Withdrawal of the United Kingdom from the European Union on 29th March 2019: Extensions: prerogative power or statutory power? If an extension under Article 50(3) TEU was a prerogative power, then:
- Extension results in a considerable change in UK domestic law (as EU treaties and EU law continue to apply to and in the UK for the period of the extension, which they would not do if there were no extension), but ‘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’ (Gina Miller case). The statutory position in March 2019 was that the UK would leave the EU either with a withdrawal agreement before 29th March 2019 or without a withdrawal agreement on 29thMarch 2019 – European Union Referendum Act 2015, referendum held on 23rd June 2016, the European Union (Notification of Withdrawal) Act 2017, the notification letter of 29th March 2017 and the provisions of Article 50 TEU. Royal prerogative did not enable a minister to change that. Therefore, as no withdrawal agreement had been concluded by 29th March 2019, the UK left the EU on 29th March 2019 with no withdrawal agreement.
- Apart from being void as after the UK’s departure from the EU on 29th March 2019, both the Cooper Letwin and Benn extensions defective if lacking Queen’s consent.
If extension under Article 50(3) was a matter of statute, then:
- The statutory position in March 2019 was that the UK would leave the EU either with a withdrawal agreement before 29th March 2019 or without a withdrawal agreement on 29th March 2019 – European Union Referendum Act 2015, referendum held on 23rd June 2016, the European Union (Notification of Withdrawal) Act 2017, the notification letter of 29th March 2017 and the provisions of Article 50 TEU. Withdrawal agreement not concluded by 29th March 2019 and so UK left EU on 29th March 2019 without a withdrawal agreement.
- Statutory power under 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’. (the definition of exit day had reflected the legal default position of 29th March 2019 at 11pm). 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.’ There were only two possibilities for the day and time ‘the Treaties are to cease to apply to the United Kingdom’ to change under Article 50 TEU – withdrawal agreement being concluded by 29th 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 neither occurred, no withdrawal agreement concluded and the United Kingdom (as compared with the Prime Minister/UK Government) had not agreed to extend the two-year period. The EU treaties ceased to apply to the United Kingdom on 29th March 2019.
Remember Prime Minister Theresa May stated on over 100 occasions that the UK would leave the EU on 29th March 2019. She was correct in her statement. During the Brexit saga, some of the principal actors may have believed they were doing the right thing based upon their level of knowledge and understanding at the relevant time, some may have felt they were under particular pressure to take the action which they did. Whatever the situation, such actors are not the United Kingdom. The United Kingdom in a lawfully held referendum (in which 72.21% of 46,500,001 registered voters participated) voted to leave the European Union. ‘It was a vote to take control of our borders, laws and money’ (Mansion House speech, 2nd March 2018). P.S. This note is provided in a spirit of goodwill. If you agree with it, please feel free to copy and paste it (together with this postscript) and send it to family, friends and contacts. Thank you and have a good day.