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Bruce Newsome is Lecturer in International Relations at the University of California, Berkeley. This piece was originally published on the Conservative Woman.

Failing to get her own way by mendacity, Theresa May is now evading the law and the legislature.

She is executing personal diktats and international agreements outside of consultation or ratification by Parliament, outside of consultation with even her own Cabinet, outside of precedent, without due process, and contrary to statutes. She is acting unconstitutionally and unlawfully.

The law she is now evading is the EU Withdrawal Act of June 2018. It is an act of many parts, but more on those later. One part effectively ratifies the international commitment that May triggered in March 2017 by petitioning to leave the EU under Article 50 of the EU constitution (the Treaty on European Union). Since Article 50 provides for two years between petition and separation, Britain is scheduled to leave the EU on 29 March at midnight Brussels time (2300 hours British time). The EU Withdrawal Act effectively ratifies that timing.

Unfortunately, that timing is not fixed internationally, because Article 50 allows for the petitioner to extend or revoke.

This has enabled the EU and May to be two-faced. Their proposed Withdrawal Agreement is supposed to come into effect upon nominal separation, as a transition to a final deal, although they marketed transition itself as a ‘deal’ and an ‘orderly Brexit’. In fact, it weakens Britain’s rights without reducing its obligations, for at least two years, and gives the EU a veto on when Britain can leave. To pressure the recalcitrant, they pretended that: it must be accepted before the clock runs out, it cannot be renegotiated, and a bad deal is better than no deal.

Yet when a bad deal failed to get ratified, they agreed more time. Late on Thursday 21 March, the European Council agreed May’s request to extend Article 50. Outrageously, May and the mainstream media presented a fait accompli – blithely ignoring the constitutional and legislative hurdles.

First, May should have sought Parliament’s ratification, as a matter of courtesy, if not law. A week prior, Parliament supported May’s motions: not to leave the EU without a ‘deal’; to extend Article 50’s clock by another three months to implement her ‘deal’, and to extend indefinitely, if her ‘deal’ were rejected. These were indicative votes – they did not count as laws or as amendments to any laws.

Moreover, the EU’s and Parliament’s expectations of the schedule do not match. On 14 March, Parliament indicated an extension to 30 June if her Withdrawal Agreement were approved, or indefinitely if not approved (whose advocates indicated privately that their intent was for two years).

On 21 March, the European Council granted an extension until 22 May if her WA were approved, or until 12 April if her WA were rejected. The EU chose the latter date to punish Britain with the costs of lodging participation in European elections.

Thus, we have at least four reasons for May to seek ratification of her agreement of 21 March:

  1. The EU’s schedule does not match what Parliament indicated;
  2. The EU’s schedule no longer matches the EU Withdrawal Act’s;
  3. The EU Withdrawal Act ratifies a Brexit day that she triggered, but which she now wants to change;
  4. At least one form of extension would involve unplanned participation in European elections.

Alas, May has not motioned any ratification. Moreover, she has made no arrangements to consult Parliament, or even to consult her Cabinet. (This is now a habit: she did not consult when she wrote to the EU the previous week to request extension.)

On Friday, the morning after her agreement with the EU Council, Theresa May instructed Britain’s representative in Brussels to write formally with the nation’s agreement to the extension. Meanwhile, she wrote to Members of Parliament that the ‘Council agreed that if the House approves the Withdrawal Agreement next week then the date of our departure will be extended to 22 May’ or ‘12 April if the House doesn’t approve her WA. She made no mention of the EU Withdrawal Act.

She offered MPs four options:

  1. ‘Leave with no deal on 12 April’;
  2. ‘Leave on 22 May’ with her WA approved;
  3. Request by 12 April another extension (of undefined period, but certainly beyond participation in EU elections at the end of May);
  4. Revoke Article 50 (Britain would never leave).

May gives no hint that the law must change to validate any of these options. This is my legal opinion, and I am glad to see that Martin Howe QC agrees.

