Monday, 21 October 2019

Brexit grinds on

For several weeks past, I have had my head down getting the Third Edition of A Practical Guide to Permitted Changes of Use ready to go to press. I am pleased to say that the book should be going to the printers this week, and so I can now turn back to other matters.

As I have mentioned before, there doesn’t seem to be much going on on the planning front at the moment, and so I don’t feel I need any excuse to return to the subject of Brexit after an interval of several weeks. I have refrained from further comment until now, as I wanted to see how things would pan out in light of the negotiations with the EU that were concluded last week, ahead of the purely arbitrary deadline of Hallowe’en that was bequeathed to the Johnson regime by Theresa May.

There seems to be widespread misunderstanding and confusion, even among some journalists (who really should know better), as to what has been happening, and what is likely to happen next. So I think it would be worth spending a few moments to explain exactly where we are at the moment.

The majority view of parliament for some time now has been that the UK should not leave the EU without an agreement. It was in order to prevent this eventuality that the European Union (Withdrawal) (No. 2) Act 2019, popularly known as ‘the Benn Act,’ was passed on 9 September. This required the Prime Minister, no later than 19 October, to seek to obtain from the European Council an extension of the period under Article 50(3) of the Treaty on European Union by sending to the President of the European Council a letter in the form set out in the Schedule to the Act requesting an extension of that period to 11.00pm on 31 January 2020 in order to debate and pass a Bill to implement the agreement between the UK and the EU under Article 50, unless by that time both the Commons and the Lords had passed a resolution approving a draft agreement reached before that date or, alternatively, a resolution that the UK should leave the EU without any agreement being concluded.

Last Thursday, amid much back-slapping and bonhomie, the PM concluded a draft withdrawal agreement with the EU, as confirmed at the EU summit on that day, and he then tabled alternative motions in the Commons and the Lords for debate on Saturday in order to comply with the Benn Act - one to approve the draft agreement, and the other (as an alternative) approving leaving the EU without an agreement. The debate on these two motions had to be held on Saturday because the government was right up against the deadline imposed by the Act. A cross-party amendment, proposed by Sir Oliver Letwin and others, changed the first of these motions, to state that the House had considered the matter but would withhold their approval unless and until implementing legislation is passed. This amendment was passed (by 322 votes to 306). The main question, as amended, was then put and was agreed to without dissent. In light of this, the government did not move the second motion (which would have approved leaving the EU without an agreement.) Note that the main motion (to approve the draft agreement) was not withdrawn; it was passed, in its amended form. It was only the alternative motion (for a ‘No Deal Brexit’) that was ‘pulled’.

Following these votes, the government indicated its intention to table the original motion again (or a motion substantially to the same effect) on Monday. This was done in a somewhat unusual manner, in the form a Point of Order raised by the Leader of the House (Jacob Rees-Mogg). He did not seek to make an Emergency Business Statement on Saturday afternoon, as might have been expected. This led to a number of further Points of Order being raised by Members, including the suggestion that an attempt by the government to re-run the debate on their original motion would be in breach of the rules of the House. The Speaker indicated that he would take advice from the Clerks (and presumably, if thought necessary, legal advice) before ruling on this and the other Points of Order at the start of public business on Monday. However, the Speaker reminded the House that the proposed motion on Monday could only be debated if would be orderly to do so. The Government is not the arbiter of what is orderly; it is solely for the Speaker to rule on that.

Meanwhile, on Saturday evening, the PM complied with the letter (although perhaps not with the spirit) of the Benn Act, by sending to the President of the European Commission a photocopy of the letter set out in the Schedule to the Act. That letter was not personally signed, but it nevertheless concluded – “Yours sincerely, …………Prime Minister of the United Kingdom of Great Britain and Northern Ireland”, and it is clear that this is being treated by the Commission as a formal request from the PM for a delay under Article 50. What may perhaps be legally questionable is the covering letter from the UK’s ambassador to the EU, stating that this letter was being sent only because it was a legal requirement of the Benn Act, and a longer personally signed letter from the PM effectively seeking to negative the effect of the letter that he had been legally required to write.

Today, immediately following Defence Questions, the Speaker made his ruling on the Points of Order that had been raised by MPs on Saturday afternoon. The issue was whether the fresh motion under section 13(1)(b) of the 2018 Act was the same in substance as the motion that had been before the House on its previous working day, barely 48 hours earlier. It clearly was substantially the same, and Erskine May is very clear that this is unacceptable, and has been for more than 400 years. The Speaker had considered whether there had been any change of circumstances, but there had been none in the period of barely 48 hours since the House had previously voted on the matter. The Prime Minister’s letter of Saturday evening did not represent a change of circumstances, but was simply part of a process. The Speaker therefore ruled that the motion on Monday’s Order Paper was repetitive and disorderly.

