UK Constitutional Law Association

Oliver Garner: The Benn-Burt Extension Act: A roadblock to a No-deal Brexit?

Introduction: extension and the Rule of Law

On 9 September, the EU (Withdrawal) (No.2) Act 2019 (‘Benn-Burt Extension Act’) received Royal Assent.  The Benn-Burt Extension Act imposes a statutory duty upon the Prime Minister (if the relevant conditions are met) to request and accept an extension of the withdrawal negotiating period under Article 50(3) TEU.  However, the Prime Minister has repeatedly stated that he will not request such an extension, ostensibly in clear conflict with the statutory obligations in the Act.

This reticence has prompted criticism over the Government’s commitment to the Rule of Law, and has given rise to speculation as to whether the obligations of the Benn-Burt Extension Act can be circumvented legally.  The Foreign Secretary has even stated that the Government will ‘test the law to the limit’.  Boris Johnson faces a trilemma: (1) avoiding an extension to Article 50; (2) remaining Prime Minister; and (3) not violating the Rule of Law.

This post argues that no legal interpretation of the Benn-Burt Extension Act can reconcile the Government’s position with the obligations under the Act. The Act places control over avoiding a further extension in the hands of the House of Commons.  This can be realised through the House of Commons approving a Withdrawal Agreement under section 1(1), or approving withdrawal without an agreement under section 1(2) before 19 October. This post highlights a third, less obvious scenario whereby the UK could find itself back on the road to a ‘no deal’ exit on 31 October: if the House of Commons decides, under section 3(3) of the Act, to reject an extension proposal from the European Council to a date other than 31 January 2020.  It is therefore crucial that both the European Council and the House of Commons understand the implications of section 3 for a no deal Brexit in making their respective decisions on extension.

The third scenario and operation of the Act

This third option depends on the following scenario: the conditions under section 1(1) and 1(2) have not been met; therefore the Prime Minister is obliged under section 1(4) to send the extension request letter in the form mandated by Schedule 1 of the Act.  This is predicated on the position that, before 19 October, the Prime Minister may not rely upon any executive power outside the scope of section 1(4) in order to request an extension that does not comply with the form detailed in Schedule 1. The next step of the scenario would be for the European Council to propose an extension to a date other than 31 January 2020 (the date specified in section 1(4)) in response to this request.

This would trigger the conditions in section 3(2) and section 3(3) of the Benn-Burt Extension Act.  Section 3(1) holds that if the European Council were to grant an extension to 31 January, the Prime Minister must immediately accept it. By contrast, if another date is proposed, then section 3(2) introduces a dual temporal condition: acceptance must occur either (1) within two days, or (2) before the end of 30 October, depending on whichever is sooner. Section 3(3) then provides an exception to this condition that empowers Parliament to decide upon the new extension date: if the House of Commons were to decide not to pass a motion within the section 3(2) time-period, then the obligation for the Prime Minister to accept does not apply.

In this scenario, an executive discretion for the Prime Minister, provided for in section 3(4), becomes operative. The provision states that “[n]othing in this section shall prevent the Prime Minister from agreeing to an extension…otherwise than in accordance with this section”.  The House of Commons Library explains the effects of these words: ‘If the House of Commons “decides not to pass” a specifically worded motion approving the extension, the Prime Minister then has a free choice whether or not to agree to the extension under subsection 3(4)”.

On this reading, any pre-existing executive power to request extension for a different period, as exercised by the previous Prime Minister Theresa May on 20 March and 5 April 2019, has been limited by the provisions of section 1 and section 2 of the Benn-Burt Extension Act. This raises an important distinction between the Benn-Burt Extension Act and the first EU (Withdrawal) Act 2019 (‘Cooper-Letwin Extension Act’). Section 1(6) of the Cooper-Letwin Extension Act states that ‘nothing in this section prevents a Minister of the Crown from seeking, or agreeing to, an extension’ (emphasis added). The Prime Minister had already requested a second extension on 5 April 2019, before the Cooper-Letwin Extension Act received Royal Assent on 9 April. But if Theresa May had only sought the extension after the Act had come into force, she would have been able to request an extension to a date other than that passed in a House of Commons motion under section 1(2) of the Act, provided that this extension would have ended later than 22 May 2019. By contrast, the present Benn-Burt Extension Act does not permit the Prime Minister to seek any extension other than one which conforms to the terms of the Act.

