There is a flaw in the European Union (Withdrawal) (No.2) Act 2019 (the “Benn Act“) and, if MPs want to avoid us leaving without a deal, they may need to take counter-measures.
The flaw arises in circumstances where the Prime Minister brings a Withdrawal Agreement (“WA”) to Parliament for approval. And it arises from the mismatch between the provisions of the Benn Act and those of the European Union (Withdrawal) Act 2018 (the “2018 Act“).
What follows is a slightly simplified description of the flaw, to aid readability.
To avoid the PM having to request an extension from the EU under section 1 of the Benn Act the Commons must approve the WA. If they do, on or prior to 19 October, the obligation in the Benn Act to request an extension falls away.
However, the provisions of the 2018 Act specify further preconditions, beyond approval by the Commons of the WA, before the WA can be ratified and No Deal avoided.
Those preconditions are set out in section 13(1) of the 2018 Act and include the passing of a further Act implementing the Withdrawal Agreement (the “Further Obligations”).
Summing up, if the Commons approves the WA but these Further Obligations are not satisfied before 31 October 2019, then two consequences follow. First, the Benn Act will not apply to require the PM to request an extension from the EU. And, second, we will leave with No Deal.
So, imagine the PM says privately to the ERG ‘support my WA and I will deliver No Deal.’ In those circumstances, with the help of some Labour MPs, the Commons might approve even Theresa May’s WA.
The PM would thus have escaped the obligation in the Benn Act to request an extension and could deliver No Deal.
He could, for example, again suspend Parliament (subject of course to the outcome of this week’s Supreme Court hearing). There is some evidence (see below) that he plans to do this. And we would leave without a deal.
Indeed, even without again suspending Parliament, he may well be able to deliver No Deal simply by refusing to put before the Commons an Act implementing the Withdrawal Agreement. In such circumstances the Further Obligations would not be satisfied in advance of 31 October 2019 and we would leave with No Deal.
I had been discussing the above privately with trusted MPs and friends. However, because there is circumstantial evidence, set out below, that the PM’s office is aware of this flaw, I am putting it into the public domain in the hope that MPs consider what counter-measures they may wish to take.
The best way to bypass the flaw is for MPs to refuse to approve any motion for a WA on or before 19 October. Those who want the Withdrawal Agreement should refuse on the basis that, by voting for it, they may well be delivering No Deal.
In those circumstances, I believe the Courts, likely in consequence of proceedings afoot in Scotland, will enforce the Benn Act and require the PM to request an extension.
However, nothing is certain. There may be other flaws I have failed to spot. And the EU may refuse an extension. The situation now, as has always been the case, is that the only absolutely certain way to avoid No Deal is for Parliament to legislate to change the default if no agreement is reached from No Deal to revoke.
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The circumstantial evidence is:
A story, reported in today’s Mail on Sunday, that a further suspension of Parliament is planned.
Reports that the Prime Minister is meeting members of the ERG privately.
Widely reported briefings that the Prime Minister plans to put a re-heated version of Theresa May’s Withdrawal Agreement before Parliament.
Waiting for Godot 
Whatever happened to “good faith” and how can anything approaching democracy function in its absence?
There is another scenario whereby the EU accepts an extension but another member vetos it. We are then in very interesting country. We cannot leave without a deal because that is now against the law. We cannot have the May deal because it has been thrice rejected. If an extension is vetoed, we leave on 31st October 2019.
Except we cannot leave without a deal, we do not have an extension and the May deal is totally dead. Now what?
