On the legality of amending 29th March as Brexit Day

Thank you to ‘Jean F’ for sending this useful opinion which may help us understand the complexity of the PM’s attempt to change the law over our leaving the EU this Friday. It is offered purely for information purposes only as I’m unable to speak for or endorse its content. It may, however, answer Nicholas comments to NI-Eire P/Update #5:

3 thoughts on “On the legality of amending 29th March as Brexit Day

  1. This is from The House of Commons Library site (https://commonslibrary.parliament.uk/brexit/negotiations/what-is-exit-day-dispelling-misconceptions-about-the-extension-of-article-50/)

    It seems to say that Exit Day can be changed by Statutory Instrument.

    How can “exit day” be changed?
    “Exit day” is defined in primary legislation. Changing it would therefore normally require further primary legislation. However the EU (Withdrawal) Act 2018specifically contemplated the possibility of an extension being sought and granted, and allows exit day’s definition to be changed in those circumstances by secondary legislation.

    Section 20(4) allows a Minister of the Crown to change exit day provided that a draft statutory instrument has been laid before and approved by both the House of Commons and the House of Lords. However, it can only be used:

    “to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom.”

    In practice this means that an extension must first have been agreed to at EU level before any such regulations can be made to change the date. As the Government itself said in a written statement on Friday 15 March:

    “It is expected that the EU will use the March European Council on the 21 and 22 March 2019 to consider and reach a decision on a request from the UK to extend the Article 50 period.

    As soon as possible following agreement at the EU level we will bring forward the necessary legislation to amend the definition of exit day in domestic legislation. This statutory instrument will be laid, before it is made, under section 20(4) of the EU (Withdrawal) Act 2018.

    This legislation is subject to the draft affirmative procedure and so would need to be actively approved in each House. The legislation would give effect to any agreement with the EU on an extension, so would not be laid before Parliament until that agreement had been reached.”

    Graeme Cowie is a Senior Library Clerk at the House of Commons Library, specialising in Brexit.


    • Since noting those details Neil, it gave a good background for appreciating today’s op-ed by Philip Johnston. He answers Kate Hoey’s question ‘does EU law overrule our Parliament?’ as follows:

      “For most Brexit voters this whole business is about sovereignty. At a national level this has been the case since the passage of the European Communities Act 1972, which was to have been repealed on Friday but now won’t be. Its constitutional impact is reflected in that statement from the Prime Minister above. It does not matter what you want; if it conflicts with EU law it can’t be done even if it is decreed by Parliament…As a result of last week’s extension deal, even if Parliament said it wanted the UK to leave on Friday we can’t because the new date supplants the old whatever domestic law says…more people believed the erosion of their nation’s sovereign right to make its own decisions was no longer palatable which is why they want to leave. Yet now they find that the minority insists that its view is the superior one and must take precedence over the scepticism of the majority. By what democratic measure do they consider this to be justified? ” (https://www.telegraph.co.uk/politics/2019/03/26/brexit-hating-minority-determined-impose-views-rest-us/)


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