU. He also says that when the EU made a counter-proposal for extension of the negotiation period with the UK, this was not lawfully done.
On 25th March 2019, the UK government set out its plans for delaying departure, in brief, there was this announcement:
“3. However, the agreement reached with the EU provides for two possible durations:
a. An extension to 11pm on 22 May 2019 if the House of Commons approves the Withdrawal Agreement by 29 March; or
b. An extension to 11pm on 12 April 2019 if it does not, before which the UK would need to put forward an alternative plan on decide to leave without a deal.
4. The Government has therefore laid today, Monday 25 March, a draft SI under Section 20(4) that provides for both these possibilities; …”
Mr Brodie’s view includes the following:
The Agreement provides for two possible durations; whereas the proviso to paragraph 3 provides for a unanimous decision “to extend this period”. The two concepts are wholly different. Extending “this period” is one outcome; two possible durations, without any certainty, are certainly something else, not authorised anywhere in Article 50. If one can have two hypothetical durations, can one make an Agreement under Article 50 which includes more than two durations – a kind of take your pick deal? It is obvious that such an arrangement would be incompatible with the need for an orderly, or credible exit from the EU. The conclusion, I would suggest, is that the Agreement used and implemented by the Prime Minister, Mr Barnier and President Tusk was unlawful and ultra vires Article 50. It was without any legal foundation in accordance with Article 50. Purporting to use their Agreement as compliance with the requirements of Article 50, paragraph 3, and in particular its proviso, was unsustainable. That meant that the illegal nature and purpose of the Agreement invalidated it; there was no unanimous decision to “extend this period”. The requirements of Article 50 were ignored. It was not an application to extend this period as required by the proviso.
Our learned friend also takes issue with the advice given by Civil Servants to Parliament (well, the House of Commons iuam) about what was going on around the various extensions, I have added some emphasis:
5.2 Next, on or about the 14th March the Government issued a note entitled Parameters of Extending Article 50. It contained inter alia the following statement:
“What are the legal requirements for an Article 50 Extension set out in the EU Treaties?
The Article 50 period is set at 2 years unless, as provided for in Article 50 “the European Council, in agreement with the Member State concerned, unanimously decides to extend [it]”. Article 50 does not establish any upper limit on the length of an extension. However, given the Article 50 period is explicitly time-limited, any extension would have to set a specific end date, because it is necessary for reasons of legal certainty to be clear on the date on which the UK will leave the EU.”5.3 It is at this point that there occurs a curious mishap. The first and second lines of the quotation purport to be an accurate reproduction of Article 50. They are not. If one looks at Article 50, it is apparent that the last three words of paragraph 3 are “extend this period”; but in the quotation the last two words are “extend [it]”. So the version put out by the civil servants was false. The differences in meaning between the two versions were considerable.
(a) The true version
Under this version the EC and the Member State can agree to extend “this period”. This period is the two year period after which the Member State ceases to be a member of the EU automatically. But it would appear that the power to extend Article 50 can only be used once; “this period” appears to be limited to the two year period, making it clear that no further extensions to Article 50 could be made. That would certainly curtail any power to make any further extension.(b) The false version
The last four words of this version of Article 50 now read “decides to extend it”. The wording of this version is apt to enable the Prime Minister to seek as many extensions to the Article 50 process as she wishes; she is no longer inhibited by the restrictions contained in Article 50. It is relevant to point out that in the Parameters paper there appears this statement at paragraph 2:
“This paper provides a factual summary to inform parliament’s debate on that motion”.
5.4 So the civil servants responsible for briefing parliament to enable an informed debate to take place, themselves were misleading it. The alteration of the text of Article 50, and of the proviso to paragraph 3, must have been deliberate.The beneficiary of this misconduct was the Prime Minister, who could and did arrange for extensions of time without hindrance. The text of the Parameters paper makes it clear that the civil servants had no qualms about extensions or their supposed length and legal foundation. October 31st 2019 is the latest.