The crucial point is that, within this scenario, any executive discretion for the Prime Minister is limited to the acceptance of any extension offered by the European Council. The Prime Minister would only be free to accept or reject an extension offer from the European Council upon the fulfilment of the very narrowly defined circumstances detailed above. Crucially, the House of Commons remains in control, as section 3(3) of the Benn-Burt Extension Act requires the House of Commons to reject the extension before the Prime Minister’s discretion is activated.

Conclusion: the responsibility of the European Council and the House of Commons

Significantly, the scenario outlined above depends entirely upon the European Council. Subject to the unanimous agreement of the 27 heads of state or government, the institution enjoys discretionary power under Article 50 TEU over whether to grant a request for an extension, up to what date, and subject to what conditions. The United Kingdom retains the power, under Article 50(3) TEU, to agree to these conditions, a power which in domestic law has now been regulated by the Benn-Burt Extension Act.

It is paramount, therefore, that the European Council is aware that the consequences of a decision to set an extension date other than 31 January 2020 could set in motion events that may lead to the United Kingdom withdrawing without agreement on 31 October. This would arguably even be the case if the European Council grants a ‘flextension’, with different dates dependent upon different conditions, as it did for the first extension Decision of 22 March 2019, and the second extension decision on 11 April 2019.  In turn, the House of Commons must be aware that a decision under section 3(3) not to accept a different date or dates would hand power back to the Prime Minister to reject an extension. The Act has severely restricted the road to a no-deal Brexit on 31 October, but it has not entirely blocked it off.

The author would like to thank Jack Simson-Caird, Paul Craig, and Graeme Cowie for comments upon earlier drafts of this piece.

Oliver Garner is a Brexit Research Fellow at the Bingham Centre for the Rule of Law, British Institute of International and Comparative Law, and a Ph.D. candidate in the Law Department of the European University Institute.

(Suggested citation: O. Garner, ‘The Benn-Burt Extension Act: A roadblock to a No-deal Brexit?’, U.K. Const. L. Blog (13th Sept. 2019) (available at https://ukconstitutionallaw.org/))

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11 responses to “Oliver Garner: The Benn-Burt Extension Act: A roadblock to a No-deal Brexit?”

  1. Roger Avatar
    Roger

    It’s an appalling use of Parliament and our law-making processes to attempt to force the duly appointed leader of the country to do something he’s vowed not to do and which was a fundamental reason for his selection.

    This epitomises ultra-Remain politicians and their disregard for the decision of the people more than three years later having still failed to execute it and failed to meet their undertakings on which they in the Labour and Conservative parties were elected in 2017.

    My disgust for them, politics and Parliament is unlikely to subside in my lifetime whatever constitutional niceties may provide as debating points.

    Reply
  2. Roger Avatar
    Roger

    Further to earlier comments I made, I’m interested in views on reform shown to be necessary from what we’ve learnt already in Brexit so far, and we’re not even out yet, let alone established in our anticipated new independence.

