Is the Benn Surrender Act incompatible with Article 50?

Earlier this month the High Court of Justice in Northern Ireland published a judicial review from three applicants v the Prime Minister and others. Although not widely reported, it was commented on by Guido Fawkes, and the judgement itself is linked to by the website. It was a case of Remainers trying to derail Brexit by ever legal ruse they could think of. The Judge threw out all arguments, and saddled the applicants with all the costs.

One area covered in the judicial review is on Article 50, which I believe could be the basis of a legal challenge to the European Union (Withdrawal) (No. 2) Act 2019, colloquially called the Benn Surrender Act. Quotes from the review are cited as by paragraph and page. E.g. (3):4 is paragraph 3, page 4.

Article 50

The review quotes Article 50 of the Treaty of the European Union in full. 

Article 50 of this international treaty (the “TEU”) provides:

“(1) Any Member State may decide to withdraw from the
Union in accordance with its own constitutional
requirement.

(2) A Member State which decides to withdraw shall notify
the European Council of its intention. In the light of the 12 guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future
relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council acting by a qualified majority, after obtaining the consent
of the European Parliament. 

(3) The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph (2), unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. 

(4) For the purposes of paragraphs (2) and (3), the Member
of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it ….

(5) If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure 
referred to in Article 49.”

Article 49 makes provision for any European State applying to become a member of the EU. This contemplates a formal agreement between the Applicant State and the Member States.

Article 50 TEU Analysed

(55):46-47 

Certain aspects of Article 50 did not fall to be construed in either Miller or Wightman. Bearing in mind that the exercise is one of construing a measure of EU law, I consider that those aspects of Article 50 not addressed in either Miller or Wightman yield the following construction:

(i) First, there is no concept, meaning or definition of “negotiate” supporting the view that the clause beginning “… the Union shall negotiate … ” denotes a duty and exercise unilateral in nature. It takes two to tango. The concept of negotiation must surely be, depending on its context, something bilateral or multilateral in nature. This discrete element of Article 50(2) would be emptied of meaning and rendered nugatory if it is not to be construed thus.
(ii) There is no legal context known to this court which dictates that negotiations must culminate in a legally binding agreement between the negotiating parties. There is nothing in the text of Article 50 which displaces this proposition. Nor is there any identifiable basis or rationale for implying any different or contrary
construction.
(iii) Article 50(2) clearly establishes an imperative, namely a negotiated and concluded withdrawal agreement, without purporting to mandate that this occur.
(iv) Article 50(3) expressly contemplates the possibility that the negotiations required by Article 50(2) will not culminate in a withdrawal agreement.
(v) The plain aim of the two year period specified in Article 50(3) is the promotion of stability and certainty in the EU.
(vi) The provision made in Article 50(3) for consensual extension of the basic two year period is plainly designed to further the overarching imperative of a negotiated and concluded withdrawal agreement.

The Descisions in Wightman and Miller are covered respectively by (20-21): 15-16 and (22):16.

The first point dispells any claims that it only Britain that should negotiate, with the EU acting as immovable.

The second and third points dispel any notion that an agreement must be concluded as a condition of leaving the EU. The fourth point is that Article 50(3) possibility that a member state will exit without a deal.

The fifth and sixth points are relevent to the Benn Surrender Act. The two year noticification period is clearly for “the promotion of stability and certainty in the EU“. By implication any extension of the period is to achieve that aim. If a conclusion of a withdrawal agreement is not possible, as the parties are too divided, then a further extention is not justified. It would go against the spirit if Article 50 to use an extention as a means of punishing a member state for wanting to leave when such an extension is furthering a period of uncertainty and disrupting the normal business of the EU.

Further, the Surrender Act potentially impels the Prime Minister to submit a request to the EU to extend Article 50 until 31st January 2020.  Yet the same Parliament has on two occasions has failed to trigger a General Election to remove Prime Minister Boris Johnson, whose declared central policy aim is to leave the EU on 31st October “do or die“. In so doing Parliament implicitly recognizes the authority of Prime Minister Johnson as the Head of State in the negotiation of international treaties. Parliament is therefore conflicted.

But most paradoxically, whilst Britain remains a member of the EU it is still bound by the Treaty of the European Union. The Surrender Act in compelling the Prime Minister to potentially request an extension of the withdrawal period for purposes other than negotiating a withdrawal agreement, and in causing continued disruption to the EU as a whole, and Britain as a member state in particular, are clearly going against the intent of Article 50(3) of the European Union. Parliament should be honest and revoke Article 50. However, although a majority could be achieved in both houses of parliament, there is no democratic mandate to do this. In other words the House of Commons in wanting to frustrate Brexit and to remain in the EU is potentially in breach of the clear intent of TEU Article 50(3), creating a clear constitutional mess in an EU member state, all to suppress the EU Referendum result for which the House of Commons has no democratic mandate.

Kevin Marshall