Later this afternoon (and arguably more than 48 hours late), the Leader of the House finally made an Emergency Business Statement. This indicated that the government intends to rush what will undoubtedly be a very complex Bill through all its Commons stages in just three days (starting with Second Reading on Tuesday, and concluding on Thursday), following a formal First Reading today. A Programme Motion was due to be laid later today and will be debated tomorrow. It is completely unacceptable that the government should attempt to ram such an important Bill through the Commons in such an unreasonably short time. This will be the next issue over which battle is joined between parliament and the Executive. As the for the Queen’s Speech, the debate on that will certainly not be resumed this week, which as an opposition MP observed, points up the fact that the Queen’s Speech was a meaningless sham, and a pointless political gesture on the part of the government.

Unfortunately, this is a subject to which I shall be bound to return. But to those who say that they just want to get it over with, I would point out that the quickest and easiest way of achieving that would be simply to abandon Brexit and to retain full membership of the EU. This would bring an immediate end to all the debate and argument, and we can then at last get back to discussing other important matters. The mantra that we should “just get it done” and make a “clean break”, on the other hand, would have precisely the opposite effect. It would be the start of years of even more difficult negotiations, not only with the EU but with numerous other countries about terms of trade and many other matters, and endless debate and disputes about this for years to come. No deal, however carefully negotiated, will ever give us such advantageous terms as we currently enjoy as a member of the EU.

UPDATE: Tuesday evening (22 October): As I expected, the European Union (Withdrawal Agreement) Bill [the “WAB”] received its Second Reading earlier this evening. However, it is important to understand that (notwithstanding claims to the contrary from the government benches), this did NOT amount to approval of the deal for the purposes of the Benn Act. That Act requires such approval to be in the form of a resolution in a specific form of words. The motion to read the WAB for a second time did not fulfill that requirement. The provisions of the Benn Act therefore continue to be fully effective, and a delay to Brexit beyond 31 October must therefore be pursued. The second reading of a Bill would not in any event represent assent to the Bill and all its contents. Any Bill is potentially liable to be amended during its passage through parliament, and so it is only after the Bill has completed all its stages and has received Royal Assent that it can be regarded as having been approved. (I will return to the question of compliance with the Benn Act below).

As I also expected, the programme motion that was voted on immediately after Second Reading was defeated, because a majority of MPs clearly felt that allowing only two more days to complete all the remaining stages of the Bill would have been wholly inadequate. The PM announced that the Bill would now be paused, but this was simply an inevitable acceptance of the procedural effect of this defeat. The effect of the programme motion having been defeated is to prevent further progress on the Bill until agreement can be reached (through the usual channels) on the further progress of the Bill. As the Leader of the House made clear, the Bill cannot proceed further without this. Simply introducing another programme motion immediately would be unlikely to meet with the approval of the House. So (at least for the remainder of this week) the Bill is ‘in limbo’, and so the business before the House on Wednesday and Thursday will, after all, be the conclusion of the Queen’s Speech debate. In the meantime, the Opposition has very sensibly offered to discuss the timetable for the Bill with ministers, so that an agreed programme motion can then be put before the Commons, and further progress can then be made on the Bill.

Returning to the requirements of the Benn Act, what section 1(4) requires is that the Prime Minister must seek to obtain from the European Council an extension of the period under Article 50(3) of the Treaty on European Union ……….. to 11.00pm on 31 January 2020. Very reluctantly, he sent a letter to that effect on 19 October, in compliance with the Act. But he announced his intention of phoning various European leaders this evening to persuade them not to agree a delay in response to that letter. The manner in which the letter was sent on Saturday, together with two letters that tended to contradict it was, as I observed at the time, legally questionable, but actively to lobby members of the EU’s Council of Ministers to refuse this request appears to me to represent a clear breach of the Act, and I am sure that the attention of the Scottish Court of Session will be drawn to this by the petitioners in the proceedings that are currently before the Court.

Some of the Tory Brexidiots have loudly proclaimed that “the law of the land” is that Brexit Day is 31st October, and (they claim) even a delay under Article 50 agreed by the EU cannot change that. What they are referring to is a definition of “exit day” in the definition clause (section 20) of the European Union (Withdrawal) Act 2018, which stated that this term meant 29 March 2019 at 11.00 p.m. Section 20(4), however, enables a Minister [by making a regulation] to amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom. This ensures that “exit day” can be adjusted to coincide with any revised date that may be agreed with the EU. The date has already been amended twice, first by the European Union (Withdrawal) Act 2018 (Exit Day)(Amendment) Regulations 2019 only two days before the original exit date of 29 March, changing the date to 12 April 2019, and then again only a week or two later by the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019, changing the date to 31 October 2019. The EU has been requested, in accordance with the Benn Act, to extend the date to 31 January 2020, and if they do so (as is quite likely, despite the contrary wishes of the PM), then it will be necessary to amend section 20 of the 2018 Act again to bring UK legislation into line with this new date. Brexidiots may not like this, but that is what will have to be done, even if it is not done until very shortly before 31 October. [30.10.19: And indeed the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 3) Regulations 2019 were made and were simultaneously laid before parliament at 2.30 p.m. today. They change "Exit Day" to 31 January 2020.]

