The Prime Minister doesn’t have to ask for an extension under the Benn Act. Here’s why and the irony is delicious

We have all heard that the Benn Act will ensure that No Deal is taken off the table and that unless Parliament agrees to a deal that under this Act, the Prime Minister by law must ask for an extension to Article 50. Yet whenever the Prime Minister or members of the Government are asked if the Prime Minister will comply with this requirement and ask for an extension, they reply with a wry smile that the Prime Minister will comply with the law.

So what’s going on?

How can he not ask the EU for an extension if that’s what the law of the land under the Benn Act says must happen?

To be honest it’s quite simple. Article 50 says that we will leave the EU at the end of negotiation period either with a negotiated withdrawal agreement or without.
The Benn act however, seeks to remove the ‘without’ from the table, which then makes it in contravention and at odds with what Article 50 and EU law states. A principle established after the metric martyr case affirms that where there are differences between EU law and UK law, that EU law is superior and UK law must either be amended or set aside.

The speaker of the House John Bercow confirmed the same when recently asked by Labour MP Kate Hoey following the previous extension, where he replied that EU law takes precedence. A point restated once again only last week by Jacob Rees-Mogg when the same question was posed and he replied,

“that as long as the Communities Act is in force, EU law takes precedence.”

Therefore the Benn Act is incompatible with EU law as it contravenes the Lisbon Treaty and as such No Deal is still on the table. Unless of course they can force Treaty Change, which they cant. It becomes irrelevant what Parliament intended by the Benn Act, EU law overules it as it did when exit date was automatically changed and updated within the Withdrawal Act after Mrs May agreed to a 6 month extension under Article 50. The UK Act of Parliament was updated with the revised exit date immediately. That was despite Parliament having enshrined exit date in UK law. Our law was at odds with International law when the extension was agreed and therefore it had to be changed to reflect the new reality.

The Benn Act will suffer the same fate as the section contained within which negates the Prime Minister from having to apply for an extension is Section 2 of the Benn Act, which states that no letter need be sent requesting an extension if,
“this House approves the withdrawal of the United Kingdom from the European Union under Article 50 of the Treaty on European Union on exit day, without a withdrawal agreement as defined in section 20(1) of the European Union (Withdrawal) Act 2018.”

If that condition is met, ie if Parliament agrees to leaving with no deal then the Prime Minister doesnt have to send the letter detailed in Section 4 of the Act.
Now by the sheer fact that we signed up to the Lisbon Treaty, we agreed to Article 50. By enacting Article 50 Parliament accepted the terms of Article 50.
Article 50 states we will leave without a deal if no deal has been agreed.

THAT is an acceptance already by Parliament under EU law that it has accepted that we will be leaving with No Deal if an agreement hasnt been met. It cannot then say that under UK law a letter will need to be sent if a No Deal departure isn’t agreed by the House. As under Article 50 theyve already agreed to such an outcome.

What they are suggesting by the Benn Act, is that they have signed up to an EU Treaty but then parts of that Treaty will only be allowed if Parliament rules that they can be. Thats plainly wrong.

For instance, Freedom of Movement will happen irrelevant if Parliament passes an Act saying it is in favour or against allowing such a thing. The UK Parliament cannot pass a law that contravenes or contradicts EU law on say Freedom of Movement as we’ve already agreed to such a thing by virtue of being signatories to the enabling Treaty.

As such, Parliament has already agreed to No Deal as a consequence of signing the Lisbon Treaty and enacting Article 50. If they want to stop that, then they have to revoke Article 50 or rewrite Article 50 which will need Treaty Change.

The Benn Legislation states no letter need be sent if Parliament has agreed to a No Deal Departure yet its agreement to such an eventuality has already been agreed under EU law and so therefore no letter need be sent.

As Boris has said throughout, we will comply with the law and they will. The irony is indeed sweet and delicious that the law they comply with will be EU law which then exposes quite dramatically how the Sovereignty of Parliament has been undermined by our membership of the EU, despite the denials of the Remainers within.

