Showing posts with label extension. Show all posts
Showing posts with label extension. Show all posts

Tuesday, 29 October 2019

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

Tuesday, 22 October 2019

The Withdrawal Agreement Implementation Bill




Professor Steve Peers, University of Essex

After months of anticipation, we finally know the shape of the law which would govern the UK’s ratification of the revised withdrawal agreement: the EU withdrawal agreement bill. (See also the explanatory notes on the bill, and further documents) The government wants this to be fast tracked in a few days, in order to meet its deadline of October 31. This is an absurdly hasty approach to parliamentary scrutiny of a bill which runs to 115 pages, with 40 clauses and six schedules – especially given that the government has in the meantime been compelled to request an extension of EU membership pursuant to the Benn Act (discussed here).  

It’s a complex bill, and this blog post does not aim to be comprehensive: it’s a compilation of selected first impressions (see also my Twitter thread of initial reactions). Since the bill is closely related to the revised withdrawal agreement, my earlier analyses of that agreement (overview; transition period; dispute settlement; and citizens’ rights) may be relevant.   

Approval of the withdrawal agreement

First: the bill switches off both the specific rules for approval of the withdrawal agreement in the EU Withdrawal Act (the so-called ‘meaningful vote’), and the general rules for approval of international treaties in the Constitutional Reform and Governance Act (CRAGA). The effect of this is that as soon as the bill is passed, the government can ratify the withdrawal agreement without holding a further vote.

The transition period

As I noted in my earlier analyses of the revised withdrawal agreement, the agreement in effect creates a deferred no deal outcome – shifted from end October 2019 to end December 2020. That’s because the transition period set up in the agreement (which ensures the continued application of EU law to the UK) ends in December 2020. Note, however, that the provisions in the withdrawal agreement on citizens’ rights, the financial settlement and Northern Ireland will not expire at the end of the transition period. (In fact, for the most part that’s when the provisions on citizens’ rights and Northern Ireland kick in).

The possible deferred no deal outcome in December 2020 is therefore better described as a ‘no trade deal’ outcome. Can it be avoided, in the event that the UK and the EU have not negotiated a further relationship treaty on trade by that time (as seems highly likely)? Yes: it’s possible to extend that period by a period of one or two years, subject to the agreement of both sides in the Joint Committee set up to implement the agreement.

However, the circumstances are somewhat different from the extension of EU membership by the UK. There’s no underlying power to revoke the notification to leave any more. The decision can’t be taken at the last minute, like the membership extension decisions, because the withdrawal agreement requires the transition period extension decision to be taken by 1 July 2020. Moreover, the transition period extension decision requires a difficult negotiation on further UK contributions to the EU budget (the scheduled end-2020 to terminate the transition period coincides with the end of the EU multi-annual budget cycle).

In the bill, Parliament has a role in extension of the transition period. It must approve any government decision to extend it (as agreed with the EU). But there's no power for Parliament to require the government to make a request for an extension – and it’s government policy to leave at the end of 2020. (In the event that an extension is agreed, the bill would give effect to it by secondary legislation, similar to the EU Withdrawal Act provisions on extension of EU membership.) There’s already one proposed amendment by an MP to increase Parliament’s role; it will be important to see if an amendment like this passes.

During the transition period, the European Communities Act, loathed by Eurosceptics because it's the main domestic law basis for EU membership, comes back to life under the bill. The withdrawal agreement says that the UK has to apply new EU measures (other than those covered by UK opt outs) during the transition period, and there's provision in the EU for parliamentary scrutiny of such new EU measures. But needless to say, debating a motion on new EU measures in Westminster will have no impact on the EU side – given that the UK will not have MEPs or ministers at the negotiating table.

As a further measure to pacify Eurosceptics, there’s a parliamentary sovereignty clause. which is presumably intended to assert that Article 4 of the withdrawal agreement, which insists on the supremacy of the agreement in domestic law, doesn't overturn the basic principles of the UK constitution. There’s no small irony here, given that the Eurosceptics in question rejoiced when the government recently unlawfully suspended Parliament. In light of the Eurosceptics’ behaviour, Brexiting for parliamentary sovereignty makes as much sense as dieting for obesity.  

Implementing the withdrawal agreement

There's a general clause giving domestic legal effect to the rest of the withdrawal agreement other than the transition period. This includes the citizens’ rights provisions. I’ll focus on two aspects in more detail: citizens’ rights and workers’ rights.