I was rereading the various Acts the other night after watching Bill Cash MP on TV repeating what he had previously said in the House that the Benn Act does not change the official leave date (31st October) & is therefore flawed. I had assumed that the Withdrawal Act 2018, which contains the definitions of ‘exit date’ etc, would have some form of clause that should automatically come into play whenever an extension was given. Instead it relies upon a Minister of the Executive making an order that changes the current ‘exit date’ to the future extension. Now, under any other executive I would have said that this was a moot point because the Minister responsible would always change the date as a fait accompli, but under this executive I can definitely see this being refused, therefore the default exit day remains 31st October. The Benn Act does not put any duty on anyone to amend the date contained in the 2018 Act, whereas the Cooper-Letwin Bill earlier this year did. To me, with this executive was a very serious oversight & could lead to an argument over “spirit of the law vs wording of the law”, something Boris’ lot has already proven to toy with.
I thought when the HoC ratifies the WA it cannot be “no deal”. Note that the WA may set any date as orderly exit date, including 31 Oct. Consider Art 50 “failing that”.
“There is another scenario whereby the EU accepts an extension but another member vetoes it.”
It is rational for the EU members to accept any delay. Postponing ND British economic suicide is always beneficial and offers more time for them to mitigate their risks and damage.
Revoke implies the option to trigger Art 50 again shortly after, and the EU27 cannot prevent both moves. It sets off the doomsday mechanism. Clock reset. After Art 50 is triggered again, the EU28 and the UK can at any time agree to a WA and leave with immediate effect. There is no rule that you have to run down the clock.
I do hope that all Members of \Parliament have been made aware of this. There are members of the public who will only just, by virtue of you making this public, realise how VERY complicated all this negotiating actually is in reality. .
Thare is a section of society CLEARLY thinks you simply walk away and get on with life. ….unfortunately they are unlikely to read this. This is more complicated than any divorce and the implications of untying all these knots is going to go on for years. Thank you for spending time to let us know.
WA is an international treaty. Domestic UK legislation implementing its provisions is irrelevant for the ratification process. Of course it can be delayed, causing a few months of gratuitous legal chaos and disruption, but that would not change the fact that UK would be legally bound by WA once both sides have ratified it. In particular, there would be absolutely no way of ever agreeing any other treaty with any EU country before the provisions of the ratified WA were put into practice. This would be a make-believe no deal covering up a reneged upon deal. If they want to do this they can just as well accept WA as is and then unilaterally cancel it.
1. A basic condition of Article 50 is that a member state can hold a referendum to leave the EU ‘according to its own constitutional requirements’.
Since the government is now attempting to leave the EU by ignoring its constitutional requirements it clearly invalidates its no-deal tactics including the proroguing of parliament. Thus the government cannot leave the EU until it fulfills its constitutional requirements.
2. The British Constitution is very clear, sovereignty is the embodied by the monarch acting through parliament. Therefore the government has no legal authority unless it is supported by parliament. Which means that if the government attempts to bypass the Benn Act parliament can simply amend the Benn Act to prevent it doing so.
3. But you are right, if enough Labour MPs support Kinnock’s proposal that Labour should support a modified version of May’s Withdrawal Agreement then that might be sufficient to get it across the line.
4. But that would almost certainly mean that the government would lose the support of the DUP and all of those Tories who rejected the Withdrawal Agreement three times.
5. Anyway, the EU has said there is no time or possibility of modifying the Withdrawal Agreement.
6. And, finally, Bercow could simply refuse to table an unchanged Withdrawal Agreement for the fourth time.
7. So I’m afraid the Incredible Hulk is not going to win this little legal battle despite the anger of his army of fascist thugs and their obvious attempts to intimidate the judiciary, his lying to the monarch and his attempts to override the British Constitution.
Why isn’t supporting Jeremy Corbyn’s policy and alternative?.
In your circumstantial evidence you omitted to say that Derrick’s end-
of-the-garden gnome has it on very good authority that Diane Abbott secretly met Nigel Farage and have drawn up a contingency plan to elope on 31 Oct if we fail to exit.
Seems to me that there are more flaws, or at least points that are ambiguous in The WA#2 Act than just that.
Section 1(3) permits that PM to wait till 23.59 on the 19th to submit the letter, which is after the Council meeting has ended (on the 18th). Will the Council want to meet again to agree to it, if so when?
