Could Article 50 be extended even if a PM refused to agree by 31 October?

By the editor, Jul 12 2019 01:03PM

Assume that Boris Johnson becomes Prime Minister this summer, doesn’t get the deal he wants or can’t get it through Parliament by 31 October, and decides to take the UK out of the EU without a deal.

Assume also that a majority in Parliament continues to oppose a No Deal exit. Mr Johnson has said he hasn’t ruled out the option of ignoring Parliament, and “proroguing” (i.e. suspending) Parliament if necessary to achieve this.

There has been much academic debate about whether a court could and would intervene in these

circumstances. No consensus has emerged. What does seem most likely is that court proceedings would be instigated, and may well be ongoing and potentially unresolved at the crucial time – i.e. 31 October.

It has also been pointed out numerous times that the UK will leave the EU by automatic operation of law at the end of the Article 50 period, deal or no deal, unless another extension is agreed. This has led to the assumption that unless the Prime Minister is persuaded or forced by Parliament or the courts into agreeing a further extension by 31 October, then the UK leaves the EU with no deal the following day.

That may be what would happen, but I think it is worth questioning the assumption before accepting it as necessarily correct.

First it is necessary to consider the attitude of all the other member states. There would need to be unanimous agreement between them that they wanted a further extension, and that of course is not guaranteed. France in particular has indicated it may oppose this, and there are suggestions from elsewhere that it may be better to cut the EU’s losses and stop the issue dragging on. On the other hand, there remain reasons to believe that there would be unanimity, not least because of the position of Ireland, and the implications for the operation of the single market, as well as concern about the potential economic damage, and the pressure brought to bear by some states on others. So it’s not a given, but there’s at least a reasonable chance that there would be unanimity. For present purposes, let’s assume that there would be.

If so then the following scenario emerges:

• a constitutional crisis in the UK, almost certainly involving the judiciary, possibly also the monarchy, and a possible imminent change of Government,

• a PM who refuses to enter an agreement for a further extension,

• a Parliament that wants an extension, and

• all other member states that want an extension.

In such circumstances, the EU would be likely – unless it finally lost patience with us – to want to wait to agree an extension if it possibly can. It obviously can’t agree an extension with the incumbent Prime Minister, because the Prime Minister is determined not to agree one. But if it isn’t clear whether the Prime Minister has the authority to decide whether an agreement should be made – and that issue is being determined in the courts and/or in Parliament – it would be much better, from the EU’s point of view, if the issue of whether an agreement should be reached could be resolved once that constitutional position was resolved, and once it became more likely that an agreement would be reached.

There is nothing I can see in the law governing extensions that requires it to be the Prime Minister who has to agree an extension. Article 50(3) is the relevant provision:

3. 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.

This just refers to “Member State”. It is a matter of constitutional convention in the UK that the Member State in question, the UK, is represented by the Prime Minister. If for example the Prime Minister was incapacitated, no doubt another member of Government could act in his place. That is a constitutional matter for the UK. But of course at this point, there would be a constitutional crisis in the UK, with considerable uncertainty as to whether the Prime Minister was acting lawfully in pursuing a policy that Parliament opposed. From the EU’s perspective, that is a matter for the UK to resolve.

Also, neither Article 50(3) nor the agreement on 10 April to extend to 31 October contain provisions on how a future extension might be agreed. The relevant parts of the Council Decision recording the agreement are as follows:

1. The European Council takes note of the letter of Prime Minister Theresa May of 5 April 2019 asking for a further extension of the period referred to in Article 50(3) TEU.

2. In response, the European Council agrees to an extension to allow for the ratification of the Withdrawal Agreement. Such an extension should last only as long as necessary and, in any event, no longer than 31 October 2019. If the Withdrawal Agreement is ratified by both parties before this date, the withdrawal will take place on the first day of the following month.

The relevant parts of Mrs May’s letter of 5 April state:

I am writing therefore to inform the European Council that the United Kingdom is seeking a further extension to the period provided under Article 50(3) of the Treaty on European Union… . The United Kingdom proposes that this period should end on 30 June 2019.

Of course, on 5 April, the UK’s position was that it wanted an extension to a point earlier than 31 October 2019. But apart from the earlier date Mrs May suggested, the request was only for a “further extension”, and by accepting the date of 31 October without anything further, left open the possibility that extension beyond 31 October might be acceptable. (After all, it seems unlikely that the UK would have refused to agree an extension to, say, 15 November, if that had been the date suggested at the time.)

But the Council Decision, taken together with Mrs May’s letter, don’t contain any provision about how a further extension might be agreed.

Looking back at Article 50(3), an extension does require “agreement” between the UK and all other Member States, and so in simple terms, one might conclude that no agreement could be reached before 31 October if no Prime Minister or other recognised representative of the Member State has agreed to an extension at this point.

However, we may be in a situation where Parliament has clearly expressed its view that it wants an agreement, and there is a constitutional crisis where the lawful authority of the Prime Minister is the subject of court proceedings, and subsequently either the existing Prime Minister is forced to comply with Parliament’s wishes, or a new Prime Minister emerges who wishes to make an agreement anyway, and all Member States would be in a position to reach an agreement to extend, albeit after the 31 October date.

I think there is a reasonable argument that “agreement” under Article 50(3) could be read as including a situation where the Member States agree to extend retrospectively. There is certainly nothing specific that prevents this, even if a natural reading may suggest otherwise. The provision doesn’t say, for example, “… unless the European Council, in agreement with the Member State concerned made before the notification period ends, unanimously decides to extend this period”. The Council Decision similarly doesn’t explicitly prevent this. If necessary, a new Council Decision could be issued on or before 31 October stating that the other Member States had agreed to extend in principle beyond 31 October, pending the resolution of the constitutional issues being clarified in the UK, and if necessary taking the UK’s agreement to a non-limited “further extension” in 5 April into account, as setting out the accepted position of the UK.

There are no doubt strong arguments that can be made against this, in particular based on a natural reading of Article 50(3). But it may be that the rest of the EU would prefer to proceed as indicated above anyway. Even if a court subsequently decided that it was wrong to do so, if an agreement to extend had been reached by that point, it seems unlikely that the effect of such a judgment would be to force the UK into a no deal exit.

Anyway, even if the above analysis is wrong, it would be worth those with relevant expertise setting out why.


UPDATE 7 August 2019.

@AskThePatrick has stated that "EU law allows either the head of state or the head of govt. to be present at the table when the request is made", and cites Article 10 of the TEU in support.

@SpinningHugo has stated that the decision on agreeing an extension must be made "by the PM, whoever that legiitmately is", though cites no law in support of that claim.

The relevant part of Article 10 states as follows: "Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens."

The agreement as to an extension under Article 50(3) is not made in the European Council, or the Council (confusingly different bodies). It is made between the Council on the one hand, and the Member State withdrawing on the other.

Article 10 therefore doesn't itself prescribe who should represent the Member State for the purposes of Article 50(3). But it may give a strong indication that either a representative of the Government or the Head of State (not necessarily the Prime Minister) would be assumed to represent a Member State for these purposes.

The issue of legitimacy may be an important one, though. Where there is a constitutional crisis in the UK, and it is not clear whether the Prime Minister or his Government is lawfully in post, and where there may be an embryonic Government waiting in the wings wishing to extend, supported by Parliament, I think there remains an arguable case that the EU could take the approach suggested above.

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