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Whether the PM has the Queen's backing was not a legal issue for the Supreme Court's judgment, which was mainly concerned with the legality of the advice that the government chose to give the Queen.


Prof Peers, an interesting discourse for sure. If Parliament could be thus tied in ANY way, then the act does indeed give control of our country -- to a foreign body? Also, are you entirely happy or sure that inter alia Article 50 allows the EU to effectively hive off and force us to accept that a portion of our country must remain BOTH in the customs union and single market in potential or indeed actual perpetuity? If our "constitutional requirements" were so severely disregarded then surely this would not only be also treasonous but would contravene their own TEU law.

The tying of our own Executive, Parliament, and Monarch's hands seems to me to have been tolerated not only beyond all reasonable limits, but must contravene so many legal provisions, far beyond those above. Your expert views on these two points will be greatly appreciated. I won't publish any further comment hysterically claiming "treason".

The critics of the law have not adduced any serious argument that it is unlawful. Constitutional requirements refers to the withdrawal process, and it's up to the UK to determine what they are.

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The Supreme Court has said that only the unification of Ireland triggers the principle of consent. Northern Ireland is not in the single market in perpetuity on any interpretation of the withdrawal agreement; the customs union can be replaced by different arrangements.

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I think there is an issue of how quasi-permanent the backstop provisions are, but that's a different issue. Parliament has bound the UK to accept an extension to Jan 31st if offered, but as I point out the conditions of membership could not be changed. In extremis parliament could vote to amend the Benn Act if it had a problem with an extension to Jan 31st after all for whatever reason. Given the Benn Act did not get Queen's consent for the diminution of the prerogative, Johnson may argue any effects of the Act do not touch use of the prerogative, and thus he may reject the EU's terms for an extension.

This would end up in the courts - I recommend he advise the Queen to sack the 11 errant "justices" of the "Supreme Court" by use of the reserve powers and appoint new ones. If the Queen demurs, just tell her her power is to counsel, advise and warn, but having delivered a warning, she must follow the PM's advice on use of the reserve powers. This would put Brenda Hale where she belongs on the dole queue Complete nonsense. Queen's consent comes in at the debate stage, and ends debate on a bill if there is no necessary consent.

On the Benn bill the Speaker ruled that Queen's consent did not apply, so no issue arises. You must know that the PM cannot simply claim that Acts of Parliament are invalid or do not bind him.

Johnson could argue the Benn Act is valid, but its only effects are those that do not touch the prerogative. He would need to convince a court of this interpretation. Until he manages to do that, the law applies and the PM has obligations pursuant to it. I note that the government has not adduced this argument in the litigation in Scotland.

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Tuesday, 17 September Third Time Lucky? The new law on extension of UK membership of the EU. Professor Steve Peers , University of Essex. To explain and analyse the new law, given the broad public interest, this blog post takes a question and answer format. Its main purpose is to provide for the possibility of a further extension of EU membership.

The new law makes no mention of revoking that notification, and although it refers expressly to the possibility of parliament voting again on whether to accept a withdrawal agreement, it does not require Parliament to accept an agreement or even to vote on whether to accept one. It also provides for the possibility of parliament voting to accept no deal — although this seems unlikely given that Parliament passed this Act with the express intention of avoiding an imminent no deal outcome.

As noted already, it provides expressly for the possibility of Parliament voting again on whether to accept a withdrawal agreement, or Parliament voting to accept no deal.


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Both of them are forms of Brexit. Also as noted already, it does not refer in any way to the revocation of the notification to leave. Nor does it refer to another referendum on whether to leave. Although some supporters of the bill support another referendum, the bill itself is silent on this. Extending EU membership to another date still leaves intact the possibility of leaving on that date with no deal as the default position , or leaving at that date or earlier if a withdrawal agreement is ratified. He must request an extension to January 31 However, there are exceptions.

If Parliament votes for a withdrawal agreement or for a no deal no later than 19 October, then the obligation to request extension is never triggered. It seems unlikely that Parliament would vote for no deal given that the new law was backed by opponents of this outcome , but what about a withdrawal agreement? However, this is not reflected in the letter of request which the Prime Minister must send the letter is a Schedule to the new law , and does not impact upon the separate obligation to accept subject to an unrelated exception an extension decision if the EU adopts one.