It is an ending that will see the curtain drawn on our membership of this Political Union which is almost worthy of Shakespeare himself. Such sweet, delicious irony indeed.

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115 thoughts on “The Prime Minister doesn’t have to ask for an extension under the Benn Act. Here’s why and the irony is delicious”

  1. Reblogged this on Richard’s Watch and commented:
    Thank you for your clear and concise analysis David and follows the principles summarised in Brexit Legal Guide’s EU Law & The ECJ published by Lawyers For Britain. Yours It is especially helpful after my deep reservations about the ‘Supreme’ Court’s travesty of justice when judging against the PM and Her Majesty’s proroguing of Parliament.

    Liked by 2 people

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      2. They can but to do that takes Treaty Change, 28 member states to agree and then for confirmatory referendums to be held in umpteen member states to accept it, including amusingly the UK. So yes it can be done but in the time left and all without incident? I really dont think so

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      1. Me too. It’s quite unbelievable that Remain MPs, including Theresa May, have to date, succeeded to obfuscate Brexit just to try to overturn the Referendum result. The irony is so sweet that EU Law will save the day. In fact, I was hoping Boris would go to EU Court of Appeal over the UK Supreme Court decision to say his action of Prorogation was unlawful, when we all know it wasn’t…?.. but Article 50 is so clear and is the approved way to Leave, as supported by the whole of Parliament. Perfect.

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  3. The slight flaw with this is that the Supreme Court reigns supreme – we now have an unelected and unaccountable senate of 11 lawyers which, effectively, decides everything. So, if Johnson tries this line, Remainers will take him to court, it will be expedited up to the Supreme Court, and they will rule against him – irrespective of the logic and integrity of his case.

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      1. so what will happen about the case that is said to be coming back to the Scottish high court?. this is all so confusing???

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      2. Again, EU law trumps all. The Scottish Court will simply confirm that Boris can be removed from office and jailed if he doesnt comply with the law. We all know that. Its what happens when you break the law but in order to have that happen then he has to have actually broken the law. As it stands, he wont.
        It is just another attempt to muddy the waters, darken the confusion so that they can make political capital out of the fact a Scottish Court will issue an arrest warrant if he breaks the law. Its meaningless and pure theatrics for the cameras

        Liked by 2 people

    2. They’re going to cry, aren’t they?
      About 530 MPs, 700 Lords, the FBPE ‘Mob’, Momentum and a hard-core of Remainiacs…
      They are going to cry for days, I mean YEARS.

      Liked by 1 person

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  7. Thanks for the precise explanation David.
    Just one reservation, could the EU or British Parliament come up with an alteration to the EU or UK law before 31st October.

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    1. More chance of hell freezing over. That means Treaty change, for all 28 Member states to agree to it and for the UK to hold a referendum before it is enacted. This is now law and there just isnt time

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  8. If I understand correctly the HOC can only stop this by revoking Article 50 .Will they have the nerve to do that?I fear last week October they will have.My guess is the whole Brexit result will depend on how Tory and labour rebels vote as labour snp and libdems will vote to overturn.

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  10. The negotiation period ends on October 31 unless the EU grants an extension. There is no “without” contained within Article 50.

    “EU law takes precedence” This is correct when it is applied to the granting of an extension & it will apply again if Johnson is forced to ask for an extension. The EU knows that there is likely to be another referendum or a General Election and would not block another extension.

    This is important: Any Member State may decide to withdraw from the Union “in accordance with its own constitutional requirements.”

    The Benn Act is domestic law and as such is a constitutional requirement.

    “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.”

    Do you not think that the United Opposition has not examined this feeble clutch at straws?

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      1. If you are so confident, explain why I am wrong.

