Theresa May's Article 50 extension is illegal, and will be challenged in the courts
After hours of discussions with QCs and former judges, I believe the British Government’s extension of Article 50 is unlawful.
It is a fundamental principle of UK constitutional law that the Government may not use its powers, including its powers to make international agreements, to frustrate the intention of Parliament. Parliament’s intention is to be found, and is only to be found, in the laws it makes. Resolutions of the House of Commons may sometimes be politically important, but they are of no legal effect unless an Act of Parliament expressly gives them legal effect.
The intention of Parliament is, and remains still, that the UK must leave the EU. This is clear from the legislation to trigger Article 50 (the EU Notification of Withdrawal Act 2017), in which Parliament referred to and declared “the United Kingdom’s intention to withdraw from the EU”. The EU Withdrawal Act 2018 gives effect to the decision to withdraw by repeatedly referring to “exit day”. The Withdrawal Act expressly states: “The European Communities Act 1972 is repealed on exit day”. Parliament originally set that day precisely at March 29 2019, but the Government has purported to extend this by statutory instruments. These can be challenged in the courts.
It is essential to note that Parliament’s legal intention for the UK to leave the EU is not conditional upon a withdrawal agreement. While many MPs have said that they do not want the UK to leave without a withdrawal agreement, and the House of Commons has passed a resolution stating this, the law of the United Kingdom is not affected by their protestations. Our law is simply that the UK must leave the EU.
It follows that when the Prime Minister exercised her power to act for the UK at the EU Council, she was obliged under our law to refrain from doing anything that would frustrate the intention of Parliament that the UK must leave the EU with or without a withdrawal agreement.
These are manifest limitations on the Prime Minister’s competence. They concern rules of UK internal constitutional law of fundamental importance. In these circumstances, I believe that it would be impossible for the Prime Minister, acting lawfully under UK law, to accept an extension of the kind proposed. When I called on her to resign last week in the House of Commons, I reminded her that she had promised over 100 times not to extend exit day.
For the Prime Minister to agree to such an extension in these circumstances is to knowingly use her power in a way that she herself believes would risk frustrating Parliament’s intention that the UK must leave the EU. This is legally beyond the pale.
It is quite obvious from her letter to Donald Tusk of April 5 2019 that the Prime Minister has absolutely no plan regarding the purpose of any extension, other than a hope that some consensus may finally be reached in the Commons or by a Faustian pact with Jeremy Corbyn. This is no reasonable basis for agreeing to an extension that would frustrate the fulfilment of Parliament’s intention by extending exit day to Hallowe’en this year. This outrageous proposal, adding insult to injury with the trick or treat of EU-imposed conditions, provides no proper basis requiring the UK to submit.
The Government’s use of its powers – including the so-called prerogative under which international relations are conducted – can be challenged in the UK courts, as Gina Miller successfully did in the Supreme Court. A challenge in the courts is fully justified in respect of the purported extension of time.
We have been told by the Prime Minister that “we will not have truly left the European Union if we are not in control of our own laws”. The repeal of the European Communities Act 1972 achieves that control as the law of the land. The Withdrawal Agreement drives a coach and horses through the constitutional status of Northern Ireland and undermines the repeal of that 1972 Act.
This is a political betrayal of the referendum vote in June 2016. That vote was expressly given by Parliament under the Referendum Act 2015 to the people and became the law of the land. It cannot be taken back by mere resolutions of the Commons nor by unlawful statutory instruments. Indeed, on Friday evening, five minutes before the deadline on the statutory instrument for the regulations to confer the extension to October 31, I tabled a block against the regulations which continues until the House returns.
Sir Bill Cash MP is chairman of the European Scrutiny Committee and former shadow Attorney General