Tel. +44 (0)20 7287 4414
Tel. +44 (0)20 7287 4414
The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.
The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.

Bruges Group Blog

Spearheading the intellectual battle against the EU. And for new thinking in international affairs.

The Loopholes of the Surrender Act

As I assume you know, the Benn Act, or more commonly known as the Surrender Act, isn't the most well thought out piece of legislation, as lined out by Chair of Lawyers for Britain Martin Howe QC at The Bruges Group 'Moment of Truth' event in Manchester during Conservative Party conference. This article will outline the loopholes that Boris Johnson, Dominic Cummings and the team of Number 10 advisers and strategists will aim to exploit to ensure we leave the EU on October 31st, deal or no deal. 

1) "The Prime Minister is not 'Her Majesty's Government'. He is 'primus inter pares' and there is cabinet government."

"Note that the case in the Scottish Court to compel compliance with the Act were against the Prime Minister personally but that significantly the plaintiffs went to great lengths to persuade the court to widen its application to the government as a whole. So far, they have failed"

The PM is being asked to say HMG's policy is X even if it is in fact Y.

2) "If Parliament agrees to leaving with no deal then the Prime Minister doesn't have to send the letter detailed in Section 4 of the Act. Now by the sheer fact that we signed up to the Lisbon Treaty, we agreed to Article 50. By enacting Article 50 Parliament accepted the terms of Article 50. Article 50 states we will leave without a deal if no deal has been agreed. THAT is an acceptance already by Parliament under EU law that it has accepted that we will be leaving with No Deal if an agreement hasn't been met."

3a) In the famous 'Gay Cake' (2018) Supreme Court ruling, following a dispute over a cake request in a Belfast bakery, Lady Hale declared: "Nobody should be forced to have or express a political opinion in which he does not believe."

b) Article 51 Vienna Convention - a coerced signature cannot be valid.

4) "The Benn Act [effectively] requires the Prime Minister to agree the extension offered... As LSE's Robert Craig explains... 'negotiations and agreement of a new exit date were without doubt exercises of prerogative power and any Bill that sought to regulate or supplant those aspects of securing an extension would certainly have required Queen's Consent during the passage of the Bill'. "

5) Unable to comply: "It is by no means clear how the government could comply with [The Surrender Act], especially given the Kinnock amendment incorporated into it."

Boris might also look at Supreme Court judgements purporting to curtail the Royal Prerogative and decide the Court have validated Robin Tilbrook's legal arguments (or Sir William Cash or Barry Legg's cases) and that we have already left. So Boris is unable to comply.

6) As a last ditch measure in late October, use Henry VIII powers to suspend The Surrender Act "schedule 7(5) of the EU Withdrawal Act allows ministers to introduce regulations that have immediate effect to deal with 'urgent deficiencies'. Again, the definition of 'urgent' is not defined. Ostensibly, the government having to ask for an extension to Article 50 on October 19th which would alter the October 31st 'exit day' – thereby arguably creating a deficiency in UK law – is an 'urgent' issue. The government could use this power to introduce a regulation to amend or completely abolish the Benn Act. Critically, this 'urgent' regulation would have immediate effect for 28 days, meaning the UK would have exited the EU be time it expired. Parliament would find it very difficult to prevent its application."

There certainly seems good reason for Spartans to resist this new WA-with-lipstick.

We would like to think that Boris can play his hand to his advantage and eventually secure Great Britain's departure from the European Union on 31st October 2019, against the relentless Remoaner MPs in the House of Commons such as the so called Liberal Democrats, the vast majority of the Labour Party as well of course, Sir Oliver Letwin, the everpresent resident Brexit thwarter, along with the actual leader of the opposition Mr Speaker who seems to have seized control whether we like it or not, to push his agenda. 

Please like our Facebook page 'The Bruges Group', follow us on Twitter @BrugesGroup and on Instagram @thebrugesgroup

Font size: +

Contact us

Director : Robert Oulds
Tel: 020 7287 4414
Chairman: Barry Legg
The Bruges Group
246 Linen Hall, 162-168 Regent Street
London W1B 5TB
United Kingdom
Founder President :
The Rt Hon. the Baroness Thatcher of Kesteven LG, OM, FRS 
Vice-President : The Rt Hon. the Lord Lamont of Lerwick,
Chairman: Barry Legg
Director : Robert Oulds MA, FRSA
Washington D.C. Representative : John O'Sullivan CBE
Founder Chairman : Lord Harris of High Cross
Head of Media: Jack Soames