        The EU Withdrawal (No.2) Act states that if by October 19 the government has not won parliamentary approval for a deal with the EU or for leaving the EU without a deal, Johnson must request a delay until January 31, 2020. The act gives a text of the letter he must send. If he refuses to sign the letter, then he could be found in contempt of court & A N other will sign the letter.

        Your argument is based on the simple statement that EU law overrides UK domestic law, but it does not. EU law only prevails when it conflicts with domestic law.

        In the event that Johnson attempts to deliberately run down the clock, by whatever means, the final action would be to revoke Article 50 with a parliamentary majority. By far the best solution for the Disunited Kingdom & we all win.

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      3. You’ve just had it clearly explained to you how you’re wrong, and this – “Parliament has already agreed to No deal in the event of no agreement being reached under Article 50. Theres the conflict.” – means nothing at all, as you surely know.
        You might want to remove this post, just to mitigate how silly you feel in the very near future. Of course this is up to you.
        Boris doesn’t have a sneaky, grand plan. He’s useless at politics as he is exceptional at lying.

        Liked by 1 person

      4. Wrong, Parliament has already agreed to No Deal by invoking Article 50. They cannot invoke Article 50, with all of the conditions contained within, to then suggest that they haven’t agreed to them and consented to the contents.
        EU law trumps National law.
        Its not my fault, I didnt establish the principle and your own ignorance is on you, not me https://lawyersforbritain.org/brexit-legal-guide/eu-law-and-the-ecj/eu-law-the-ecj-and-primacy-over-national-laws?fbclid=IwAR3bhCF3Ue1J8HcxitZtufK0DOUnee4-cF_J1QCXOo6_Qm66i-NeYwi0f4s

        Liked by 2 people

  11. thats very sweet,hope boris will use it,what i think though is they will try to get rid of him and put hammond in,what would happen then.

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  12. thankyou for sharing this we will celebrate after all 17.4 million happy drinkers and the rest drowning there sorrows awaiting court action or be kicked out of office

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    1. Doesn’t this look so sweet??? I just love the thought that the EU and all who support staying in it have been caught by the EU Laws!!

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  14. Parliament has already agreed to No Deal by invoking Article 50: Indeed they have and thanks to Gina Miller it was an act of Parliament. Theresa May initiated the withdrawal by law 29th March 2017, if she had not given notice we could be still hanging…. But she did. So we are not!

    The Irony is a check mate, if the Scottish Parliament seek a warrant for the arrest of Boris Johnson then by default they should also seek the arrest of Theresa May, why? Because in law, her first extension was illegal too. We actually left on the 29th March 2019. There would be unintended consequences from the Scottish case IMO.

    The 147 word Law, The European Union (Withdrawal Notice) 2017 is very powerfully worded. It is short, smart and simple. How English law should be.

    Liked by 3 people

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  15. *yawn* The Benn Act requires Johnson to request an extension, something his Scottish lawyers have today agreed he will do. The EU can refuse his request. Clearly, you mistakenly thought the Benn Act attempts to bind the EU, a rooky error on your part.

    (Maybe you should delete this post rather than continue to embarrass yourself?)

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    1. The conditions of sending the letter are if no withdrawal agreement has been agreed or if Parliament doesnt agree to leaving without a deal. It already has agreed to leaving without a deal by invoking Article 50. All Boris has said in Court is that he will comply with the Benn Act and all that it contains, and he will. Yet these mugs in the media are pushing this to mean that he will write the letter to seek an extension. Which he won’t do as he doesnt have to by virtue that they have already agreed to leaving without an agreement under EU law.