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I commented earlier on the legal issues of the first extension decision and the second extension decision. It remains to be seen what the EU will do; remember that rumours about Member States vetoing extension proved to be unfounded in spring. The European Commission and European Parliament have no formal role in the extension decision, although they can express a point of view that might influence national leaders. If the extension is to the date of January 31, the Prime Minister must accept it. Some have argued that Johnson could veto the extension decision as a member of the European Council.

This is false: Article 50 4 says that only the remaining Member States vote on this issue. What if the EU sets conditions for extension?

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The CJEU has established in its Wightman judgment that the current status of a Member State cannot change during any extension; demanding that a Member State gives up its opt outs, etc would violate that principle. There is a complicated question of the UK appointing a European Commissioner, which would conversely arguably be simply a matter of complying with its existing obligations as a Member State. I discuss this further below. The new law obliges this to take place automatically. It could also leave the EU beforehand if it ratifies a withdrawal agreement.

Furthermore, some believe that the departure date can or must be brought forward to an earlier date if the UK requests it, but this interpretation is disputed. Note that, according to the Wightman judgment, the UK can revoke its notification to leave unilaterally, so cannot be subject to conditions like giving up opt-outs in return for staying. The new law is silent on any of these further developments, including any further extension request. It must also table a motion in the Commons and the Lords about the report.

If that motion is amended or rejected, the government must publish a further report by 10 January with a plan for further such negotiations. In any event, the government must make a further report on the progress of negotiations every 28 days starting on 7 February unless an agreement with the EU is reached or the House of Commons passes a resolution otherwise. However, attempting to change the government in a short space of time might be legally and politically difficult. If the Supreme Court accepts that there are no judicial limits on the prorogation of Parliament, the government might advise the Queen to prorogue it again, which would cut off any attempts at legislation or confidence votes.

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Legally, the possibility of non-compliance has already been brought before the Scottish courts, in a pending case. It remains to be seen what remedies courts might be willing to order in order to enforce the law.

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If such an argument is raised in litigation, it would remain to be seen if a court accepts it; but the advocates of this view have not pointed to any precedents in which a court struck down an Act of Parliament on such grounds. This is an incredibly weak legal argument. Article 50 says nothing about a request for an extension, and therefore nothing about how a request must be made. It does refer to the withdrawing Member State accepting a request, but says nothing about how that process of acceptance takes place. It refers to national constitutional requirements determining whether a notification of leaving the EU is sent, but does not define what those requirements are.

This remains to be seen. It did so in , with a decision that says that the number of Commissioners is equal to the number of Member States. At the time of the second extension, it was debated whether the UK would have to hold elections to the European Parliament. It was decided that it would, since the usual obligations of membership continued to apply. Logically the same applies to another extension of membership as regards the Commission. There are several legal issues and possibilities though.

EU law does not expressly state that a Member State must nominate a Commissioner, although arguably that is an implicit obligation.

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This could be enforced by legal proceedings, which could in principle be fast-tracked. The EU might be willing to approve an extension without a nomination although that might be legally challenged , or to overlook the absence of a nomination if the extension is short. On previous occasions, the appointment of a new Commission has been delayed for a few months or weeks for various reasons. It is not clear whether or not the actions of a Commissioner lacking in numbers would be legal or not; but the new Commission could hold off from making proposals until the status of the UK was clearer.

Most obviously, the European Council could amend the law so that only 27 Commissioners need to be appointed that requires a unanimous vote, including the UK, although there can be extensions. The notion of appointing a Commission with two Commissioners from another Member State might be challenged in light of the preamble to the decision on the number of Commissioners, which as noted above refers to one national of each Member State.

Politically, either of those two outcomes might backfire politically on Remain advocates, for obvious reasons. It would remain to be seen how the EU might try to address these issues in the event that it wishes to adopt an extension decision and the UK is unwilling to suggest a nominee for the new Commission. Politically, the refusal to nominate a Commissioner might be intended to deter the EU from offering an extension decision in the first place.

Time will tell whether it becomes an issue in practice. Steve Peers 17 September at Steve Peers 18 September at Unknown 26 September at Unknown 6 October at Steve Peers 7 October at Steve Peers 8 October at Steve Peers 10 October at Their insights into the nature of close friendships between women and colleagues is remarkable for both its honesty and its optimism.