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

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