This is a truly alarming state of affairs; it should be exposed sooner rather than later.
In summary, he includes the following:
(i) The application by the Prime Minister for an extension of time until June 30th under the proviso to Article 50, made on or about the 14th March 2019, was legally valid, but was rejected by the EU.
(ii) This was followed by the Agreement proposed by the EU. It did not comply with the terms of the proviso; nor was Article 50 referred to or relied on by the EU. It was not effective to stop the Article 50 process running up to and including the 29th March at 11 p.m. Whichever way one looks at it, the Agreement was either unlawful or made for an unlawful purpose or ultra vires .That means that the UK left the EU on the 29th March 2019 by default as there was no valid or lawful impediment to prevent it.
I am not aware of any proposals to test these arguments by seeking a declaration from the High Court, which would be the usual method for deciding a question of law regarding the UK’s affairs. I would say that even if these arguments have merit, I am afraid that I doubt that any application would get a fair hearing in the UK.
However, wouldn’t it be a superb outcome for Mrs May to have taken us out of the EU by accident without realising, and therefore to have resigned by mistake, should she carry out that avowed intent? She would become the ultimate, Universal Champion clusterf*ck politician of all time, although she’s probably made that podium already.
ADDENDUM: APL points out that there is apparently a legal case brought by Robin Tilbrook of the English Democrats. The most that I can find about his case, which appears to rely on some other matters, is here.
How would we be going about proving this in the courts? The other side seem to have no problem getting court time….
Well, I’ve just read the paper, and I have to say his argument doesn’t look valid to me. But what do I know?
Amusing as the result might be politically, I don’t think the legal ramifications for everyone else would be pretty. It would be like the airliner captain making a cabin announcement: “Hey! Wouldn’t it be really funny if it turned out we forgot to refuel before we set out across the Atlantic?”
Jon,
The process would be, AIUI, for an ‘interested party’ (which could be virtually any real or legal person, to ask the High Court to rule on the effect of HM Government’s action in agreeing an extension for Article 50, and for a decision (or Court Order) ‘quashing’ the decision as ultra vires or beyond the power of the Prime Minister (or the relevant Secretary of State). The effect would be to state the current state of the law, subject to a final appeal.
To me, it looks a bit wistful, and ignores the likely unwillingness of the UK’s judiciary to countenance such an outcome, a return of Lord Denning’s ‘appalling vista‘.
That’s where I think this falls down. Once they redefine “this period”, I think the new definition substitutes back into the original terms and becomes “this period”. So long as they keep amending “this period” within the new definition’s time constraint, I think they could keep doing so without limit. What they can’t do is attempt an amendment after the most recent “this period” has expired.
But, if nothing else, until it’s litigated, it’s one more point of negotiating power. I’ve seen weaker arguments prevail.
Why should the law, or the agreement, matter? We’re talking politicians here. They can do anything they want, as long as enough of their ilk approve; and it’s fairly obvious the majority of politicians do not want Brexit. Why should they care about the referendum?
“Why should the law, or the agreement, matter?”
Because the law is the basis of their perceived legitimacy, and hence their power. Why should anyone else pay any attention to what they say, except that the law requires it? Break that, and you break everything.
However, you’re missing a rather big point, which is that Article 50 itself is part of EU law, not UK law. Any treaty has to be ratified by an act of Parliament. The treaty is the agreement between nations under international law ( Vienna Convention on the Law of Treaties), but it only becomes UK law when Parliament agrees to it. Every international treaty has a corresponding Parliamentary act.
Thus, Parliament could repeal the act, or pass an act requiring us to abide by EU rules indefinitely, whatever the status of Article 50. Parliament is sovereign. But if we pull out without satisfying the treaty requirements we’re in breach of international law, and if we declare we’re staying in without the EU’s agreement they’re under no obligation to pay any attention to that, and almost certainly won’t. The question of legality is not up to the MPs. It’s about international law, and whether the international community accepts it.
