Mrs May is using her powers to frustrate Parliament. Legally, this is beyond the pale

After hours of discussions with QCs and former judges, I believe the British Government’s extension of Article 50 is unlawful. It is a fundamental principle of UK constitutional law that the Government may not use its powers, including its powers to make international agreements, to frustrate the intention of Parliament. Parliament’s intention is to be found, and is only to be found, in the laws it makes. Resolutions of the House of Commons may sometimes be politically important, but they are of no legal effect unless an Act of Parliament expressly gives them legal effect.

The intention of Parliament is, and remains still, that the UK must leave the EU. This is clear from the legislation to trigger Article 50 (the EU Notification of Withdrawal Act 2017), in which Parliament referred to and declared “the United Kingdom’s intention to withdraw from the EU”. The EU Withdrawal Act 2018 gives effect to the decision to withdraw by repeatedly referring to “exit day”. The Withdrawal Act expressly states: “The European Communities Act 1972 is repealed on exit day”. Parliament originally set that day precisely at March 29 2019, but the Government has purported to extend this by statutory instruments. These can be challenged in the courts.

It is essential to note that Parliament’s legal intention for the UK to leave the EU is not conditional upon a withdrawal agreement. While

many MPs have said that they do not want the UK to leave without a withdrawal agreement, and the House of Commons has passed a resolution stating this, the law of the United Kingdom is not affected by their protestations. Our law is simply that the UK must leave the EU.

It follows that when the Prime Minister exercised her power to act for the UK at the EU Council, she was obliged under our law to refrain from doing anything that would frustrate the intention of Parliament that the UK must leave the EU with or without a withdrawal agreement.

These are manifest limitations on the Prime Minister’s competence. They concern rules of UK internal constitutional law of fundamental importance. In these circumstances, I believe that it would be impossible for the Prime Minister, acting lawfully under UK law, to accept an extension of the kind proposed. When I called on her to resign last week in the House of Commons, I reminded her that she had promised over 100 times not to extend exit day.

For the Prime Minister to agree to such an extension in these circumstances is to knowingly use her power in a way that she herself believes would risk frustrating Parliament’s intention that the UK must leave the EU. This is legally beyond the pale.

It is quite obvious from her letter to Donald Tusk of April 5 2019 that the Prime Minister has absolutely no plan regarding the purpose of any extension, other than a hope that some consensus may finally be reached in the Commons or by a Faustian pact with Jeremy Corbyn. This is no reasonable basis for agreeing to an extension that would frustrate the

at telegraph.co.uk/ opinion fulfilment of Parliament’s intention by extending exit day to Hallowe’en this year. This outrageous proposal, adding insult to injury with the trick or treat of EU-imposed conditions, provides no proper basis requiring the UK to submit.

The Government’s use of its powers – including the so-called prerogative under which international relations are conducted – can be challenged in the UK courts, as Gina Miller successfully did in the Supreme Court. A challenge in the courts is fully justified in respect of the purported extension of time.

We have been told by the Prime Minister that “we will not have truly left the European Union if we are not in control of our own laws”. The repeal of the European Communities Act 1972 achieves that control as the law of the land. The Withdrawal Agreement drives a coach and horses through the constitutional status of Northern Ireland and undermines the repeal of that 1972 Act.

This is a political betrayal of the referendum vote in June 2016. That vote was expressly given by Parliament under the Referendum Act 2015 to the people and became the law of the land. It cannot be taken back by mere resolutions of the Commons nor by unlawful statutory instruments. Indeed, on Friday evening, five minutes before the deadline on the statutory instrument for the regulations to confer the extension to October

31, I tabled a block against the regulations which continues until the House returns.

Sir Bill Cash MP is chairman of the European Scrutiny Committee and former shadow Attorney General

Incredibly, HS2 has run like a constant through a political system otherwise in ferment. First proposed under Gordon Brown, it survived the toppling of his wasteful government, was embraced by Osborne and Cameron, has shrugged off criticism of its obscene cost (now £56 billion officially, but ultimately likely to be £100 billion), and still has the support of the Government and Labour.

It is apparently too big to cancel: a monument to the risks of cross-party consensus, and of letting politicians indulge their fantasies of “guiding” the economy using taxpayers’ money. Our leaders have too much at stake to change tack now, hence their lack of shame at the nebulous and ever-shifting case for spending such vast sums on this white elephant.

Thank goodness, then, for Liz Truss. The Chief Secretary to the Treasury said in an interview with the Spectator last week that HS2 will feature in the “zero-based capital review” the Government will shortly conduct, and will be assessed for value for money. Let us hope that rigorous cost-benefit analysis will reveal (again) that the billions would be better spent on regional rail, roads or tax cuts. But would even that be enough to kill this scheme? Remember that Theresa May announced a review of the similarly wasteful nuclear power project, Hinkley Point, when she first became prime minister. It is still going ahead.

HS2 cannot be separated from the

The referendum vote was expressly given by Parliament to the people and became the law of the land. It cannot be taken back by mere resolutions of the Commons

HS2 will be assessed for value for money. Let us hope that rigorous cost-benefit analysis will reveal (again) that the billions would be better spent on regional rail, roads or tax cuts

at telegraph.co.uk/ opinion failed politics that spawned it. So long as parties persist in the delusion that they can engineer a top-down reorganisation of the economy, predict the technological future, tax people off the road to get them on to public transport, and take their core supporters for granted as they drive a whopping great rail line through some of the most beautiful parts of England, we will be stuck with it.

At some point after the fall of Mrs Thatcher, Conservative Party politicians lost confidence in her vision of democratic capitalism. They started plundering other traditions: continental Christian democracy; French-style bureaucratic control; and, ludicrously, happiness “economics”. They wanted Britain to be more regionally balanced like Germany, and to mimic China in the ambition of its state-directed investments.

Never mind that the UK has its own peculiar strengths, or that the British state clearly lacks the capabilities of Beijing’s central planners (not least in being constrained by democracy). Politics became a game of triangulation, “mastered” by George Osborne under the Coalition, and taxpayers’ money became a political tool, in this instance for winning the endorsement of Labour councillors in the North (northern voters, incidentally, aren’t that keen on HS2).

The only chance we have of seeing this terrible scheme scrapped is a new Tory leader committed to abandoning the Coalition’s toxic legacy and recommitting to a conservatism that sees more virtue in liberating people and enterprise to rise on their own merits than in self-important grands projets. You never know, it might just be more popular than HS2.