Another solicitor's view on the Defend Brexit case
This is another solicitor's view on our case:-
Section 20(4) European Union (Withdrawal) Act 2018
‘A Minister of the Crown may by regulations-
amend the definition of ‘exit day’ in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and amend subsection (2) in consequence of any such amendment’
The language ‘Treaties are to cease to apply’ derive from Article 50 of the Treaty on European Union
Article 50 of the Treaty on European Union
Article 50.1 ‘Any Member State may decide to withdraw from the Union in accordance with
its own constitutional requirements.’
Article 50.2 ‘A Member State which decides to withdraw shall notify the European Union of Its intention. In light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.’
Article 50.3 ‘The Treaties shall cease to apply to the State in question from the date of entry
Into force of the withdrawal agreement or, failing that, two years after the notification
referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.’
At the time of drafting and subsequent enactment of the European Union (Withdrawal) Act 2018 the legal default position (in the absence of a concluded withdrawal agreement) was that the United Kingdom would leave the EU on 29th March 2019 at 11 pm. This flowed from the European Union Referendum Act 2015, the result of the 23rd June 2016 referendum for the United Kingdom to leave the European Union, The European Union (Notification of Withdrawal) Act 2017 which conferred power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU (as established by the 2016 referendum), the Prime Minister’s letter of 29th March 2017 notifying the European Council of the United Kingdom’s intention to leave the EU and the provisions of Article 50.
Accordingly, when enacted and for many months thereafter the definition of ‘exit day’ in the European Union (Withdrawal) Act 2018 was stated to be 29 March 2019 at 11 p.m.
The Prime Minister reiterated on numerous occasions that the United Kingdom would be leaving the EU on 29th March 2019.
The power granted to a Minister of the Crown in Section 20(4) European Union (Withdrawal) Act 2018 was extremely limited. It was merely a power to amend a definition in the Act – the definition of ‘exit day’.
Furthermore, the definition could only be amended by a Minister of the Crown to ‘ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom.’ In other words, the power granted a Minister of the Crown no discretion or authority to do anything other than record a change of day and time determined by the day and time the Treaties were to cease to apply to the United Kingdom (something which was beyond the power or authority of a Minister of the Crown to determine).
The definition of exit day since enactment of the European Union (Withdrawal) Act 2018 reflected the legal default position of Article 50.3 ‘failing that, two years after the notification’ – 2 years after the notification on 29th March 2017 was 29th March 2019. The definition was precise ’29 March 2019 at 11 p.m.’
There were only two possibilities for the day and time ‘the Treaties are to cease to apply to the United Kingdom’ to change as stated under Article 50:
A withdrawal agreement being concluded before 30th March 2019; or
The European Council in agreement with the Member State concerned (the United Kingdom) unanimously deciding to extend the two-year period
Before 30th March 2019:-
The Withdrawal Agreement had not been concluded.
Option 1 did not apply.
There was no new Referendum Act;There was no referendum to establish whether the United Kingdom should extend the Article 50 period and delay the United Kingdom’s departure from the EU;
There was no primary legislation to reverse the intention of the United Kingdom to leave the European Union as set out in the European Union (Notification of Withdrawal) Act 2017;
There was no primary legislation to repeal the European Union (Notification of Withdrawal) Act 2017;
There was no removal of the Prime Minister’s notification of the United Kingdom’s intention to leave the European Union;
There was no primary legislation granting the Prime Minister or any other minister power to seek or obtain on behalf of the United Kingdom an extension under Article 50(3) of the Treaty on European Union;
There was no democratic mandate to reverse the result of the 2016 referendum (on the contrary there was a clear democratic mandate in a general election to implement the result of that referendum);
There was no change in the fundamental constitutional position as set out in the Gina Miller case;
‘it is a fundamental principle of the UK constitution that, unless primary legislation permits it, the Royal prerogative does not enable ministers to change statute law or common law.’
‘ministers cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual legislation (and, in some cases, even without any domestic legislation)’
The United Kingdom (as compared with the Government/ Prime Minister) did not agree to an extension of Article 50; and
The United Kingdom did not provide authority for anyone to seek or agree an extension of Article 50
In other words, the Member State concerned (the United Kingdom, as compared with the Government/Prime Minister) had not agreed to extend the two-year Article 50 period.
Option 2 did not apply.
The definition of ‘exit day’ had not changed from 29 March 2019 at 11 pm. Accordingly, a Minister of the Crown did not have the power or authority to change the definition.
The Treaties of the European Union ceased to apply to the United Kingdom on 29th March 2019 i.e. the United Kingdom left the EU on 29th March 2019 without a withdrawal agreement.