Citizens’ rights

The citizens’ rights provision of the withdrawal agreement aim to preserve most of the same status that EU27 citizens in the UK, and UK citizens in the EU27, have on the basis of EU free movement law, if they moved before the end of the transition period in the withdrawal agreement. The specific provisions in the main part of the bill set out further powers for the government to implement it as regards: the application deadline for EU27 citizens; frontier workers; restrictions of entry and residence; grounds for deportation; appeals and judicial review; recognition of professional qualifications; social security; non-discrimination; and workers’ rights (in the context of free movement). All of these provisions refer back to the withdrawal agreement; they are not general power to do anything the government likes, even in breach of it.

The clause on the application deadline would be a good place to insert an amendment to ensure that EU citizens are not deported or subjected to any other detriment due purely to missing the deadline. Furthermore the bill should be amended to protect the position of those whom the UK is only protecting on a discretionary basis (for instance, the non-EU family members of UK citizens who return to the UK from an EU Member State, and those who are not working but whom the UK considers do not have ‘comprehensive sickness insurance’ because they rely on the NHS.

In addition, the withdrawal agreement requires the UK to set up an independent monitoring authority for EU27 citizens’ rights. This is established in a schedule to the bill. EU27 citizens can complain to this body about their treatment, and it can launch inquiries or court proceedings as a follow-up. However, it might be questioned whether the body is really independent, given the influence which the Bill gives the Home Secretary over appointments. A better approach would be appointments by an independent body or a parliamentary committee, or perhaps adapting the model for judicial appointments.

Workers’ rights

Some Labour MPs have brought themselves to support the withdrawal agreement based on promises for protection of worker’s rights. How substantial are these – in light of the removal from the withdrawal agreement of the protection for such standards (forming part of the UK-wide customs union backstop) in the earlier version of the agreement?

According to the bill, the government must release a statement as to whether a new bill goes below EU standards on employment law or not. But it can still propose a bill even if it drops below those standards. As for new EU legislation on workers’ rights, the government must report on whether they are higher than UK standards, and if so whether they intend to match them.

This leaves obvious gaps: what about secondary legislation related to workers’ rights? What about gaps between UK courts’ interpretation and the CJEU? And even the core commitments are not very impressive – a sort of Potemkin village of apparently solid promises which are actually empty facades. If Labour MPs fall for this, I have a red flag in Florida I’d like to sell to them.

A more genuine commitment would: rule out reduction of EU standards by means of secondary legislation; require the UK courts to keep to any minimum standard set by the CJEU unless an Act of Parliament requires otherwise, with the power for the courts to go above that standard; and match new EU legislation on workers’ rights unless Parliament votes against it (or at least, leave to Parliament the choice whether to match the new legislation nor not).  

Future relationship

The bill regulates the future relationship between the UK and the EU too. The government's negotiating strategy must be approved by Parliament (it’s not explicit whether Parliament could amend that strategy), and ratification of the resulting treaties must be approved by Parliament, in much the same way as approval of the withdrawal agreement under the EU Withdrawal Act. So we are promised more ‘meaningful votes’ in future – assuming that there are any treaties with the EU to approve.

But there’s a catch: any negotiating guidelines have to be ‘consistent with the political declaration’ on the future relationship, which suggests that this non-binding agreement between the UK and the EU attains a sort of binding effect in domestic law. But this declaration rules certain things out, such as a customs union or single market relationship. So, to paraphrase Henry Ford, the government is telling Parliament that it can vote for any negotiation strategy it likes – as long as it’s blue.

We can expect amendments to the bill on this issue, including on the question of a customs union. It has been argued that the opposition parties who want a different relationship with the EU should just roll over on this point and wait to win an election. But we had an election in 2017 – in which the future relationship with the EU was an issue. Those who voted for the opposition parties then voted for manifestos promising to support a close relationship with the EU; so why shouldn’t the opposition parties try to amend the bill to give effect to these preferences? After all, the government chose to hold an early election on the issue of Brexit, and lost its majority.

This goes back to underlying themes in the Brexit debate. Supporters of the government’s notion of One True Brexit gloss over that at various times this One True Brexit – which ‘everyone knew they were voting for’ – has constituted the first withdrawal agreement, the revised withdrawal agreement, and no deal at all. The government blames its likely inability to achieve its Brexit objectives by the end of October on judges judging, Remainers moaning, Parliament legislating, and the EU parking the bus in the Irish Sea. But at the root here is voters voting: depriving the government of its majority in an election in which they were asked about Brexit policy.  

Barnard & Peers: chapter 27

Tuesday, 17 September 2019

Third Time Lucky? The new law on extension of UK membership of the EU




Professor Steve Peers, University of Essex

Introduction

One of the many recent controversies about the Brexit process has been about the ‘Benn-Burt bill’, a new Act of Parliament that was fast-tracked through the legislative process earlier in September against the government’s wishes. It requires the Prime Minister to request a further extension of the UK’s EU membership; he has said that he will not do so. Some believe (wrongly) that the new law bans a ‘no deal’ exit from the EU.

