Life’s a ditch – and then you lie: the third extension of EU membership

Professor Steve Peers, University of Essex

This was the extension that was never meant to happen. Despite the Benn Act (discussed here), requiring the Prime Minister to request a three-month extension of EU membership if a withdrawal agreement was not approved by Parliament by October 19, the Prime Minister said he would “die in a ditch” before he did so. Spurred on by mysterious Downing Street sources, there was endless talk that the Benn Act was unconstitutional, full of loopholes, would be overridden by emergency powers, or violated EU law. Flexing his Hulky legal biceps, Boris Johnson would slay the puny Benn Act with one titanic sunlit spaff. 

Legal commentators queried these claims, but many political journalists (with honourable exceptions) ignored them: what did mere legal commentators know, compared to huge-brained political advisors without any legal background, fresh from an 11-0 Supreme Court defeat? Failing that, some seemed certain that an extension (needing unanimous consent of EU Member States) would be vetoed: the Poles would drown it in vodka; Orban would poison it with goulash; Macron would guillotine it with a single arrogant Gallic shrug.

And yet we have an extension. As Johnson’s hero might say: never in the course of British political history have so many political journalists swallowed so much rancid legal bullshit fed to them by so few dodgy political advisors.

EU law issues

The starting point for discussing extensions of membership is Article 50(3) TEU, which provides, as regards a Member State withdrawing from the EU:

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

Unanimity can still apply despite abstentions (Article 235 TFEU), and the European Council can, if necessary, act by written procedure (see its Rules of Procedure), as it did in this case. The Member State concerned has to agree to the text of the relevant European Council decision, which was regulated by UK law (see below). There’s no formal role for the European Parliament or national parliaments. Article 50(3) is silent on whether or not there can be multiple extensions, but obviously the EU assumes that this is legally possible.

The first extension decision (discussed here) provided for two variations for extending membership beyond the original Brexit Day of 29 March 2019, depending on whether the House of Commons approved the first version of the withdrawal agreement by that date. Since it did not do so, the first extension lasted until 12 April 2019. The second extension decision (discussed here) lasted until 31 October, provided that the UK held European Parliament elections in May (which it did), although it would have ended earlier if the UK had approved a withdrawal agreement (which it didn’t).

The third extension decision simply provides for what Parliament asked for: a three month extension. The only further detail in the main text is that it mentions earlier Brexit dates, in the event that the withdrawal agreement is ratified earlier.

The preamble to this decision also refers (recital 11) to the regular functioning of the EU, including an obligation of the UK to appoint a Commissioner. This recital also notes that EU law continues to apply more generally to the UK during an extension, and observes that the UK can withdraw its notice of intention to leave the EU. There’s also a general reminder of the EU law principle of ‘sincere cooperation’, and a specific version of that for a withdrawing Member State:

The European Council recalls the commitment by the United Kingdom to act in a constructive and responsible manner throughout the extension period in accordance with the duty of sincere cooperation, and expects the United Kingdom to fulfil this commitment and Treaty obligation in a manner that reflects its situation as a withdrawing Member State.  

All of this also appeared in the preamble to the second extension decision, except the reference to appointment of a Commissioner, which was not an imminent issue at that time.

Recital 9 in the preamble refers to facilitating ratification of the withdrawal agreement, but other extension decisions referred to this too. Recital 12 notes that appointments made by the UK cease on Brexit day, but this simply restates the consequences of withdrawal (as the second extension decision noted already). Recital 13 states that the withdrawal agreement cannot be reopened – but then the second extension decision said the same thing, and the EU nevertheless agreed to renegotiate. This recital also says, like the second extension decision, that this is not an opportunity to start negotiating the future relationship. It also provides, as with the previous extension, that ‘[a]ny unilateral commitment, statement or other act by the United Kingdom should be compatible with the letter and the spirit of the Withdrawal Agreement, and must not hamper its implementation.’ One novel point, though: recital 8 notes that there’s discussion of a possible election in the UK.

There’s also a parallel declaration by the European Council, but it simply rehashes the preamble of the extension decision.

UK law

As noted above, the Benn Act required the Prime Minister to apply for an extension of three months if no withdrawal agreement was approved by October 19. He duly did so (albeit without signature, and in conjunction with other letters: the EU ignored this), after parliament voted to defer consideration of the revised withdrawal agreement (discussed here) in order to spend more time considering the proposed withdrawal agreement bill (discussed here). Although the Benn Act permits the Prime Minister to withdraw or amend the request if a withdrawal agreement is approved after October 19, the Speaker of the House of Commons ruled that a fresh attempt to vote on the withdrawal agreement was inadmissible, and Parliament later voted not to consider the bill over only a handful of days, making the October 31 deadline unfeasible – although the bill itself has passed second reading).

The Benn Act also required the Prime Minister to accept an extension decision once the EU adopted it, although if the date differed from three months then it was possible that Parliament could vote down the decision. To this end, the Prime Minister has accepted the EU decision. UK law is automatically updated to change the definition of ‘exit day’, according to another provision of the Act. (Update, October 30: the relevant secondary legislation to change 'exit day' has now been adopted.)

Due to doubts about the Prime Minister’s willingness to give effect to his obligations under the Act, two separate legal challenges were brought seeking its enforcement. In Scotland, the first instance court ruled that the challenge was premature, although on appeal the judges decided to hold the challenge in limbo to see if the Prime Minister would send an extension request if required, and subsequently to keep the challenge in limbo to see if he accepted an extension decision. In England, the High Court decided that the action was premature, and the Court of Appeal agreed. In separate proceedings, a challenge to bringing the revised withdrawal agreement before Parliament (on the grounds that the customs arrangements in the revised agreements breached previous legislation) was unsuccessful.

Comments

The reference to early termination dates if the withdrawal agreement is ratified simply states the law. As noted in the preamble to this extension decision (recital 10), this is inherent in the text of Article 50(3), as set out above, given that the agreement itself comes into force either on the first day of the month after both sides ratify it, or another date as specified in an extension decision. But there’s no other date set in this extension decision.

As for unilateral revocation of the notification of the intention to leave the EU unilaterally, this simply follows CJEU case law (see the Wightman judgment). Similarly, the point about the UK retaining obligations as a Member State reiterates a principle established in two earlier CJEU rulings (discussed here and here), and also noted in Wightman as regards extensions.

As for the appointment of a Commissioner, this is less urgent than it would have been since the new Commission is delayed taking office on the usual date (November 1) for unrelated reasons. I discussed the legal issues further in an earlier blog post on the Benn Act, but it’s striking that the third extension decision does not make appointment of a Commissioner a condition of granting the extension – unlike the second extension decision, which was dependent on the UK holding elections to the European Parliament.  Equally, while the preamble to the latest decision mentions the possibility of elections in the UK, the extension is not dependent upon them (although that prospect may have tipped the balance in convincing the French government to support a longer extension).

Ultimately it seems likely at time of writing that the UK’s relationship with the EU will be decided by a December election: a choice between the withdrawal agreement (the Conservative party), a no deal outcome (Brexit party), revocation of the notification (the Liberal Democrats), renegotiation followed by a referendum with an option to remain (Labour), or rejection of Brexit plus support for Scottish independence (the SNP), among other parties. A renegotiation and referendum would necessarily require a further extension; the other scenarios would not. So the next word falls to the public. We’ll see if this is decisive one way or the other.

Barnard & Peers: chapter 27

Photo credit: Indiana Watershed Initiative, via Wikicommons