Brexit looks to be currently at stalemate in the UK. As at the morning of Monday 21 October 2019, I have tried to lay out the perspective of the EU Council if it aims to follow, in spirit, Article 50 of the Treaty of the European Union. That is, aiming at leaving aside any political biases that the EU or myself may have on the issue.
After the Government pulled a meaningful vote on the revised political declaration on Saturday they will try again for a meaningful vote today. Following the inability to get the deal passed, on Saturday evening Prime Minister Boris Johnson sent the letter requesting an extention of the Article 50, as required by the the Benn Act. It was a photocopy and unsigned. This can be found on the government website page Letters from the UK to the EU Council: 19 October 2019. Boris Johnson also sent a signed letter to Donald Tusk to be found on the government website page Prime Minister’s letter to President Donald Tusk: 19 October 2019.
The Formal Letter is as follows
Dear Mr President,
The UK Parliament has passed the European Union (Withdrawal) (No. 2) Act 2019. Its provisions now require Her Majesty’s Government to seek an extension of the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty, currently due to expire at 11.00pm GMT on 31 October 2019, until 11.00pm GMT on 31 January 2020.
I am writing therefore to inform the European Council that the United Kingdom is seeking a further extension to the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty. The United Kingdom proposes that this period should end at 11.00pm GMT on 31 January 2020. If the parties are able to ratify before this date, the Government proposes that the period should be terminated early.
Yours sincerely,
Prime Minister of the United Kingdom of Great Britain and Northern Ireland
This letter provides no reason for extending the Article 50(3) period. The Prime Minister’s letter provides context for at least withholding the decision on the extension. With a deal between the EU and the UK not actually put to a vote by the UK parliament, there is clearly no reason for granting of an extension. Indeed, granting an extension before that deal is decided would likely ensure that the deal is voted down. Refusal to grant an extension would see the EU effectively ejecting a member state with no deal, something that neither the EU, nor a majority in the UK parliament desire.
The EU council are bound by Article 50. I covered legal analysis of Article 50 by the High Court of Justice in Northern Ireland last month. Like the judicial ruling I quoted Article 50 in full. The legal analysis was
Certain aspects of Article 50 did not fall to be construed in either Miller or Wightman. Bearing in mind that the exercise is one of construing a measure of EU law, I consider that those aspects of Article 50 not addressed in either Miller or Wightman yield the following construction:
(i) First, there is no concept, meaning or definition of “negotiate” supporting the view that the clause beginning “… the Union shall negotiate … ” denotes a duty and exercise unilateral in nature. It takes two to tango. The concept of negotiation must surely be, depending on its context, something bilateral or multilateral in nature. This discrete element of Article 50(2) would be emptied of meaning and rendered nugatory if it is not to be construed thus.
(ii) There is no legal context known to this court which dictates that negotiations must culminate in a legally binding agreement between the negotiating parties. There is nothing in the text of Article 50 which displaces this proposition. Nor is there any identifiable basis or rationale for implying any different or contrary
construction.
(iii) Article 50(2) clearly establishes an imperative, namely a negotiated and concluded withdrawal agreement, without purporting to mandate that this occur.
(iv) Article 50(3) expressly contemplates the possibility that the negotiations required by Article 50(2) will not culminate in a withdrawal agreement.
(v) The plain aim of the two year period specified in Article 50(3) is the promotion of stability and certainty in the EU.
(vi) The provision made in Article 50(3) for consensual extension of the basic two year period is plainly designed to further the overarching imperative of a negotiated and concluded withdrawal agreement.
Note that this analysis was upon matters raised by those wanting the judicial review, so may not be comprehensive for the current purposes.
Point (i) clearly states that two parties must negotiate. In the current circumstances who negotiates with the EU Council? The Benn Act coerces the Prime Minister to act against his clearly stated will. So you have parliament saying one thing and the recognised Prime Minister saying another. By “recognised” I mean by, parliament, the Queen as Head of State, and the EU Council, in its negotiations with the UK last week. Parliament has had opportunities to constitutionally remove the Boris Johnson as Prime Minister. They twice failed to vote for a general election at the start of September. Also the leader of the opposition has had numerous opportunities to table a vote of no confidence and then try to form a coalition government. In my view, Article 51 of the Vienna Convention on the Law of Treaties (1969) may have some relevance.
Clearly the Prime Minister is not concluding a Treaty under the letter he was coerced into sending, just requesting an extension or a negotiating perios . However, it would be highly embarrassing for the EU Council to assent to an extension in the full knowledge that it against the will of the person who they have recognised as the UK’s representative.
Point (ii) states that reaching a withdrawal agreement might not be possible, whilst point (iii) states that it is a clear imperative. It is this context that the EU Council ought to withhold any decision on extension until it is clear that the agreed deal will not pass. Doing so would undermine their own efforts to reach a deal.
Point (iv) refers to Article 50(3) as having an imperative, namely a negotiated withdrawal agreement. Point (vi) makes clear this is the overarching imperative of any extension. If it is clear that any deal will not pass then there is no justification for extending the Article 50 period beyond the 31 October Point (v) is the plain aim of two year period for leaving – and by implication any extensions – is for the promotion of stability and certainty in the EU . Clearly the current situation is causing considerable instabilities and uncertainties is both the UK and the EU as a whole. Perhaps another incentive not to extend is the term office of Presidents Juncker and Tusk end on 31 October. Personally they will not want to leave the issue of Brexit still unresolved.
If parliament rejects the current deal, why should the EU Council extend? The possible position of the EU is to express clear exasperation with the UK, and make clear an extension will be contingent on the UK being in a position to make clear decisions by a stipulated date. That would imply the UK holding a general election at the earliest opportunity that will result in a clear position on Brexit. That is to leave, with or without a deal, or to revoke Article 50. It would mean that the EU has to agree with Nigel Farage, and it could see the resignation of Boris Johnson who whose main aim is to see Britain leave at the end of the month “do or die”. Whether he resigns or not, the Conservatives would likely drop in the opinion polls, which might see another hung parliament. The Labour Party would need to campaign on a clear position, as if they win on current policies, they would not comply. The alternative of a second referendum with only two options of “leave with the current deal” and “revoke Article 50” would not carry legitimacy unless there was some clause to allow for people who want neither option. For instance it could be that the result would only recognised if it by a clear majority of the ballot papers counted.
If parliament remains in its current state, it is clearly in the interests of the EU not to extend, to ensure that there is minimum continued disruption to the EU from Brexit. It is also clear that in preventing any possible disruption from a no-deal Brexit it will have the fullest cooperation from the current UK Executive.
ManicBeancounter 