To explain and analyse the new law, given the broad public interest, this blog post takes a question and answer format. At the end, there’s a longer discussion of the linked question of whether the UK would have to nominate a new European Commissioner in the event of an extension of EU membership.  

Q             Does the bill ban a no-deal outcome?

A             No. Its main purpose is to provide for the possibility of a further extension of EU membership. However, to avoid a no deal outcome it is necessary at some point – whether before Oct 31 or at a later date if membership is extended – to either ratify a withdrawal agreement or revoke the notification to leave the EU. The new law makes no mention of revoking that notification, and although it refers expressly to the possibility of parliament voting again on whether to accept a withdrawal agreement, it does not require Parliament to accept an agreement (or even to vote on whether to accept one).  It also provides for the possibility of parliament voting to accept no deal – although this seems unlikely given that Parliament passed this Act with the express intention of avoiding an imminent no deal outcome.  

Q             Does the new law block Brexit?

A             No.  As noted already, it provides expressly for the possibility of Parliament voting again on whether to accept a withdrawal agreement, or Parliament voting to accept no deal. Both of them are forms of Brexit. Also as noted already, it does not refer in any way to the revocation of the notification to leave. Nor does it refer to another referendum on whether to leave. Although some supporters of the bill support another referendum, the bill itself is silent on this. Extending EU membership to another date still leaves intact the possibility of leaving on that date with no deal (as the default position), or leaving at that date or earlier if a withdrawal agreement is ratified.

Q             Does Boris Johnson have to request an extension of EU membership?

A             In principle, yes (if he’s still the Prime Minister). He must request an extension to January 31 2020. However, there are exceptions. If Parliament votes for a withdrawal agreement or for a no deal no later than 19 October, then the obligation to request extension is never triggered. If Parliament votes for either before 30 October, then the obligation to request extension ceases to apply: the Prime Minister in that case ‘may modify or withdraw the request’.

It seems unlikely that Parliament would vote for no deal (given that the new law was backed by opponents of this outcome), but what about a withdrawal agreement? Here’s there’s an apparent loophole, as pointed out by Jolyon Maugham: it’s possible that Parliament could vote in principle to approve a withdrawal agreement, thus disabling the obligation to request an extension, but then not pass further measures in time for the agreement to be fully ratified by October 31. (See further Maugham’s analysis of the limited time available to pass the further measures).

According to the ‘Kinnock amendment’ added to the Act, the request has to be for the purpose of passing a bill to implement the withdrawal agreement, including provisions giving effect to inter-party talks, particularly possible amendments to the political declaration on the EU/UK future relationship (discussed here).  However, this is not reflected in the letter of request which the Prime Minister must send (the letter is a Schedule to the new law), and does not impact upon the separate obligation to accept (subject to an unrelated exception) an extension decision if the EU adopts one. There’s no explicit obligation to hold a vote on a withdrawal agreement, or to publish and/or vote on a bill to implement that agreement.

Q             Does the EU have to extend membership?

A             No. That’s up to the political discretion of the EU. It must act to adopt an extension decision with the unanimous vote of the 27 Member States’ heads of State and government (not including the UK). (I commented earlier on the legal issues of the first extension decision and the second extension decision.) It remains to be seen what the EU will do; remember that rumours about Member States vetoing extension proved to be unfounded in spring.  The European Commission and European Parliament have no formal role in the extension decision, although they can express a point of view that might influence national leaders.

Q             Does Boris Johnson have to accept an extension of EU membership, if the EU adopts one?

A             Yes, subject to a veto by Parliament. If the extension is to the date of January 31, the Prime Minister must accept it. Otherwise it’s possible for Parliament to veto it. It’s therefore false to claim, as some did, that the UK will be obliged to accept any extension decision, no matter what (see further my Prospect article on this point).

Some have argued that Johnson could veto the extension decision as a member of the European Council. This is false: Article 50(4) says that only the remaining Member States vote on this issue. The UK’s role comes at the stage of accepting that decision or not; and the new law specifically regulates that issue.

What if the EU sets conditions for extension? The CJEU has established in its Wightman judgment that the current status of a Member State cannot change during any extension; demanding that a Member State gives up its opt outs, etc would violate that principle.

There is a complicated question of the UK appointing a European Commissioner, which would conversely arguably be simply a matter of complying with its existing obligations as a Member State. I discuss this further below.

