Samizdata

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.