Michel Barnier by The Jacques Delors Institute (CC-BY-2.0) 2

Image by The Jacques Delors Institute (CC-BY-2.0) 2

According to the EU chief Brexit negotiator, Michel Barnier, Brexit must be delayed!

Michel Barnier has insisted that Brexit must be delayed even if Theresa May manages to get her deal through the House of Commons in the next ten days.


Speaking at a press conference, Michel Barnier said there was not enough time left for the European Union to ratify the Withdrawal Agreement, if it does get the approval of MPs on Tuesday the 12th March. So there would have to be what he called a 'motivated' or 'technical' extension.

In fact, when asked if an extension was the only option once the deal was voted through by MPs, his answer was "Yes, you could say that".

The PM has so far insisted that there is enough time to get everything buttoned up on both sides of the talks before our exit date of the 29th March. So this declaration by the EU negotiator will put a very large housefly in that ointment.

To cut to the chase then, the only way we can now leave the EU at 11 pm on the 29th March 2019 in accordance with current statute law, is if we leave as we should on WTO terms.

To leave with May's deal will now require the PM to ask for a vote to extend Article 50 in order to actually make her deal a viable option.

Now, the government is able, according to law lecturer Robert Craig writing in ukconstitutionallaw.org, to use the Royal Prerogative to gain a short extension of Article 50.

His thinking is that, as a short extension does not conflict with the law as it is set up, especially as the date in the Withdrawal Act can be amended to cater for such an event, then the government could just get on and extend.

But one point that occurs to me is that, as the author points out, the European Parliamentary Elections Act 2002 (or EPEA) has been repealed. So I assume it is legally impossible in UK domestic law to hold EU elections at present.

Now, as I discussed in my video this morning, to extend Brexit beyond May 22nd we would have to hold EU MEP elections or it would be illegal under EU law and therefore illegal under UK law if we were still in the EU. If you get my drift.

So if the Royal Prerogative alone was used to try and extend Article 50 beyond the date of those elections and no domestic law was there to run those elections, then the UK government would, I assume, be acting beyond its powers.

So, my reading of his article and the interpretation of the Royal Prerogative, would mean that a government attempting to formally request an extension of Article 50 beyond the point at which EU elections were required, would almost certainly need to use a full Act of Parliament to do it.

My reasoning being that, for a Minister of the Crown to be able to legally change the exit date in the Withdrawal Act, it would surely require a properly legal decision to have been previously taken?

After all, Governments can't use Royal Prerogative powers at will to override statute law, otherwise they would be omnipotent.

So, I would say, that means that a full constitutional act would need to go through both the Commons and the Lords to Royal assent in order for the government to be able to legally ask Brussels for an Article 50 extension of more than 54 days. And it would possibly need to be accompanied by a whole raft of other legislation to make an EU MEP election possible in UK law.

And the EU could still say no.

And they now have only 27 days in which to do that and, after the 14th of March when MPs are due to vote on extending article 50, they will only have 15 days left to do all that in!

And now that the European Union has reallocated all the MEP seats for the next election and reduced the total number, then it would have to presumably go through the same sort of exercise within the same timescale in order to accommodate us.

Apologies for the complexity, but in short as a layman in these matters I see it as:

If MPs vote to extend Article 50 for 54 days or fewer, then Theresa May can toddle off to Brussels and organise and agree it.

If MPs vote for an extension that encompasses the EU elections on the 23rd to the 26th of May, then I would say that at least one Act of Parliament would have to be passed before the UK could make the formal request.

And what is the EU likely to say? Remember all EU27 member states have to agree unanimously.

We know that the EU will not change the Irish border backstop in any way and we also now know that we will have to extend article 50 just to try and get May's deal through with no guarantees.

It is now time for Brexiteers to press home the advantage and demand we leave as promised at 11 pm on the 29th March 2019 and do so under WTO terms!

So it will be interesting to see what Tory Brexiteer MPs say about this, won't it?

And finally you have to wonder how on earth Jeremy Corbyn and his Labour Party can seriously talk about second EU referendums at this stage, not to mention Vince Cable and his Lib Dems.

Anyway, please let us all know what you think by leaving a comment below.

Thank you for watching.



Robert Craig: Can the Government Use the Royal Prerogative to Extend Article 50?


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