In the event that a modest extension goes ahead before the next election, this would shoot the fox of those arguing that the new law could mean the ‘imposition’ of a potentially indefinite or very lengthy extension, since it would be obvious that this had not taken place in practice.

Q             Would national law have to be changed to give effect to the extension of EU membership?

A             Yes.  The new law obliges this to take place automatically. The recent ‘commencement order’ setting the date of Brexit of October 31 would equally be delayed coming into force, as Professor Mark Elliott has explained.

Q             What else happens if an extension decision is adopted?

A             The UK will leave the EU on the new date without a deal, unless a further extension is granted, or it ratifies a withdrawal agreement, or it revokes the notification to leave the EU. It could also leave the EU beforehand if it ratifies a withdrawal agreement. Furthermore, some believe that the departure date can or must be brought forward to an earlier date if the UK requests it, but this interpretation is disputed. Note that, according to the Wightman judgment, the UK can revoke its notification to leave unilaterally, so cannot be subject to conditions like giving up opt-outs in return for staying.

The new law is silent on any of these further developments, including any further extension request. However, it does state that if an extension (presumably of any length) is granted, then the government must publish a report by 30 November 2019 on the progress of negotiations on the UK’s relationship with the EU. It must also table a motion in the Commons and the Lords about the report. If that motion is amended or rejected, the government must publish a further report by 10 January 2020 with a plan for further such negotiations. In any event, the government must make a further report on the progress of negotiations every 28 days starting on 7 February 2020 unless an agreement with the EU is reached or the House of Commons passes a resolution otherwise.

Politically, of course, developments in the period after an extension might be affected by a general election and/or a possible change of government.

Q             What if Boris Johnson refuses to comply with the law?

A             Politically, there might be challenges in Parliament. However, attempting to change the government in a short space of time might be legally and politically difficult. So might a further attempt by Parliament to pass another law circumventing the Prime Minister’s refusal to act. If the Supreme Court accepts that there are no judicial limits on the prorogation of Parliament, the government might advise the Queen to prorogue it again, which would cut off any attempts at legislation or confidence votes.

Legally, the possibility of non-compliance has already been brought before the Scottish courts, in a pending case.  It remains to be seen what remedies courts might be willing to order in order to enforce the law. Interim measures might be made in the event that the clock runs out before any appeals can be heard and/or decided.

Some have argued that the new law is illegal, because it infringes too much upon the executive’s power over international relations. If such an argument is raised in litigation, it would remain to be seen if a court accepts it; but the advocates of this view have not pointed to any precedents in which a court struck down an Act of Parliament on such grounds.

Q             Does the Act violate EU law?

A             No. This is an incredibly weak legal argument. Article 50 says nothing about a request for an extension, and therefore nothing about how a request must be made. It does refer to the withdrawing Member State accepting a request, but says nothing about how that process of acceptance takes place. It refers to national constitutional requirements determining whether a notification of leaving the EU is sent, but does not define what those requirements are. In the Shindler case (discussed here), the EU courts have said that it’s up to the UK’s legal and political system to define what these requirements are, and whether they have been met.

However, it’s possible that the EU might have legal or political doubts about considering a request for extension that is not from the Prime Minister in person. This remains to be seen.

Q             Does the UK have to appoint a European Commissioner?

A             It’s complicated. Article 17 TEU says that there shall be Commissioners equal to 2/3 of the number of Member States, but the European Council can change this number. It did so in 2013, with a decision that says that the number of Commissioners is equal to the number of Member States. The preamble refers to the Commission having ‘one national of each Member State’. Article 17 says that Commissioners must be appointed ‘on the basis of the suggestions made by Member States’.
At the time of the second extension, it was debated whether the UK would have to hold elections to the European Parliament. It was decided that it would, since the usual obligations of membership continued to apply. Logically the same applies to another extension of membership as regards the Commission.

There are several legal issues and possibilities though. EU law does not expressly state that a Member State must nominate a Commissioner, although arguably that is an implicit obligation. This could be enforced by legal proceedings, which could in principle be fast-tracked. The EU might be willing to approve an extension without a nomination (although that might be legally challenged), or to overlook the absence of a nomination if the extension is short. On previous occasions, the appointment of a new Commission has been delayed for a few months or weeks for various reasons. It is not clear whether or not the actions of a Commissioner lacking in numbers would be legal or not; but the new Commission could hold off from making proposals until the status of the UK was clearer. Most obviously, the European Council could amend the law so that only 27 Commissioners need to be appointed (that requires a unanimous vote, including the UK, although there can be extensions).