Section 3(3) says that if the Council offers a date different to 31 Jan then the PM can only accept if a motion “moved by a Minister” is passed – within 2 calendar days: the Council meeting ends on a Friday, so that might be tricky and in any event there is no apparent obligation for a Minister to actually move such a motion.
It’s also not clear to me what Section 3(4) means other than the PM can agree to something “other than the above”.
So remainer MP’s don’t want to leave without a deal but if Boris performs a miracle and returns with a stripped down WA minus the backstop the advice is to vote against it because we may leave without a deal. You’ve all gone completely mad. You need to be honest with the voting public that the end game is to revoke Art50 and have the courage to put it to a General Election.
Doesn’t the obligation to SEND the prescribed letter by the end of 19th October provide an opportunity to then delver it by stagecoach via all EU member states, in the name of democracy, and for it to arrive in Brussels on 1st November? Surely receipt is the critical issue.
This is what can happen when you let the lunatics take over the asylum.
gothboyuk don’t forget that the 2018 act is domestic legislation rather than international, to an extent it doesn’t matter what exit date is defined as in domestic legislation as that is entirely under our control. What matters is the exit date in international law, which we share control over with the EU. Should international law extend the exit date, then either parliament has to change domestic law to follow suit, or we become in breach of international law, but we are still a member.
I’ve tested some arguments in the VCLT and only came to a similar conclusion from an international law POV since the consent to be bound is completely based on ratification alone. While being dodgy politics, it sounds legal. However, for sure by means of SO24 the required act can be brought before the house making the HoC the laughing stock of the world as well as identify the ERG wreckers, if it adopts and rejects the very same agreement in the matter of a couple of days.
In trying to be too savvy and back the Government into a corner, you have overplayed your hand and given the Leave side more options. What you suggest is the flaw isn’t the one they will ultimately rely on. Watch and learn, Jo.
“The situation now, as has always been the case, is that the only absolutely certain way to avoid No Deal is for Parliament to legislate to change the default if no agreement is reached from No Deal to revoke.”
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Would this not be completely unconstitutional, and so then impossible, it being against the sitting government made of the largest party and Prime Minister, and while government and the majority of MPs in Parliament were elected on mandates of fulfilling EU exit?
I believe it may be one thing for an opposition group of MPs to insist on a Brexit extension and, at least for the moment, have legistlated against No Deal. But where the Supreme Court in the Miller case has insisted that leaving the EU requires a parliamentary vote constitutionally, and this vote has happened, may it not be that the other constitutional issue in such an important, momentous act as deciding to leave or stay in The EU is that that act needs to include government assent? Isn’t there a constitutional issue which means that, perhaps at least in these hugest of matters, there is more to count than merely a simple parliamentary majority?
There is, for example, the Constitutional principle of the legislative sovereignty of government itself (not Parliament). Personally, I do believe that if the matter of whether a simple Parliamentary majority excluding the government were to have been examined in the original Miller case, the result would be that both Parliamentary and government sovereignty would be required to be in place for the decision of whether to leave or stay in The EU. If so, the same obviously would be required for any subsequent parliamentary decision on the basic question of EU Membership.
Whether you may say that there are constituent elements of this, or that these are extra elements to a basic and very serious constitutional principle stated, the whole situation needs to be considered.
It can be argued it is the Government’s constitutional right (and its very definition – extremely relevant for the legitimacy of a Parlimentary sitting) to have full control over what bills merely it introduces to Parliament. This argument then accepts that what is actually chosen and enacted is separate to that privelege, and in normal cirucmstances would include legislation not initiated by government itself. But how far can that argument go when the most momentous and consitutionally important legislation, which one supposes really requires a Queen’s Speech, coming from a political mandate for this most serious of matters, is given by those who have not been able to form government under a Queen’s Speech, and against the legislatively sovereign government which has been formed under a Queen’s Speech?