UPDATE: 30 October: The wrigglings and writhings of this hopeless government became ever more bizarre last week. The sensible thing to do, having got a reasonable majority for the WAB on Second Reading, but having had their wholly unreasonable programme motion rejected (which sought to ram the remaining stages of the Bill through the Commons in only two days), would then have been to come back with a much more reasonable programme motion, giving a more sensible allocation of parliamentary time to the Bill. Such a motion would undoubtedly have been passed, and consideration of the Bill could then have continued. It was already clear by that time that the EU would almost certainly give the UK the necessary extension to allow this legislation to be considered, as they did earlier this week, and so there was no urgency in attempting to rush this legislation through the Commons with minimal scrutiny. Instead, the government chose to call a General Election, which (at the fourth attempt yesterday) they have finally achieved. The reaction of Brenda from Bristol to this news has yet to be ascertained. The probable outcome of this election is utterly unpredictable, although another hung parliament is a distinct possibility. We shall just have to wait and see. At least the parliamentary brawling will be suspended for six weeks; electioneering politicians are easier to ignore. Just make sure you go out and vote on 12 December.



  1. Very well explained Martin. I am on the fence with Brexit, and like most people I am fed up with it and want it resolved asap. Most leavers are not happy that the EU have such a hold over our country and our laws. Maybe if they offered us more favourable terms to stay a member of the EU, it would sway many Brexiteers.

    1. I have never understood where this myth about the EU having some sort of control over our country and our laws came from. It really is absolute nonsense. ALL our laws are, and always have been, made in Westminster (not in Brussels). There are European Directives that apply to all member states, and which are designed to ensure a level playing field for trade, and a high level of environmental protection. However, how each state chooses to give effect to such directions in their own law has always been a matter entirely for each member state. [Incidentally, none of the fiction that Boris Johnson wrote when he as a correspondent for the Daily Torygraph in Brussels had even a grain of truth in it, the story about ‘straight bananas’ being only one of many examples.]

      The Court of Justice of the European Union is there solely in order to adjudicate on disputes that arise over issues of European Law (i.e. the rules of trade, etc.). There are, or were until very recently, British judges sitting in that court. A significant proportion of the comparatively small number of cases involving the UK were decided in our favour. And please don’t let anyone confuse you over the European Court of Human Rights, which has absolutely no connection with the EU, and whose jurisdiction in respect of human rights in this country will be entirely unaffected if we do actually leave the EU.

      We have amazingly good terms from the EU already under our existing membership. In fact, with our generous rebate and various opt-outs, we have a significantly better deal than most other member states. This country has enjoyed huge benefits from its membership of the EU for the best part of half a century. It would be folly to throw that away, and we certainly couldn't expect to get terms that are remotely so advantageous in a future trade deal with the EU (as non-members), or with the many other countries around the world with whom we currently trade under the generous terms of current trade agreements negotiated with those countries by the EU for the benefit of all member states, including the UK. The UK alone simply won't have the negotiating clout with those countries that the EU has because of its huge internal market.

    2. Of course all of our laws are made domestically, but that deflects from the true purpose of the comment which anoymous posted.

      You mention Directives but completely omit Regulations & of course the Treaties, or the primacy of EU law over domestic law in the areas of EU competence.

      I've followed this blog for years, it's superb, which is why I'm perplexed by your misleading answer.

    3. Thanks for stating the case so clearly in this blog, Martin. The case for remaining is as strong as ever.

    4. In response to the first of the two replies on 24 October:- Those EU Regulations that have direct effect in member states are purely technical, and frankly uncontroversial. They relate to issues such as product safety, certain provisions for environmental protection (particularly as regards harmful substances int the environment), and other highly technical issues. All of the matters covered by such regulations are ones on which the UK would undoubtedly wish to maintain identical or substantially similar provisions in UK law. The underlying purpose of the regulations is the same as the purpose of EU Directives, namely to secure a level playing field for trade, fair competition and a high level of environmental protection. There can be no sensible objection to these EU regulations (such as the regulation that prohibits the intentional release of fluorinated greenhouse gases into the atmosphere, to take just one example).

      So far as the EU Treaties (such as the Maastricht Treaty and the Lisbon Treaty) are concerned, they simply set out the broad principles of the relationship that member states have with the EU, and in this regard they are no different from many other treaties to which the UK is a signatory, including the treaties governing our relationship with the United Nations and NATO. The UK’s defence policy is to some extent constrained by our membership of NATO, but I don’t think anyone would complain of the ‘loss of sovereignty’ that this involves. [Incidentally, some extraordinary rubbish has been published on social media, making all sorts of bizarre and entirely false claims as to the terms of the Lisbon Treaty in particular. Don’t be misled; there is nothing in the Lisbon Treaty that need cause us any concern whatsoever.]

  2. It's been 3 years. They're just not getting it. Also, regarding 'our laws', 'us' in this context is the United Kingdom, so, on a point of pedantry, I would just point out that regional law can come from regional Parliaments. Still, this blog post should be part of the national curriculum.