The notion of appointing a Commission with two Commissioners from another Member State might be challenged in light of the preamble to the decision on the number of Commissioners, which (as noted above) refers to one national of each Member State. Another notion of appointing a British Commissioner whom the government did not suggest might be legally problematic, due to the reference in the Treaty to making appointments based on ‘suggestions’ from Member States. Politically, either of those two outcomes might backfire politically on Remain advocates, for obvious reasons.

Analogies with non-replacement of retiring Commissioners on previous occasions don’t work, because the Treaties have an explicit procedure for non-replacement in those cases, and this is distinct from appointment of a new Commission.

It would remain to be seen how the EU might try to address these issues in the event that it wishes to adopt an extension decision and the UK is unwilling to suggest a nominee for the new Commission. Politically, the refusal to nominate a Commissioner might be intended to deter the EU from offering an extension decision in the first place. Time will tell whether it becomes an issue in practice.

Barnard & Peers: chapter 27
Photo credit: Anadoku agency

Wednesday, 10 April 2019

Trick or Treaty? The legal issues of the second extension of the UK’s EU membership



Professor Steve Peers, University of Essex

With the second Brexit day deadline of April 12 only two days away, last night leaders of EU Member States, meeting as the European Council, decided to grant the UK a second extension of its EU membership, possibly up to Halloween this year. The key provisions in the formal decision extending membership for the second time provide that:

Article 1

The period provided for in Article 50(3) TEU, as extended by the [first extension decision], is hereby further extended until 31 October 2019.

Article 2

This decision shall enter into force on the day of its adoption. 

This decision shall cease to apply on 31 May 2019 in the event that the United Kingdom has not held elections to the European Parliament in accordance with applicable Union law and has not ratified the Withdrawal Agreement by 22 May 2019.

The preamble to the decision also notes that if the withdrawal agreement is ratified, Brexit day could be earlier. More precisely: ‘the withdrawal should take place on the first day of the month following the completion of the ratification procedures or on 1 November 2019, whichever is the earliest’. Also, the preamble calls for a review in June, but doesn’t provide for the possibility of cutting the extension short at that point.

The date of 31 October was not chosen for its scary implications as such: it’s the last day in office of the current European Commission, although this point isn’t explicitly made in the European Council decision. Ending the UK’s membership therefore avoids a UK Commissioner taking office (and so also avoids the awkward question of whether the number of Commissioners should be reduced to prevent this happening).

This fresh extension followed from the previous European Council decision extending membership after the original Brexit Day of March 29, which I previously discussed in detail here (see also the relevant conclusions of the European Council, adopted on March 21). This blog post examines the details and legal issues arising from the second extension, adapting some of the points already made in the previous blog post on the first extension where relevant.

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). (In the event, as with the first extension decision it seems that neither was necessary). The Member State concerned has to agree to the text of the relevant European Council decision, and the UK indeed agreed to the second extension decision, as it had agreed to the first one. 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 and UK assume that this is legally possible.

The first extension decision 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 proposed withdrawal agreement by that date. If that had happened, UK membership would have been extended until 22 May 2019. Since it did not happen, the second variation applied: membership was extended for only two weeks to 12 April 2019, and the UK had to ‘indicate a way forward before 12 April 2019, for consideration by the European Council’.

The two dates referred to were linked to the upcoming elections for the European Parliament, on May 23-26, as noted in the preamble to the first extension decision. This is because 22 May is the last day before the elections, and 12 April is the last day to give notice of the poll in the UK. There was a legal debate over whether the UK could be exempted from taking part in these elections (for details, see my blog post on the first extension), on which the EU has taken the view that there cannot be an exception. The second extension decision takes the same approach, forcing an early end to the UK’s EU membership on 31 May if the UK has neither held the European Parliament elections on time, nor ratified the withdrawal agreement by 22 May. However, it should be noted that, as discussed below, the UK has taken the legal steps to hold the elections.

This obligation to hold the elections is a specific application of the general rule: as the preamble to the decision on the second extension confirms that, as in the first extension, the UK has the same rights and responsibilities as it would ordinarily have as a Member State otherwise. Indeed, the preamble explicitly observes that the UK can revoke its notification of intention to leave the EU unilaterally (see the CJEU’s Wightman judgment). This continues the principle established in two earlier CJEU rulings (discussed here and here), in which the Court confirmed that the UK remained a fully-fledged Member State throughout the main two-year period after notifying its intention to leave the EU. In other words: Membership means Membership.

However, the preamble to the second extension decision conversely rows back on this somewhat, in that it also refers to the principle of ‘sincere cooperation’ applicable to all Member States, by virtue of Article 4 TEU. But the wording suggests that this principle might apply differently as regards a withdrawing Member State. More precisely, the preamble states that (emphases added):

The European Council takes note of 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. To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and shall refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union.

