For months now, Theresa May and now Boris Johnson have been ratcheting up the rhetoric that a No-Deal Brexit is the only game in town if a Withdrawal Agreement is not approved by Parliament.
Rose Slowe has already set out why this may not be the case. Some experts, both academic and practising, have disputed Rose’s take on this.
However, the “Benn Act” has changed some of the fundamentals behind Rose’s argument, as did the Supreme Court’s ruling against the legality of the PM having used prorogation, supposedly prior to a Queen’s Speech, in an attempt to neuter Parliament and avoid Parliamentary scrutiny.
As a result of the “Benn Act”, there is now a clear constitutional requirement for Parliament to approve the terms on which the UK leaves the EU. That requirement exists completely independent of the Deal/No-Deal question.
The question of whether the UK’s constitutional requirements have been met is one for the UK’s Supreme Court, not for the EU.
Jean-Claude Piris, a former head of the EU Council Legal Service, says that suggestions that the UK government could rely on EU law to trump the” Benn Act” have no legal basis. According to the Guardian, he said in an email:
“EU Law is far from always having direct effect. In the case of article 50 the decision of a member state to leave the EU must be taken in conformity with the constitutional requirements of that state. Thus no direct effect. The authorities to judge if British constitutional requirements are being respected are the British competent ones.”
If the PM tries to circumvent the “Benn Act” to drag the UK out of the EU with No-Deal, it is highly likely the Supreme Court will rule it to be unconstitutional. Not only unconstitutional, but also that the PM has not respected the rule of law.
If that is the case, then clearly the next question is, “Has the UK left the EU in accordance with the UK’s constitutional requirements?”
That will be a question for the EUCJ. Given that it is almost certain that the Supreme Court will rule that a Boris Johnson enforced No-Deal Brexit is unconstitutional the ruling of the CJEU is evident: no, the UK has not left the EU in accordance with the UK’s constitutional requirements.
All that being the case, where does that leave us, we UK citizens, regardless of where we live?
If the process is ruled as being unconstitutional by the UK’s Supreme Court and the EUCJ, and thus illegal/unlawful, can the EU remove UK Citizens’ EU citizenship rights? Can the UK remove EU27 Citizens’ UK rights? Robert Basedow of the LSE makes the argument in his blog post – How the European Union’s Court of Justice may end up having the last word over a hard Brexit
Piet Eeckhout – Professor of EU Law and Dean of the Law Faculty at University College London takes this argument even further in his article Why the European Council Must not Reject an Article 50 Extension Request and says that the EU cannot refuse an extension. Indeed, the EU must listen to the sovereign voice of the UK’s Parliament, as expressed in the “Benn Act”, regardless of whatever mechanisms or machinations the Prime Minister may employ to foist a No-Deal Brexit on the UK.
Professor Eeckhout rightly points out that the ruling handed down by the EUCJ in the Andy Wightman & Othrs reference is a crucial, and often overlooked, factor when judging whether the UK will have left the EU in accordance with its constitutional requirements. We have long believed this to be the case, following the Three Knight’s Opinion we commissioned, which formed the basis for the Andy Wightman reference and the resultant ruling by the EUCJ.
Furthermore, if the EU were to refuse a request (explicit or implicit) for an extension of the Art 50 process and thus seek to enforce the removal of our EU citizenship rights, the EU would be subject to direct challenge by UK citizens.
Any attempt by the EU to remove those EU citizenship rights from UK citizens would also throw into stark relief the failure of the EU to defend and preserve the rights of all EU citizens, regardless of which of the EU28 member states they come from or reside in – rights the EU promised to defend when it set out its negotiating objectives.
As we have said before, political expediency is a convenient taskmaster, one that many politicians follow. We must be prepared to follow the harsher and more demanding taskmaster of principled action rather than accepting politically expedient solutions.
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Published by Grahame Pigney on behalf of The People’s Challenge Ltd.