Even if the high court say we’re out, if the EU disagree, they can accuse us of breaching an international treaty, and that would likely result in none of our other treaties being trusted. That would wreck more than just our trade!
It’s a weak argument. Once Article 50 is invoked, three conditions obtain:
1) The parties agree to separate as soon as possible.
2) The parties agree to negotiate but one becomes intransigent.
3) The parties agree to negotiate for as long as is necessary.
Article 50 covers the first case by specifying “up to two years”, a period which includes “immediately”. When one side becomes intransigent the two year limit prevents one side extending the negotiations unilaterally. Finally, Article 50 specifies that if both parties agree, the period may be extended.
So Article 50 covers all possible cases and you would be trying to argue that it does not. Good luck with that.
I agree with bobbyb that the argument seems weak when it comes to multiple extensions. When you extend something, the something remains the something, in extended form. It is not a new thing. See your tum after a large meal.
In any event, the ECJ would be the court adjudicating the meaning of this, and it’s not actually a court. And even if it were an actual court, yer continental lawyer is not so much for this old English style of carefully parsing words and sentences, and is much more for the general smell of the thing.
Which is yet another good reason for leaving the EU, which adds a third arm to the push for make-it-up-as-you-please judgifying – adding to the judiiary’s natural confidence that “we know best” (Lord Denning one step forward) and the gales of divine-the-intent guff blowing across the Atlantic. It may be too late to save the old style English (and Scottish) judiciary, but at least if we can excise the cancer of EU law and EU legal princples from our system, there’s a chance.
Mr Ed: “if it is not, the upshot of this would be that the UK left the EU at 23.00 hours on 29th March 2019 ”
Mr Ed: “I am not aware of any proposals to test these arguments by seeking a declaration from the High Court,”
Apparently, Robin Tilbrook of the English Democrats has just such a case before the court now.
Naturally, the BBC is giving it much publicity.
The objections raised in other comments seem valid to me. I have 2 objections of my own.
1. I fail to see the difference between “extend this period” and “extend it”, when the referent of “it” is “this period”.
2. Given that the extension initially requested by the British government was not granted, it is not the case that a 2nd extension was illegally granted: only one extension was agreed to.
I don’t really see the point of all this angels-on-the-head-of-a-pin stuff tbh. The EU is a “rules-based organisation” only insofar as those rules promote and extend “the Project”. As soon as they do not, they are ignored.
If it were not so, Greece would not be in the Euro, France would be suffering sanctions for breaking the rules about public spending/borrowing, and Germany would not be running whatever gigantic trade surplus they are running now.
Ellen is right.
No it would have no such effect. Firstly for the same reason that the OP argument, if correct, is unlikely to have any effect while nether the UK government nor the EU government wish it to. Secondly, because everyone knows that we have met the two-year article 50 requirement and are now still in the EU on a technicality, so if we then leave on a technicality no-one will think it reflects in the slightest on any other treaty we are in.
It is possible that this might give the next prime minister (if wishing to) the ability to declare us out of the EU without needing a vote of parliament, but while I expect we shall leave, I would not pin any great hope on that particular method.
Sorry to be OT but I thought that some here would find this interesting:
https://www.boredpanda.com/new-shape-flying-v-plane-studio-oso/?_t=1&_f=featured
I wouldn’t want to sit far out on the wing tip of that plane when there is a bit of turbulence. It would become a sea of sick.
“Secondly, because everyone knows that we have met the two-year article 50 requirement and are now still in the EU on a technicality, so if we then leave on a technicality no-one will think it reflects in the slightest on any other treaty we are in.”
But it’s not a “two-year article 50 requirement”. It’s a “two-year-unless-extended-by-mutual-agreement article 50 requirement”. It was extended. We’re in until either a deal is agreed and comes into force, or the extended period expires. You can’t break contracts on technicalities unless the technicality is valid, and this one isn’t. And even if the high court decided in its favour despite it being invalid, the EU would just point out their reasoning was invalid and it’s a breach of the treaty under international law. Which it would be.
