Letter to The Times: Parliament’s (limited) capacity to prevent a no-deal Brexit

The following letter was published in The Times on 12 August 2019. It responds to an article, published in the same newspaper on 9 August, in which Professor Vernon Bogdanor made a number of suggestions about Parliament’s capacity to prevent a no-deal Brexit. (Some of the same suggestions were also made in a Guardian article published on 6 August.) In particular, Bogdanor argued that a no-deal Brexit could be blocked by “pass[ing] legislation to extend the exit date”, by “repealing the [European Union] (Notification of Withdrawal) Act [2017]” or — “were an anti-no deal majority or Remain majority returned in [a general election in] November” —  by “legislat[ing] retrospectively, with the agreement of the EU, so as to extend the Brexit date and deem Britain not to have left the EU on 31 October”. In my letter, I take issue with each of those suggestions. I recently wrote a greater length on the capacity of Parliament to prevent a no-deal Brexit — and on the legal implications of possible Government responses to such efforts — in this post.

Sir

Vernon Bogdanor suggests three ways of preventing or reversing a no-deal Brexit (“How the Commons could thwart Boris Johnson’s no-deal Brexit”, 9 August). All of them are legally misconceived. Parliament cannot “pass legislation extending the Brexit date”. The most it can do in this respect is require the Prime Minister to seek an extension. Nor would repealing the European Union (Notification of Withdrawal) Act 2017 have any relevant effect. It authorised the triggering of Article 50, but its repeal would not halt the withdrawal process. Finally, it is suggested that a Remain Parliament elected after 31 October could, with the EU’s agreement, legislate retrospectively to deem the UK never to have withdrawn. But withdrawal occurs by default operation of EU law on Hallowe’en. Domestic legislation cannot alter that, and the EU Treaties provide no legal basis for retrospectively restoring UK membership. If Parliament is serious about preventing a no-deal Brexit, the only legally watertight way of doing so is the enactment of legislation requiring the Prime Minister to revoke the UK’s Article 50 notification.

Yours

Professor Mark Elliott
Professor of Public Law
University of Cambridge