    Such as:
    – making MPs properly and more immediately responsive to the requirements of their constituents. I’m not only thinking of areas heavily in favour of Brexit betrayed utterly by MPs such as Cooper, but also when criminal conviction applies or complete failure of service such as in Sheffield. To me, a process that takes no longer than a month and can end in dismissal is needed.
    – governing parties to be held responsible for more closely meeting their published manifesto, remedy mechanisms, again fast acting. Mechanisms for reasonable amendments of manifestos to accommodate change.
    – defining the role of the Speaker and mechanisms for enforcing due compliance, removal/replacement if necessary, again expeditiously.
    – review of the FTPA
    – HoL reform, opportunity for a form of proportional representation, and should a second elected chamber then have parity with HoC
    – HoC reform. The robust confrontational style is I think GOOD for democracy but what are the faults? Does questions to the PM (and similar to other Ministers) work in getting solid answers/commitments/action from govt?
    – what about postal voting?
    – how can voting be improved and greater turnouts achieved?
    – should the voting age go back to 21 or even 25 to reflect the lower level of responsibility of younger people?
    – location and facilities for Parliament. Have you ever visited HoP? Is the place/buildings and location conducive to good govt, MPs executing their work, security, debate, access to the people, communications? Is it good to work surrounded by history and anachronistic habits/customs/processes? Should it be moved? Centrally? Where?
    – what else can we do to make our Parliamentary democracy more responsive to the people and faster acting? Should it continue to be a “Parliamentary democracy”?

    How do we (the people) achieve the changes necessary to improve the performance of Parliament and the govt when the means to make changes lies with those bodies? How do we agree what the best changes should be?

    Is this too much for constitutional experts to respond to? Some reading this are experts. Bearing in mind how the people have been failed in recent times, what do you think should change and how?

    Reply
    1. Aethelbald Avatar
      Aethelbald

      >> making MPs properly and more immediately responsive to the requirements of their constituents

      MP’s are not delegates. This is not the Soviet Union. But they can be and are sometimes are recalled.

      >> governing parties to be held responsible for more closely meeting their published manifesto

      The required mechanism is already in place. It’s called a General Election.

      >> defining the role of the Speaker and mechanisms for enforcing due compliance

      The role is already defined and has been for centuries. It is based on precedents, precedents that were once unprecedented. The speaker can be removed at any time by a simple vote of the Commons.

      >> should the voting age go back to 21 or even 25 to reflect the lower level of responsibility of younger people?

      Evidence, please, I had not noticed it, and in fact I would suggest the contrary.

      Reply
      1. Roger Avatar
        Roger

        Thanks for trying to make out there is nothing wrong when the system is obviously not delivering for the majority and obstructionists are favoured over those trying to act on the people’s decision.

        You would further reduce the voting age while many 21/25 year olds are still living with parents, have limited or no work experience and have responsibility for nothing, which obviously undermines their ability to make sound decisions.

        Meanwhile all the brains of the experts on the constitution appear to have nothing to offer either.

    2. Robert Avatar
      Robert

      There is a number of observations I would like to make with regard to the points you have raised, but before I do I feel it necessary to take issue with your previous comment regarding how parliament has acted in relation to the executive of late.

      Your previous post asserts it is an “appalling use of parliament” to “attempt to force the duly elected leader of the country to do something he’s vowed not to do”. I would suggest it is the duty of any parliament to hold the executive to account in this manner if and when they deem it apparent that the executive is acting in a manner contrary to his duty. His duty being to uphold the interests of the country and it is for parliament as a whole being representatives of the people to decide what these interests are. Whether the PM has “vowed not to do something” should not be relevant to how parliamentary processes proceed. Remember in our constitutional system the executive is answerable to parliament as a whole and a government can only exercise its power as long as it holds a functioning majority in parliament, which I remind you this government does not.

      The next point I would take issue is your assertion that “This epitomises ultra-Remain politicians and their disregard for the decision of the people more than three years later.” This is a subjective and dare I say slightly dangerous reading of the current situation. It implies, intentionally or otherwise, that a one-time referendum should bind the hands of any future parliament regardless of circumstance. That is quite simply not constitutionally sound and utterly wreckless. It is obvious that circumstances have changed significantly from when that original decision was made, it is the duty of any functioning parliament to act accordingly in the best interests of the country as a whole.

      Now onto your other points, which I will briefly comment on.