While the UK Parliament and UK courts can to some degree declare that black is white with regard to UK law, they have no say over international law. As noted, it will likely be the ECJ (or possibly ICJ) that makes the decision. Although frankly I can’t see them wasting any time asking because it’s obviously a spurious argument. There’s nothing in Article 50 to forbid multiple extensions for as long as all parties agree to keep talking.
“It is possible that this might give the next prime minister (if wishing to) the ability to declare us out of the EU without needing a vote of parliament, but while I expect we shall leave, I would not pin any great hope on that particular method.”
Me neither! All the next PM has to do to get out of the EU (if wishing to) is to not request another extension (as if the EU would be willing to give us one!) Then we’re out at the end of October, whether Parliament votes for it or not.
The only question under discussion is whether we leave with a deal or without a deal. To leave with a deal, Parliament would have to be arm-twisted into voting for May’s deal (the EU aren’t going to negotiate another one). The only reason for extending it any further is if we can convince the EU that we’re almost at the point of getting the deal agreed. But we’re not going to be. After May destroyed herself politically trying to get it passed, and surrendered when it became obvious that it couldn’t be done, no other prime minister is going to want to follow in those footsteps. They’ll either make a show of going through the motions but without enthusiasm, or (especially if it’s Boris) they’ll just draw a line under it, tell those still arguing that if they can get enough votes together then come back, but that otherwise we start preparing seriously for ‘no deal’. The only thing that can feasibly stop ‘no deal’ is if enough MPs become desperate enough to avoid that that they agree to some variant on May’s deal, anyway. Probably at the very last minute, and so imposing the maximum amount of chaos and uncertainty. I’d not put that past them. But one way another, we’re almost certainly going to leave the EU at the end of October.
‘Papers’ like this one seem to me like they’re out of some sort of paranoid legal dreamland. Or possibly they’re intended as campaign propaganda for the proles, to keep them fired up. I’m not sure. But I’m not impressed.
There could be a slam dunk legal case that we had left on the 29th March, and the UK courts would declare otherwise in total defiance of the law, because they are a political institution as much as anything else. They will NEVER find against the State in favour of an individual when that judgement would fundamentally weaken the power of the State, or threaten it in some existential way. Then they will always side with those who pay their salaries and keep them in the manner they are accustomed to. They are bought and paid for by the State and know who to back when the chips are down.
What Jim said, unfortunately.
As I’ve said on my own blog, I would love it if Tilbrook’s case, or this case for that matter, won, but I think there is no chance in hell that the courts — and I mean even the English courts — would let it win. They’re active, not passive, participants.
The key fact is that on March 14, 2019 the House of Commons did not agree a motion that allowed an unspecified extension of the two-year limit.
https://www.parliament.uk/business/news/2019/march/house-of-commons-to-vote-on-article-50-extension/
The text reads:
The House of Commons approved an extension for the period ending 30 June 2019. The EU rejected this request for an extension. Therefore it cannot be said that “the European Council, agreement with the Member State concerned, unanimously decide[d] to extend the period” as the proviso states in Article 50.
The UK did not agree to extending the delay beyond 30 June 2019; the UK agreed to extend the delay to 30 June 2019, which was rejected by the EU. Prime Minister May consenting to one of the two extended deadlines counter-offered by the EU when the EU rejected the UK’s request does not obviate the obligation of the House of Commons to agree the extension offered by the EU in order for the UK to have legally agreed to the 30 June 2019 deadline according to its domestic legal process.
Every motion regarding Brexit has required the approval of the House of Commons – the activation of article 50, various Brexit deals proposed by May, and the extension of the two-year delay period ending 30 June 2019.
Since it cannot be said that “the European Council, agreement with the Member State concerned, unanimously decide[d] to extend the period” as the proviso states in Article 50, the extension of the two year delay was not properly agreed in accordance with the Article 50 proviso on the matter so it can be argued that the UK legally Left the EU already.