So the EU says that the UK must be a full Member State for the purposes of the European Parliament elections, but not exactly a full Member State for some other purposes. If only there were a fruit-based or dessert-based analogy to describe this approach.

However, there’s no precise legal obligation attached to the reference to sincere cooperation clause. And what exactly could the UK do to obstruct the business of the EU anyway?  First of all, let’s look at the EU institutions. Member States do not have a veto on the major appointments to the EU institutions to be made later this year: Mr Juncker became Commission President despite the UK’s opposition (joined by Hungary), and Mr Tusk was re-elected as European Council President despite the opposition of Poland.  There’s no veto on appointing the rest of the Commission this autumn either, although Member States do act unanimously when appointing CJEU judges or renewing their terms. As regards the Commission in particular, the implications aren’t fully fleshed out: the UK and UK MEPs will still presumably have a vote for the new Commission, since those votes would normally take place before November 1, but would it follow that also the UK should nominate a Commissioner who might not even take office?

Could the UK obstruct the functioning of those institutions? First, although this is not mentioned in the extension decision, the European Council conclusions note that the EU27 can meet informally without the UK:

the 27 Member States and the Commission, where appropriate together with other institutions, bodies, offices and agencies of the Union, will continue to meet separately at all levels to discuss matters related to the situation after the withdrawal of the United Kingdom

This suggests an informal arrangement, where the EU27 might agree in principle on future developments which will apply after Brexit day, with any legal texts to be adopted officially once the UK has left.

Secondly, it should be noted that the EU institutions do less work than usual between May and October of an election year (ie the term of most of the extension decision), since the European Parliament (EP) focusses on the elections and their aftermath and the outgoing Commission is winding its activities up. But there are some activities. However, the Commission, EP and CJEU do not act by unanimous vote, and the EU institutions’ rules of procedure don’t provide for filibustering (ie discussing an issue endlessly to stop debate). Nigel Farage rarely shows up for long enough to filibuster anyway.

The possibility for obstruction exists more in the Council (made up of ministers) and the European Council (made up of Presidents and Prime Ministers). The Council usually (but not always) decides by qualified majority voting (QMV), while the opposite is true of the European Council.  For QMV, the UK vote has to count in some way (except where the UK opts out), and asking the UK to abstain accomplishes nothing, since UK abstentions would in effect count as a vote against. However, it’s rare that so many Member States oppose a proposal that the UK has the swing vote (for a current example, see the controversial copyright directive, which the UK could block if it abstained or voted against).

The UK could, of course, block everything where it has a veto.  This particularly applies to taxation, accession to the EU, Treaty amendment, foreign and defence policy, and major decisions on the budget. But budget decisions are due to be agreed next year, after the second extension decision will run its course, and applicant Member States are all a long way from joining the EU. While the UK could block steps in the ongoing accession negotiations (like opening or closing ‘chapters’ in the negotiations), the EU27 and the applicant State (like the EU27 internally) might simply decide agree in principle on those steps while awaiting Brexit day.

As regards Treaty amendments, there are no discussions of amendments underway or planned imminently. The UK can’t block any amendment process getting started, but its agreement would be necessary for any Treaty amendments to come into force. If there were interest from other Member States in such negotiations, the UK could abstain from the discussions, and ratification of any agreed text could get underway in the EU27, with the proviso that the process could only be completed on or after Brexit Day.

It’s also possible to use simplified procedures to amend certain parts of the Treaties, but any significant Treaty change by such simplified means still requires unanimity of Member States. Unlike fully-fledged Treaty amendments, simplified Treaty amendments are a live issue. The Commission has proposed extending QMV on aspects of foreign policy, as well as on taxation in general and energy and environmental taxes in particular. (Update: the Commission also proposed to drop unanimity for aspects of employment law on April 16th). The environmental tax paper also suggests giving the European Parliament more powers as regards EU law on nuclear energy, but this requires an ordinary Treaty amendment (which the Commission suggests should happen after 2025). Again, the UK could block these proposals as long as it’s a Member State, while the EU27 could agree on them (if they are interested) in principle pending Brexit day, and adopt them after that.

UK legal issues

The UK gave effect to the first extension as a matter of UK law by means of a Statutory Instrument, in accordance with s 20 of the EU Withdrawal Act 2018, which sets out a process to change ‘exit day’. Some have queried the legality of this process, and there’s a pending court case challenging the first extension (although see the counter-argument by Professor Mark Elliott).

