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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