I would say that there is a legitimate argument that the UK legally Left the EU on March 29, 2019 given that it cannot be said that “the European Council, in agreement with the Member State concerned, unanimously decide[d] to extend the period” as the proviso states in Article 50 because such a decision to extend was not unanimous given that the UK never did agree to the extension offered by the EU and that no specific date was agreed to by the EU as well as the UK.
However, it could be argued that such a judgment could perhaps only be made by an EU Court, which would never rule in favor of UK sovereignty, obviously.
But the UK is entirely within its rights as a sovereign country to decide in ITS OwN COURTS the following:
Brexit. Delivered.
If the power “can only be used once” then we did not leave the European Union on March 29th – we left on April 14th, as the power was used to change the date for March 29th to April 14th (for additional talks).
If there was no legal power to extend matters a SECOND time – then we have been in an ILLEGAL situation since April 14th.
Of course no real “talks” have occurred either – as the E.U. has made clear that it will NOT change the proposed sell-out surrender “deal” (it is “not open to re negotiation”).
However, a vital point must be considered.
Most of Parliament and many modern Judges have a deep HATRED of this country (they are the products of the education-system), they will “interpret” the law in whatever way does the most harm to the independence of the British people.
The election of Parliament by the people has proved to be a weak reed – as most of the candidates for the House of Commons just LIED in the 2017 election, they pretended that they accepted the result of the 2016 referendum for independence, but they actually opposed the result of the referendum and were (and are) working to keep the British people under the rule of the European Union.
The establishment (including most of the House of Commons) has revealed itself to be deeply hostile to the British people.
Paul Marks: “The establishment (including most of the House of Commons) has revealed itself to be deeply hostile to the British people.”
There could probably be a useful discussion about what actually motivates the UK Establishment. Is it actual hostility to the British people? Or have the Establishment simply fallen into the “Agent” problem where they are pursuing their own best interests instead of looking out for the interests of the people whose agents they are? Or is it peer pressure from the Davoise? Or are they all simply preening idiots?
The key issue is — Will separation from the EU mean only that intrusive authoritarian rule by distant clowns in Brussels gets replaced by intrusive authoritarian rule by the closer clowns in Westminster? Because if that is the outcome, “independence” from the EU is going to turn out to be a Pyrrhic victory for the doughty Brexiteers.
It is fascinating that there has been so little reported discussion in the years since the Referendum on what needs to happen on the day after Brexit. Our host on this site has suggested (quite reasonably) that the BBC needs to be cut loose and the Civil Service needs to face drastic cutbacks– but it is very rare to see any such comments. Where are the proposals about rolling back excessive regulations; instituting term limits for MPs; replacing or ending the antiquated ineffective House of Lords; moving Parliament out of London to (say) York?
Most likely, self-interest.
The most probable cause for the mess at the moment is that the Government have been trying to get a Deal with the EU, on the understanding that that’s what was promised pre-referendum, and that No Deal is “scary” to a lot of people. So they’ve tried for a Deal (in order to protect their own self-interest and stay in power), turns out it wasn’t the easy thing that it was made out to be, and here we are.
Is May’s deal the best deal that could ever have been obtained? Maybe so, maybe not. Who knows? Not us, that’s for certain. Possibly. But that’s what we’ve got, so now we are where we are. The EU did not bend over for us and give us a custom deal. Instead they acted in their own self-interest – as they should.
Did May et al get the Deal in good faith, intending to implement Brexit? Maybe not. But in all probability, yes. For May to destroy her career and legacy in an act of sabotage is very unlikely, in my view.
It’s possible, and it’s something that concerns me greatly. Not enough to have changed my vote, but enough to make me not a full-throated “everything’s going to be great!” Brexiteer. The EU held back May’s Snooper’s Charter, and they would hold back some of Corbyn’s wilder state intervention (so I understand, I won’t pretend to fully understand the rules on such). So, yes, it’s possible.
As to what needs to happen?
Remove regulations from the bottom up, remove welfare from the top down. Pause and review. Repeat.