      Liked by 2 people

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  17. Although I totally agree with your logical arguments, unfortunately the outcome frequently depends on biased judges that interpret the laws and make binding judgments.
    Interpretation my dear Watson 🙂

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  18. “Therefore the Benn Act is incompatible with EU law as it contravenes the Lisbon Treaty”. Wrong. The Benn act controls the PM’s actions and makes no such attempt to alter or contradict Article 50 of the Lisbon Treaty. The PM is constrained to seek an extension if no deal has passed through by the Commons by 19th October. It simply prevents our Prime Minister allowing a ‘No Deal’ to occur and forces him to request an extension. If for some reason no extension is granted by the EU, parliament can simply revoke Article 50 as declared by the European Court of Justice (ECJ) ruling last year, without having to ask the other 27 EU countries for permission. Brexit would at that point be dead, forced, ironically, into that state by the intransigent fool that lied to the electorate about Brexit in the first place- Boris Johnson.

    Just replying ‘Wrong” to everyone that points out that you are clutching not only at straws but the WRONG straws is truly facile. This whole post is based on your misunderstanding of The Lisbon treaty and the EU Withdrawal Act(#2) (2019).

    Liked by 1 person

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      1. I dearly hope you are wrong David W. You’re clearly as arrogant as Johnson and his odious cabinet. Revoke A50 may yet happen when the feckless HOC gets its head around this. Thank you.

        Like

    2. The conditions of sending the letter are if no withdrawal agreement has been agreed or if Parliament doesnt agree to leaving without a deal. It already has agreed to leaving without a deal by invoking Article 50. All Boris has said in Court is that he will comply with the Benn Act and all that it contains, and he will. Yet these mugs in the media are pushing this to mean that he will write the letter to seek an extension. Which he won’t do as he doesnt have to by virtue that they have already agreed to leaving without an agreement under EU law.

      Liked by 3 people

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      1. I am not expecting you to publish this as you have not done so to my previous rebuttal, but you can treat this as a private message anyway.
        You are wrong because the condition applying to the letter is NOT Parliament agreeing to leave without a deal. The condition is a particular MOTION, something with no legal force in itself (and hence the issue of EU law override does apply) but being used as a device to control the government’s actions in respect of seeking an extension (which is entirely proper under EU law).
        I see that your instincts are basically correct on Brexit but I am afraid that on this particular point you are wrong, which is a disservice to both you and Brexit.

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      2. Suggest you read through my comments. One is from Graham Moore, Daddy Dragon and Constitutional expert. He agrees with me. Now I didnt take the time to reply previously as I have better things to do than take time to educate you. Yet you send more messages like some weirdo. Now please, read what an expert says as you are wrong. If you dont want to accept you are wrong then feel free to go elsewhere and continue living in ignorance and self imposed stupidity. Frankly im not bothered either way

        Liked by 2 people

  21. Dear David W, I have recently delivered a reply to Lady HALE and the other ten justices at the Supreme Court to rebuke their ill-advised decision,whereas I suggested to them that they had been used by those who had taken these cases against the prorogation of parliament into Her Majesty`s Courts. I have told them that these cases are a smoke screen to cover actualy what is being carried out under their very noses; an act of High treason against Her Majesty The Queen is the actual case to which they have actively procided over and that the end game for these people is to change our Constitution from A Democratic Constitution with The Monarch at its head into A Democratic Republic with A President at its head? Chris ULSTER’S INDEPENDENT VOICE.

    Liked by 3 people

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  24. David, Thank you very much for your kind response and comment. I feel like I should bring to your attention, that I did a little more than what was within my previous comment. As you are aware, there were several cases of the same nature and were taking place before The Supreme Court within Scotland, Wales and, indeed, Belfast, Northern Ireland…….My neck of the woods! I made an intervention into The Supreme Court, Belfast and was allowed by Justice Sir Bernard McCloskey under The Treason Act and stated what I had found out and He accepted my statement and took my written submission. Three days later, he threw the case out of court, citing that it was, as I had stated to him, purely, a political matter to which, He could not enter into and thank me for bringing this to his attention.
    Chris Carter, U.I.V.