      “making MPs properly and more immediately responsive to the requirements of their constituents. I’m not only thinking of areas heavily in favour of Brexit betrayed utterly by MPs such as Cooper, but also when criminal conviction applies or complete failure of service such as in Sheffield.”
      Im not entirely sure you’ve thought about this one. MPs are representatives, not delegates. We elect them to act according to their own conscience and values in upholding our interests. In this regard Yvette Cooper has no more ‘betrayed’ her constituents than Kate Hoey has. We have a remedy for those that are not satisfied with their representatives, its a General Election.

      “defining the role of the Speaker and mechanisms for enforcing due compliance, removal/replacement if necessary, again expeditiously.”
      The Speakers role is set out by convention and precedent which is quite extensive so I wont go into it here. However again we have a remedy for those unhappy with the Speakers execution of his/her role, that is a simple vote in the House of Commons.

      “governing parties to be held responsible for more closely meeting their published manifesto, remedy mechanisms, again fast acting.”
      Again we already have a remedy for this in the form of elections, however I do note a certain implication in your comments that you would prefer some kind of criminal repercussions for parties or representatives that dont, effectively, do what you say. That is simply not how our system has ever or in any functioning democracy should work.

      “HoL reform, opportunity for a form of proportional representation, and should a second elected chamber then have parity with HoC”
      I would cautiously agree with you that perhaps there is room for changes with the House of Lords. Personally I would be in favour of second elected chamber similar to that of the US Senate but perhaps with longer electoral terms. For example while the Commons is a five year elected term, perhaps the Lords could be 7 or more years and elections for which could be held at a different time to the Commons. That would help prevent one chamber having significant power over another and prevent an abuse of power in either chamber.

      “should the voting age go back to 21 or even 25 to reflect the lower level of responsibility of younger people?”
      I get the feeling you say this not as an intellectual thought exercise but more because you dont like the tendency for younger individuals to hold a different view to your own, feel free to correct me if Im wrong. My own personal view is in line with the old adage “no taxation without representation.” Taxation starts at age 16 in this country, that is also the age at which one can join the military among many other things. I do not believe that any person should be taxed without also affording them the opportunity to have their say over those who tax them in the form of a vote. I would further suggest that your assertion that younger people are somehow less responsible or less able to make sound decisions is somewhat baseless.

      I hope my responses to some of your comments and points offer you food for thought and inspire further discussion on these topics.

      Reply
  3. Get on the Istanbul Express | Verfassungsblog

    […] resign than send an Article 50 extension letter to Brussels and explains what would happen next. OLIVER GARNER highlights the fact that a no-deal Brexit could still happen if the European Council offers an […]

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  4. peterb Avatar
    peterb

    I struggle a bit with Section 1(4) which is a rather convoluted single sentence. It can be read as saying that the reason to request an extension is to debate and pass the withdrawal agreement as tweaked by the inter-party talks. In other words the May agreement. If Parliament is offered that chance prior to 19th October then does the reason for requesting the extension fall away regardless of the outcome of that vote?

    My reading of 3(2) is that if an offer of a date other than 31 Jan is made (presumably on 17th or 18th October at the Council meeting) then the PM has 2 days (not clear if calendar or working days) to accept.
    However, 3(3) is express in calendar days, so includes the weekend 19th & 20th. That is if on the 18th the date is offered then 3(3) has to be exercised over the weekend. Does that mean Parliament has to be recalled to sit?

    Section 3(3) says that 3(2) does not apply (i.e. he does not have to accept the offer) if Parliament has not passed a motion to accept the offer. However, unlike (say) Section 2 which provides that a Minister must act, there’s nothing in 3(3) that compels a Minster to propose the motion referred to.

    Although you indicate above that 3(4) would be exercisable after 3(3) had been put and failed, I can’t see anything in 3(4) that precludes the PM from applying 3(4) at an earlier stage to request a time other than that set out above it. That request does not appear to require any sort of validation by Parliament.

    Thus could the PM simply request a 24-hour extension (for example) or indeed an even shorter one than that?