Since the first extension was granted, as noted already, the House of Commons voted down the withdrawal agreement a third time. But there have been other legal developments. The Commons made two attempts to hold ‘indicative votes’ to find a Brexit outcome that would command majority support – but no outcome did. Since the Commons had also indicated its opposition to leaving the EU without a deal, the government changed its strategy of trying to pass the withdrawal agreement with Conservative and Democratic Unionist Party votes.

Instead, as the Prime Minister announced on 2 April, she would instead hold discussions with the Labour party, with a view to amending the declaration on the future relationship with the EU.  She would also seek a short second extension of membership from the EU, while planning to table the bill to implement the withdrawal agreement with a view to ratifying it by 22 May, thus avoiding taking part in European Parliament elections. To that end, on April 5 the government sent a request to the EU for an extension until June 30. Since it is possible that European Parliament elections might have to be held, the government also adopted the order which is legally necessary to hold them on May 23.

Furthermore, Parliament decided to take control of the legislative agenda from the executive temporarily and quickly pass a new law, the EU Withdrawal Act 2019. Among other things, it requires the government to seek an extension of membership from the EU, and on that basis, the Commons approved the government’s motion to set June 30 as the intended date. It also simplifies the process of approving another change to ‘exit day’ in UK law, which will be relevant imminently when giving effect to the second extension decision in UK law. (Update: the secondary legislation changing the exit day to October 31 has since been adopted,) While the passage of the Act attracted controversy, ultimately the outcome differs little from the government’s policy. I’ll leave it to political commentators to discuss the broader political impact of the Act. It should be noted that despite the passage of the Act, one MP, Bill Cash, has queried the legality of a second extension. With respect, his arguments about the frustration of the intent of Parliament ignore the 2019 Act as well as the prospect of extension of membership set out in the 2018 Act. But it would not be surprising to see these arguments litigated.

Finally, it’s useful to consider the second extension decision in its political context, although only a brave observer could argue they know what will happen in UK politics in the near future with any certainty.  An extension to October leaves just enough time for a referendum, and lots of time for a general election. It also leaves enough time for a Conservative party leadership contest, although a new Prime Minister would, without an election, face the same arithmetic in the House of Commons, regardless of their Brexit views. While the Conservative party formally cannot challenge its leader before December, it may try to find a way to do so indirectly. The results of local elections at the start of May and (if held) European Parliament elections at the end of May might alter the political dynamics. A new Queen’s Speech is due in June, which will entail the Conservative party renegotiating its confidence and supply arrangement with the DUP, as well as yet another opportunity to submit the withdrawal agreement to the vote. The delay to Brexit might provide the opportunity to pass further Brexit-related legislation, as well as conclude some ‘rollover’ treaties with non-EU countries.

As for the impact on EU/UK relations, while the second extension decision reiterates that the EU is not willing to reopen talks on the withdrawal agreement, and furthermore states that the extension period should not be used to negotiate the future relationship as such, the European Council conclusions expressly state a willingness to renegotiate the non-binding political declaration on that relationship. Renegotiating the latter depends on successful conclusions of talks between the Conservative and Labour parties, which many believe is an unlikely prospect. A general election might change the situation, but the government is not keen on one. There might remain a lack of a parliamentary majority for anything else (simple revocation, no deal, another referendum) if there’s no election. Time will tell if the UK can find any way out of the current Brexit deadlock.

Photo credit: bored panda
Barnard & Peers: chapter 27


Thursday, 21 March 2019

Brexit and Extending EU Membership: The Legal Issues




Professor Steve Peers, University of Essex*

*This blog post was updated following the approval of the official decision extending EU membership

As the Brexit day deadline of March 29th loomed without approval of the proposed withdrawal agreement, the European Council meeting agreed conclusions offering an extension of UK membership of the EU on March 21st. The formal decision on extension was then adopted on March 22nd, after the UK agreed to it. What are the legal issues concerning the extension of EU membership?

EU law issues

The extension decision states that:

In the event that the Withdrawal Agreement is approved by the House of Commons by 29 March 2019 at the latest, the period provided for in Article 50(3) TEU is extended until 22 May 2019.

In the event that the Withdrawal Agreement is not approved by the House of Commons by 29 March 2019 at the latest, the period provided for in Article 50(3) TEU is extended until 12 April 2019. In that event, the United Kingdom will indicate a way forward before 12 April 2019, for consideration by the European Council

If the House of Commons approves the withdrawal agreement next week, there's an extension to 22 May to sort out the details (notably the Act of Parliament necessary to implement the withdrawal agreement). If the agreement is not approved next week, there's a shorter extension to 12 April, and the UK will indicate what it sees as the way forward before this date.

