Brexit and European Union Law
The free London business newspaper, City AM , reported in its edition of 27th September 2019 of a rumoured plan for the UK Government to force through Brexit at 11pm UK time on 31st October 2019, deal or no deal, by making use of EU law.
This is despite the new European Union (Withdrawal) (No.2) Act 2019, which requires the UK Prime Minister to apply for an extension of the Article 50 EU Withdrawal period until 11pm UK time on 31st January 2020 if by 19th October 2019 the UK and EU have not achieved a Withdrawal Agreement approved by the UK Parliament or the UK Parliament has not approved a "no deal " Brexit.
How could this be ? ...and, even if it can be, how ironic is it that the UK Government would be relying on the mechanisms of EU law itself to override an Act of the UK Parliament?
10 Downing Street is not commenting so far and, therefore, the rest of us can continue to speculate as to what this is all about.
Section 2 of the UK European Communities Act 1972 appeared to recognise the supremacy of EU law over UK national laws within the areas of competency of EU law and this has been affirmed by decisions of the UK Courts and of the European Court of Justice, most famously in the series of five cases in the late 1980s and in the 1990s known as the "Factortame" litigation.
Section 2(2) of the 1972 Act permits this supremacy of EU law to be implemented, amongst other ways, by the use of the Royal "Order in Council " procedure and the rumoured plan suggests that the "Order in Council " procedure would be invoked by the UK Government to prohibit or at least postpone the implementation of the above-mentioned 2019 Act as being contrary to the objectives of the Article 50 regime in laying down steps for the UK's withdrawal from the EU on 31st October 2019 unless there is a genuine wish on the part of the UK Government ( which currently there is evidently not) to defer Brexit until a later date.
This purposive interpretation of the 1972 Act is in some ways not dissimilar from the approach of the UK Supreme Court in the recent "Miller" and "Cherry " prorogation of UK Parliament cases in outlawing the prorogation advice given by the UK Parliament as being inconsistent with the valid objectives of the prorogation procedure. Another piece of irony, given that the prorogation cases were decided against the UK Government.
Sir John Major, the former UK Prime Minister and a Remain campaigner, was quoted by City AM as saying on the other hand that "If this route [ie the Order in Council route to prohibit or postpone the 2019 Act] is taken - it will be in flagrant defiance of Parliament and utterly disrespectful to the Supreme Court".
Sir John Major's point is presumably that , far from being in line with the thinking of the Supreme Court, any manoeuvre to invoke the Order in Council procedure in the context of the prohibition or postponement of the 2019 Act would , like its invocation in the context of the unsuccessful attempt to prorogue the UK Parliament, itself founder upon the rocks of impermissibility.
All the above may prove to be of interest only to lawyers because events may take a different turn but , given that the Law is now at the very heart of the struggle between Brexiteers and Remainers, it is as well to be aware of the possible arguments.