    Liked by 3 people

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    1. Wow, you sir are a hero. Thank you for your intervention and such a shame that you dont receive the credit that you so justly deserve. From me to you, well done sir, well done

      Liked by 2 people

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    1. The court document read: “In the event that neither of the conditions set out … is satisfied he will send a letter in the form set out in the schedule by no later than 19 October 2019.”
      Yet Parliament has already agreed to no deal by virtue of enacting Article 50
      Hes not taken that into account so hes in for a shock

      Liked by 3 people

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  27. Not really my area of expertise but I would say this argument is not correct.

    The Lisbon Treaty says at article 50(s3)
    “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.”

    So I don’t think it would be correct to say the Benn Act is in breach of art 50(3) as it specifically asks for an extension to be applied for by the UK Government.

    Your article seems to think that “we will leave the EU at the end of negotiation period either with a negotiated withdrawal agreement or without.”. The articles author ignores subsection 3

    Liked by 1 person

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    1. The article is correct.
      One of the caveats of the Benn Bill is that unless Parliament has agreed to No Deal as an outcome that no letter need be sent.
      By invoking Article 50, one of the outcomes of doing so is leaving without a deal.
      Therefore they have agreed that No Deal is acceptable as an outcome

      Liked by 3 people

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      1. With respect you are mistaken. By invoking article 50 the UK has not declared, recognised or approved of a No Deal exit.
        The Benn Act reads:
        1. If MPs haven’t approved a deal in a meaningful vote, or approved leaving the EU without a deal by 19 October, then the prime minister must send a letter (specifically worded in the Act) to the president of the European Council which seeks an extension to Article 50 until 31 January 2020. If the EU agrees to the date, then the prime minister should also agree.
        The key word is ‘approved’. Parliament has not approved a No Deal exit.
        Moreover art 50 does not suggest No Deal is an outcome, its very purpose it to ensure that there is a deal and an orderly exit. It very clearly says that the Lisbon Treaty only terminates when there is a withdrawal agreement or after a two year period has passed. But it also allows extensions. Clearly we did not leave after 2 years and we have not agreed a Withdrawal Agreement.
        I do not quite understand your logic as the Benn deal specifically requires parliamentary approval of No Deal not merely MPs noting that a No Deal exit is possible.
        Forgive me for being a pedantic sod but your argument is not terribly robust

        Liked by 2 people

  28. It is interesting that the EU have not announced that they will open the WA yet?. Is it because if they do they will have violated the terms of the last extension. The last Article 50 extension was permitted on the proviso that the WA could not be reopened.

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  30. Very interesting. Certainly the PM appears to believe there are loopholes in the Law – lets face it – he has firmly stated and maintained that we will leave on the 31st in full knowledge of the Benn Surrender Act and risks a massive backlash from the electorate if he doesn’t deliver. I can only conclude that he has spotted flaws in the Act. As he says – the Govt will comply with the law which does imply the Benn Act does not take precedence.

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      1. I really hope this is correct but what happens if the Benn Surrender Act is ammended to allow someone other than the PM to request an Extension ?

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  31. The key word in the Benn Act is ‘approved’. Parliament has not approved a No Deal exit.
    The author suggests that by invoking Article 50, one of the outcomes of doing so is leaving without a deal.
    Therefore he argues that they have agreed that No Deal is acceptable as an outcome.

    The Benn Act requires a meaningful parliamentary vote.

    Liked by 1 person

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  33. Thank you for your replies.
    You seem to have missed the thrust of my argument:

    1. The Lisbon Treaty allows extensions to art 50.
    2. The Benn Act requires the PM to request an extension.
    3. The two acts are not in conflict.

    You suggest in the article that the treaty has precedence over the Benn Act so the PM need not write that letter. But the treaty specifically allows for extensions. The Benn Act requests an extension.

    You say that “The Benn Legislation states no letter need be sent if Parliament has agreed to a No Deal Departure yet its agreement to such an eventuality has already been agreed under EU law and so therefore no letter need be sent.”