The starting point for legal discussion of this issue 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. (emphasis added)

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). (In the event, it seems that neither was necessary). It logically follows that the Member State concerned has to agree to the text of the relevant European Council decision, in particular as regards the length of extension - which is what happened in practice. There’s no formal role for the European Parliament or national parliaments, but it's possible that their expressions of opinion had some influence. Article 50(3) is silent on whether or not there can be multiple extensions.

During the extension, the UK has the same rights and responsibilities as it would ordinarily have as a Member State otherwise, including the continuing right to revoke its notification of intention to leave the EU unilaterally (see the CJEU’s Wightman judgment; the general point is confirmed by preamble clause 10). This follows on from two earlier CJEU rulings (discussed here and here), in which the Court confirmed that the UK remained a fully-fledged Member State throughout the main two-year period after notifying its intention to leave the EU. In other words: Membership means Membership. (This rule doesn’t prevent political conditions being attached to the EU’s decision to agree to an extension though, such as those in the decision). Those who claimed that the EU would demand vast sums or abolition of opt outs as a condition of extension of membership were incorrect. 

This general rule raises a specific issue relevant to extension of the UK’s EU membership. Would the UK have to hold European Parliament elections, set for May 23-26? (The date is based on the basic law on EP elections, since amended in 2018 on other points).  The answer would obviously be no, if the extension did not go past May 22. Arguably the answer would still be no if the extension went no further than June 30 – as requested by the Prime Minister – because the new European Parliament would only take office after that point. However, this is disputed (see the recent EU room document on extension, Wednesday’s Commission paper, and the contrasting views of Professors Barnard and Weatherill, Professor Spaventa and the UK’s CJEU Advocate-General Eleanor Sharpston). Ultimately the European Council took the view that membership after May 22 does require holding EP elections, and noted that April 12 would be the last date on which the UK could decide to hold them, explaining why these dates appear in the decision (see clause 10 in the preamble).

In the event of extension after June 30, the UK would certainly be in breach of its obligation to hold EP elections, unless a special exception was granted to it. This is because the Treaties refer to election for five-year terms, and a Council decision (see link above) sets out the election dates. Both the Treaties and the basic law on EP elections need unanimous national ratification to amend them. Article 50 does not refer to granting exceptions from EU law, except as regards the departing Member State’s absence from discussions concerning its departure. While new Member States do have temporary exceptions from the obligation to elect MEPs, they are covered by a different legal framework: Article 49 TEU, which deals with accession, expressly allows for “adjustments” to the EU Treaties. As noted above, tonight’s conclusions make no specific mention of the elections issue (it appeared in an earlier draft, but was dropped).

Would the EP (and the new Commission which the EP has a big role in appointing) be acting illegally, if the UK had not elected MEPs in time? The EU courts have answered a similar question before, as regards the Santer Commission which resigned irregularly and was not immediately replaced. In the British Airways judgment, it was held that the Commission’s actions adopted during this period were not illegal.  There was also a brief period when the Commission’s status was uncertain, as the Lisbon Treaty came into force a month after a new Commission (with fewer Commissioners) was due to be appointed in 2009. In practice, the new Commission was appointed after a short delay, with the old Commissioners spending a short extra period in their jobs.

If the UK held EP elections in (say) September, there could be a delay in appointing a new Commission or adopting new EU legislation until then. (A new EP takes a while to have a big role in adopting legislation anyway, since a lot of proposed legislation is wrapped up before the outgoing EP dissolves for elections).  There might, however, be some complication as regards the number of MEPs per Member State (see the relevant European Council decision).

UK legal issues

In order to change ‘exit day’ as far as Westminster legislation is concerned, it’s necessary to adopt secondary legislation – a statutory instrument approved by Parliament – under s 20 of the EU Withdrawal Act. It’s been suggested that a Statutory Instrument could be tabled next week. (The UK doesn’t need to adopt a new law to hold EP elections, since the repeal of the legislation concerned has not been commenced yet). In the event that an extension decision is adopted, but the definition of ‘exit day’ has not changed in the UK, it’s been argued that this does not mean that the UK leaves the EU with no deal, but rather that it stays in the EU with no domestic legal framework to give effect to EU law (although it might be possible to fix this quickly). (Updated March 24th: see also Professor Mark Elliott's post on this issue, and the reply of Brexit minister Lord Callanan).

Apart from the legal issues directly related to the extension, next week is likely to see a number of crucial votes relating to the UK’s imminent and future relationship with the EU. Time will tell what indirect effect they may have on the length and circumstances of the UK’s extended EU membership – and in particular whether the UK government and parliament is able to agree upon a way forward in the event that the withdrawal agreement is not approved.

Barnard & Peers: chapter 27
Photo credit: archdaily.com