Constitutionally, isn’t the simple political mandate element alone very relevant?
Here we would have a small majority of MPs voting against the majority of individual constituency democratic mandates in the House and at the same time against the major party mandates and at the same time against the democratic mandate of the only party which has been able to form government, as ordained by The Queen. To me, it looks completely unacceptable, constitutionally. The democratic mandate, I believe, has been cited as an constitutional element where the constitution is fundamentally opposed to the idea of any dictatorship including an elective dictatorship – whether the latter would transpire either from government itself or any rebel grouping. It seems clear to me that an elective dictatorship of rebels would be exactly what we would be seeing if they were allowed to go as far as to revoke the EU Exit legislation in domestic and EU Laws.
As of the 2017 snap General Election, relatively very few MPs indeed in the Commons have any political mandate whatsoever to stop Brexit after Article 50 was exercised. (Further Article 50 was exercised without any knowledge or belief in UK citizens or polticians that there was a genuine ability to revoke it. In itself that can be important as it can mean a relevant change in EU Law only after Article 50 Lisbon was complied with in good faith, where there were no grounds to believe it can be revoked, at least in British law.)
This all adds up, even with the government legislative sovereignty issue not at the fore, to a situation which would seem to be a heinous breach of trust from Parliament. Surely it would be deeply unconstitutional, I would think, for Parliament to revoke Article 50 against every basis on which the vast majority of MPs were elected and, again, against the Queen’s Speech enabling Parliament to be in this sitting. Without that Speech, there would not be this sitting. Surely, the consitutional level is clear here also – that cannot be what the Queen’s Speech is for or for to facilitate?
Therefore it is a most basic assertion that a sitting Parliament cannot be used diametrically opposed to both the base its current existence was established upon by the Monarch and the vast majority of democratic mandates.
This whole situation, which you appear to suppose can give such an easy ‘solution’, surely has to be mired within very serious constitutional matters which cannot be ignored. To my mind, while there may or may not be precedent, I’m not sure, any attempt to fulfil that nation should absolutely necessitate the Monarch’s interference and the dissolution of Parliament for an election.
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You’re missing the real flaw in the Benn Act.
It comes by virtue of Article 51 of the Vienna Convention.
Since parliament is, through the Benn Act, using force against Boris Johnson, the resulting letter “has no effect”, and the EU council can not accept it.
The only way around this is to replace Boris Johnson as the UK’s “representative” with someone who will act freely and wilfully in sending the letter.
Snort.
What if the PM simply refuses to act legally but dresses this in some, ultimately erroneous, legal argument. Evidently this will only be noted on 20/10/2019. In order to clarify whether the PM’s interpretation is lawful a court must be involved. How likely is it that the government’s legal representatives could drag out this case such that a judgement on the Government’s actions does not come in before 31/10/2019 by which time according to EU law the UK will be considered a 3rd country.
I wonder for example whether Parliament can actually prescribe a PM, to the letter & syllable, what to write in his letters to the EU. That would seem only sensible in case Parliament has no trust in the PM to do so himself (which evidently is the case) however Parliament itself refuses to express this no-confidence in terms of a vote. As a result, given the fact that legally Parliament still has confidence in the PM, the instruction concerning the letter cannot reasonably be taken to mean a literal and exact instruction that allows no variation. If Parliament insists however that this is the content of the Benn Act, then the government could argue that this would imply Parliament has effectively withdrawn confidence from the government when it voted for the Act on September 9th and that thus a attempt at finding a new PM that holds confidence would have had to be concluded by September the 23rd which has not happened and hence the conditions would be given that allow the PM to call an election after 31/10/2019.
I know to little about UK law to know whether any of these lines of reasoning hold. But I am wondering whether a talented lawyer would wrap them in such a way in actual legal knowledge that a courtcase to unravel it would become lengthy and hence not finish before 31/10 given the constitutional implications.
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