Simple!
“The most probable cause for the mess at the moment is that the Government have been trying to get a Deal with the EU, on the understanding that that’s what was promised pre-referendum, and that No Deal is “scary” to a lot of people.”
I expect they’ve been briefed on some of the possible consequences. I was looking into the CHIEF upgrade mess myself the other week, and given the way government IT projects go, I find it hard to believe that they’ll execute the change overnight to 80% of our international trade without massive disruption. I’m sure it’s survivable. But I feel that a lot of the people airily waving their hands and saying ‘No Deal’ will be ‘No Problem’ are doing so without any actual knowledge of the issues involved. It’s an article of faith. And import/export happens automagically all by itself.
“The EU did not bend over for us and give us a custom deal.”
I think it’s possible/likely that they were/are considering it. But they didn’t want to start the trade negotiations with Britain holding all the aces.
No one seems to have suggested that the UK ‘crashed in’ to the EEC back in 1973, so why should anyone talk of ‘crashing out’?
There was a court case that ruled May could not trigger Article 50 Brexit without a vote of Parliament. Then asking for the extension to April 12 was done without a vote of Parliament, and is therefore invalid.
What is CHIEF?
My own (narrow) issue is that we have to stockpile (again!) in October.
As a company whose financial year runs with calendar, and who has 60-day terms (shout if I’m using jargon), can you see why this is an issue?
That’s just short term. Exchange rates also come into it in the medium term. Long term – who knows?
“What is CHIEF?”
‘Customs Handling of Import and Export Freight’ is the government IT system used for making customs declarations. It’s 30 years old (built by British Telecom, if you can believe it), was due to be scrapped 7 years ago but the replacement project got put out of its misery, and the new replacement system (CDS) is still in the early stages of being rolled out and is late and, so far as I can tell, still incomplete. The National Audit Office have written some disparaging words about progress a few years back.
CHIEF currently handles about 50 million transactions a year. A No Deal Brexit would mean that potentially all the European traffic, that currently requires no full customs declaration, would suddenly have to be handled by CHIEF. That would put it up to about 250 million transactions a year – rather a big step! The project to expand its capacity was underway in the last couple of years, due to complete in time for March 2019, but I’ve not seen anything saying it has delivered. In addition, there would be around 150,000 new companies who currently only trade with the EU who would have to install and learn how to use CHIEF.
Can you even conceive that typical government incompetence will manage to get all this developed, delivered, and implemented smoothly on the 1st of November with no delays, problems, system failures, screw ups, or outright queues-from-London-to-Dover traffic jams of lorries queueing to cross? And that’s without even trying to imagine what the hell is going on across on the other side of the Channel…
https://www.instituteforgovernment.org.uk/sites/default/files/publications/IfG_Brexit_customs_WEB.pdf
Humans are enormously ingenious problem-solvers, and I expect that once they start to try doing it, the problems will be quickly identified and workarounds developed. I’d think it would take them a few months to get it sorted out, but after that things should improve. In the long run, it’s a blip, and not worth stopping Brexit over. However, I expect it’s going to cause a few problems, and that the Remainer media are going to play it up for all its worth. It would be kinda nice if Leavers could demonstrate that they were aware and had a position on this incoming issue in advance of it hitting the fan.
But no doubt somebody has got a plan. It did occur to me that one reason they might have asked for the delay to October was that they were still scrambling to get the infrastructure in place. But am I being too cynical in suspecting their motives?
Maybe. But I’d guess not.
My opinion is that “we” have realised that no-deal is the most likely outcome, having realised that a deal cannot satisfy.
For the record, I don’t share your optimism that we’ll leave on 31st October. I believe, more than you do, that “revoke” is a plausible outcome.
But.
If nothing else, I think that we’ll be better prepared for No Deal in October than we were in March.
The handwaving “no deal is fine, we didn’t have a deal in 1972 so why are we worrying?” approach is so obviously dumb that I won’t address it.