    But that is not correct. The UK has not agreed to No Deal by invoking art 50. We can leave with no deal if we wish. But we have so far requested extensions instead. The Benn Act obliges the PM to request a further extension. The PM has told the courts that he will write the letter although in public he says he does not want to do any such thing. But he is legally obliged to write it.

    Parliament has not agreed to a No Deal exit and art 50 is not an agreement to leave without a deal. Art 50 allows for an agreement or extensions. If the PM did not apply for an extension we would crash out of the EU.

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      1. “Theresa May chose to do so. Thats all it takes.”

        Does it not then mean that all it requires is anyone with Authority to request an extension to make such a request ? (and the courts could determine who has authority)..

        The EU then grants the extension (again) and the UK leave date is ammended (again) ad infinitum. The EU could then impose another longer delay which we have to accept.

        I just cannot see how this contravenes Article 50. The only way I can see this happening is with a leave majority in parliament who will accept a no deal.

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      2. No, Article 50 is very specific. Has to be elected leader of member state. Assuming Bercow or anyone else could sign is folly.
        It would be open to challenge in ECJ and by the time the case was heard we would be out

        Liked by 1 person

      3. Article 50 has 4 outcomes.
        3 specified, 1 accepted
        They are
        Leave with a deal, leave without a deal, extend
        Or revoke

        By enacting Article 50, Parliament has accepted all outcomes.

        Including leaving without a deal. That is now enshrined in the 2018 Withdrawl Act, which is an Act Of Parliament
        They have already accepted and enshrined it in law as one of the 3 accepted eventualities that default from enacting Article 50

        Liked by 2 people

  35. reading this has enlightend me so much thank you david winder and chris carter you are super stars me being the only brexiteer in my family …cant wait to spring this on them

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  37. I’m 87years old,and don’t really a lot about the law. understand, But if I am right after reading the above,i am hoping that we will DEFINATELY be out on the 31st of October. Am I right

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  38. I just love this and can’t wait to see the uproar when the MPs who’re attempting to thwart the “Will of the People” realise just what the law actually says ie EU Law overrides National Law!!

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  39. Today, it is looking likely that Johnson and The Irish PM are agreeing “something”. I suspect Johnson (who is more then likely a Rothchild puppet) , is starting to renege on A Clean Brexit, and we are being softened up over The Backstop, when we all know that that is only HALF of the problems with the WA3. Thoughts please???

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    1. The devil is in the detail. Article 50 was a trap. We should never have gone down this route. However offering a pared down FTA immediately on departure, without a WA sounds promising. Which is why Parliament would hate it but heres the kicker. A FTA is covered & can be signed under the Royal Prerogative

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      1. What about the rest of the WA…..The Armed Services are not happy as we are still tied into EU security commitments etc and potential EU army …..as Mr.Farage keeps saying only a Clean Break will do???

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      2. The Pesco arrangements are a seperate issue but need to be addressed. There is a certain naiveity when dealing with the EU on behalf of our Civil Service. They need to be reminded that friends sometimes dont act like friends

        Liked by 1 person

    2. Looks like I was right! My next “prediction” is that we we will “Leave” in name only by kicking the can further down the road to December 2020 during which time there will be a GE when Johnson will win because we “left” on time with BRINO. Plenty time then to stitch the Electorate up then into further creation of The United States of Europe despite Johnson saying he doesn’t want it. ALWAYS remember, whatever our Jewish PM says, its bound to be a lie…He is a Zionist Rothchids puppet marching us all towards the NWO. Europe is the first of 3 Continental Blocs to be created and governed by One Leadere with OneWorld Currency as per the UN Art 21.

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  40. It just gets sweeter and sweeter David. My heart sings with joy whenever I read these comments and your assured responses. Many thanks x

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    2. It appears that the letter has been sent- unsigned! The request was accompanied by a second letter, signed by Mr Johnson, which says he believes that a delay would be a mistake. Boris is not just going to roll over and let them walk over us!

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