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    The Way around the Benn Act

    Posted by Ivo Cerckel on October 10th, 2019

    Philip Hammond errs when he says that there is no way around the Benn Act.

    The Supreme Court said that the Act is null and void.

    “Quod nullum est nullum producit effectum” (That which is null and void cannot produce any effect.)

    ==

    The Benn Act, European Union (Withdrawal) (No. 2) Act 2019, which received royal assent on 09 September 2019, is the anti-no-deal legislation that compels the prime minister to seek a three-month extension to Article 50 if he cannot get a Brexit deal agreed by the end of the European Council on 17- 18 October 2019

    European Union (Withdrawal) (No. 2) Act 2019
    2019 CHAPTER 26
    An Act to make further provision in connection with the period for negotiations for withdrawing from the European Union.
    [9th September 2019]
    http://www.legislation.gov.uk/ukpga/2019/26

    Former chancellor of the exchequer Philip Hammond said today that here is “no way round” the legal requirement under the so-called Benn Act for the prime minister to seek an extension to Brexit negotiations if he fails to secure a deal by the end of next week, Mr Hammond insisted
    https://www.independent.co.uk/news/uk/politics/boris-johnson-brexit-latest-news-delay-eu-philip-hammond-a9150151.html

    Article 50 of the Treaty on European Union says
    1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
    2. A Member State which decides to withdraw shall notify the European Council of its intention. In the 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.
    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.
    4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
    A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
    5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

    Section 3 of this Article 50 thus says
    “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.”

    This section 3 means that
    Article 50 TEU provides a procedure for dealing with a request by a Member State to withdraw from the Union, by means of an agreement between the Union and that State. Should no such agreement be reached, the Member State will cease to be party to the Treaties after notifying the European Council of its intention to withdraw, unless there unanimous two years agreement to extend this time period.
    (Catherine Barnard and Steve Peers, (eds.) “European Union Law”, Oxford UP, 2017. Second Edition, p. 139).

    Rupert Lowe. MEP for the Brexit party, argued on 26 September 2019 on Twitter that
    the 24 September 2019 judgment of the UK Supreme Court which ruled that
    “Boris Johnson’s decision to suspend Parliament for five weeks was unlawful, the Supreme Court has ruled because it was wrong to stop MPs carrying out duties in the run-up to the Brexit deadline on 31 October”
    contains a section from which potentially a serious case demonstrating that the UK of NI-and-GB have already left the EU on April 12th
    https://twitter.com/rupertlowe10/status/1177247077962846208

    In his letter of 24 September 2019 to Antonio Tajani, chairman of the EU parliament’s Brexit Steering Group,  letter which he copied in his quoted tweet. Lowe wrote
    .
    SNIP
    […] a possible unintended consequence of the Supreme Court ruling earlier this week on the power to prorogue Parliament [may be this;] [t]The judgment has already had retrospective effect on at least one Statute and may have further retrospective consequences – particularly for the EU budget.

    As you may know, the Royal Prerogative includes not just the power to prorogue but also the power to negotiate and enter into treaties and to male the decisions in the EU Council – there is no reason to distinguish between these Executive functions because the Supreme has ruled that it is the effect of exercising the power that is relevant specifically

    : ‘a decision to prorogue (or advise the monarch to prorogue) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive’.”

    You will recall that on 11th April, Theresa May used the Royal Prerogative to agree an extension to the Article 50 process. By doing so she prevented Parliament for a further six months from, not only negotiating on a whole range of matters covered by the EU treaties, but also from holding to account the real executive (the EU Commission)

    END OF QUOTES

    Lowe thus argued that Theresa May’s extension of Art. 50(3) period prevented the parliament of the UK of Ni-and-GB from legislating on areas which, before Brexit, were covered by EU law.

    In this case concerning Art 50 TEU, Lowe was quoting a paragraph from the Supreme Court judgment which is numbered paragraph … 50

    The whole paragraph says

    50. For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.
    http://prod-upp-image-read.ft.com/ef9e5762-deb1-11e9-b112-9624ec9edc59

    Lowe’s reasoning concerning the (first) extension by Theresa May is “mutatis mutandis” (by changing what has to changed) applicable to the Benn Act which prevent the parliament of the UK of NI-and-GB to legislate on natters previously covered by EU law..

    Therefore, the Benn Act is null and void – like Theresa May’s extension of art. 50 (3) TEU.

    “Quod nullum est nullum producit effectum” (That which is null and void cannot produce any effect.)

    Ivo Cerckel
    philmigrator@yahoo.com

     

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