    One further point, the PM does not have to request anything till Midnight on Saturday 19th October, which is after the Council has ended, that makes action to debate the request somewhat difficult.

    Reply
  5. Roger Avatar
    Roger

    Thanks, Robert, for trying to engage with the points I raised, though I felt patronised by one or two phrases!

    Bearing in mind that Parliament authorised action under Article 50 with a massive majority, in accord with the 2016 vote, to hijack the law to tie the hands of the PM to only then act in certain ways, conflicting with Labour & Conservative manifestos, damaging the country, risking further delay, may not be an abuse of the constitution, but it is a abuse of the nation. It holds the UK in limbo, or attempts to. The potential for delay and undermining of the nation’s leader in negotiations is in no one’s interests. That this has been possible is appalling. You accurately say the govt has no majority – the FTPA and conniving duplicitous and cowardly MPs are ensuring this further state of sclerosis continues, again to the detriment of the country, the remedy of a GE is blocked! We can surely do better than this! Many of the responsible MPs will surely reap their just reward when there is a GE, but what a disgrace that the same MPs can prevent one! What improvements can be made?

    The politicians promised to act, it was a “once-in-a-generation, we-will-act-on-your-decision” vote political undertaking, so with delays/decisions of Parliament extending the timescale, it is Parliament itself that is passing obligations to future Parliaments. Are MPs individually constitutionally obliged to work “in the best interests of the country”, what is that supposed to mean in practice, who defines that? When they work against their own undertakings, against the people’s (rare) decision and their manifestos, there should be a better more immediate remedy than “wait till the next GE”. It’s no wonder even the Queen may have a low opinion of current politicians. Hence the need for change. I hope you don’t mind if I mention that “reckless” is the correct spelling.

    If the role of MPs in regard to their constituents is as you describe it, then the people are being let down. The obligation to the people needs to be defined differently and with an expeditious remedy for failure. That is my point. The status quo is failing, it is inadequate. Why would people continue to vote/elect MPs if they fail them? Again, these days, waiting patiently for a GE is an inadequate remedy. I fail to see how Cooper’s actions could be seen as anything but a betrayal of the people who put her in Parliament and her own undertakings. She should have resigned in 2016 or stood down in 2017 in the circumstances of the manifesto & the people’s decision clashing with her beliefs. Change is needed.

    For clarity, I’m not necessarily advocating criminal charges should be the remedy.

    Thanks for the comments on HoL reform, which is badly overdue.

    I take your point “no taxation without representation”, but paying tax doesn’t necessarily mean the tax-payer has capacity to vote. Not everyone qualified to vote pays tax. To say it’s “baseless” to contend that voter capacity should depend on attaining a level of responsibility and ability to make decisions requiring a minimum level of life experience that a majority of today’s 18 year olds don’t have, is a thoughtless dismissal of an obvious truth. Hardly baseless when most have never worked, paid their way, or fed themselves. If a particular age is a voter qualification, then today’s 18 year olds are less qualified than those of 1970. Perhaps age is not the right criteria for identifying sufficient responsibility, though it’s hard to see a practical alternative.

    I’m grateful you took the trouble to write, though it’s disappointing not to hear more on ideas to remedy the deficiencies the referendum and Brexit process have exposed.

    Reply
  6. Ben Avatar
    Ben

    You might want to sack your lawyer or have him read it again. You are missing are rather big and glaring loop hole.

    Reply
  7. Ian Avatar
    Ian

    Refusing a General Election when one is clearly needed to restore Her Majesty’s Government i.e. when it is unable to fulfil its duties on behalf of the Crown, to improperly set aside clearly required Queens Consent thus depriving her Majesty of said measure and then to order Her appointed counsel, the Prime Minister, to act against his will, is surely a conspiracy by MPs and the Speaker, and Treason Felony under and in terms of the Act 1848 Section 3.

    Reply
  8. Benzies Cha Avatar
    Benzies Cha

    Did not understand a word of that

    Reply

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