Of course, plenty of Remainers can be found to say that international agreement trumps national law, and thence that May has no need to consult Parliament on what she has agreed with the EU Council. I disagree, but, hypothetically, even if they were correct, I would still expect May to seek Parliament’s approval, in order to reconcile executive and legislature on the next step in a bitter journey towards the greatest change in Britain’s constitution since at least 1975.

Her clear intent in her letter is to motion her proposed Withdrawal Agreement a third time – presumably today, Monday. I regard this too as unconstitutional. As John Bercow, the Speaker of the House of Commons, ruled on Monday the week before, she should not keep re-presenting unchanged motions. She surely plans to pretend that her proposal has changed because the EU agreed to extend Article 50, but her Withdrawal Agreement has not changed. It should not be re-presented. She needs to motion a new option for the British-EU relationship after Brexit, or let Britain leave on 29 March ‘without a deal’.

This gets me back to ‘Brexit day’. Whether or not she gets her Withdrawal Agreement approved, she clearly assumes that Article 50 has been extended, but an international agreement without amending domestic law would misalign ‘Brexit day’ and ‘exit day’, both of which are legislated for midnight 29 March.

‘Exit day’ is a typically misleading term that Parliament passed in the EU Withdrawal Act. It is the day on which the Act would: repeal the law that took Britain into the EU’s predecessor (the European Communities Act 1972), carry forward some components of that act, retain some laws enacted by the EU since, allow for two years in which to correct those retained laws, and end the jurisdiction of EU courts. Amendments passed in 2019 have used ‘exit day’ to schedule other legal changes, including trade agreements, tariffs, business competition, business enterprise, and energy products. 

If Parliament were to fail to amend ‘exit day’, all those lawful changes would occur at midnight on 29 March. Even if we were to accept, hypothetically, that May’s say-so is sufficient to extend ‘Brexit day’ without amending the Act, ‘exit day’ would be in breach of the extended period of Britain’s membership of the EU.

The EU Withdrawal Act provided for both ‘Brexit day’ and ‘exit day’ on 29 March, just to conform with Article 50, whose timing is an artefact of May’s personal actions as premier (the timing has no other justification – she wasted the first eight months of her premiership procrastinating).

Unless Parliament repeals or amends the Act, both Brexit day and exit day will occur on 29 March. Even if we were to accept the Remainer opinion that Brexit day has been extended by international agreement alone, Brexit day would jump out of alignment from exit day.

Of course, Parliament could choose to repeal or amend the Act – it takes just a Statutory Instrument. However, legislation takes time, and Parliament has only five working days before Brexit. Normally, Statutory Instruments are debated in committees, Commons, and Lords over weeks to years. They could be expedited over days, and May has proved that she can bounce the Commons into voting on Brexit motions without due consideration. Nevertheless, any such ambition can be delayed by maladministration, the unpredictable Speaker, and filibusters.

That is why May is acting as if no Statutory Instrument is necessary: she is hoping that her non-constitutionality won’t be noticed by the public or even Parliamentarians, who are surprisingly ignorant of the British constitution and international relations, as we have seen over nearly three sorry years of procrastination, indecision, misleads, and U-turns.

May might insist that urgency trumps legislation; the Remainer-dominated Parliament might act executively for itself; the EU has normalised the enforcement of only convenient interpretations.

However, the Remainers’ extra-constitutionality serves Brexiteers too. If Remainers don’t need to follow the law for Brexit on 29 March, then Brexiteers can repudiate May’s stupid and unratified agreements with the EU.

The EU could sue Britain in the EU’s own court for a breach of international agreement, but that would just confirm the case for Britain to regain its national sovereignty – and the best way to do that is to confirm the EU Withdrawal Act’s repeal of EU jurisdiction.

76 comments for: Bruce Newsom: May’s strategy for extending Article 50 is unconstitutional

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