Professor Mark Elliott
The House of Lords is today considering the Cooper-Letwin Bill — or, to give it its formal title, the European Union (Withdrawal) (No 5) Bill — which would enable the […]
The House of Lords is today considering the Cooper-Letwin Bill — or, to give it its formal title, the European Union (Withdrawal) (No 5) Bill — which would enable the House of Commons to impose certain statutory duties on the Prime Minister in connection with the extension of the Article 50 period. The Bill requires the Prime Minister to move a motion in the House of Commons in terms that it agrees that she should seek an extension of Article 50 to a date specified in the motion, that date being at the discretion of the Prime Minister. The House of Commons then has three options:
If the motion is agreed (amended or not) then, when the Prime Minister seeks an extension, the European Council might to one of four things:
I offer the following thoughts on the Bill.
The Bill does not guarantee against a no-deal Brexit. A no-deal Brexit would occur in spite of the Bill in either of least two scenarios.
First, if the European Council were to refuse to offer an extension to the Article 50 period, such a situation would not be governed by any provisions set out in the Bill: that is, the Bill would not impose any duties upon the Prime Minister, or make any relevant further provision, in such circumstances. This means, for example, that if the Prime Minister were to request an extension and if the European Council were to turn down that request, it would not contravene any provision of the Bill if the Prime Minister were to take no further steps. In that event, the UK would leave the EU on 12 April on a no-deal basis.
Second, the process of seeking an extension might be ongoing — as a matter of domestic law — at 11.00 pm on 12 April. The Bill does not anticipate this possibility and thus makes no provision as to what should happen in such circumstances. Correspondingly, if the process set in motion by the Bill was still ongoing (as a matter of domestic law) at 11.00 pm on 12 April, the UK would, in spite of that, leave the EU on a no-deal basis.
The Bill is clear that the Prime Minister must move a motion the day after the Bill receives Royal Assent. However, it is silent as to the subsequent timescale. If a motion under the Bill were to be agreed by the House of Commons, the Bill makes no provision as to the timescale within which the Prime Minister would be required to act upon it. The Bill could, for instance, have specified that the Prime Minister’s request must be submitted to the European Council in advance of its next meeting or within a given number of days. It is unfortunate that the Bill is silent on this point.
If the Prime Minster were to be required to request an extension to the Article 50 period, and if, in response, the European Council were to make a counterproposal as to the duration of any such extension, the Bill would require the Prime Minister to move a further motion in the House of Commons. That further motion would be in terms of the House of Commons agreeing to the Prime Minister seeking an extension of the Article 50 period to the date specified in the motion. As in the case of the first motion moved under the Bill, the date specified in a second (or subsequent) motion would be at the Prime Minister’s discretion. In particular, the Bill does not require a second (or subsequent) motion moved in response to a European Council counterproposal to specify the date contained in the counterproposal.
This means that it would be possible for the Prime Minister to return to the House of Commons and to move a motion specifying a date at odds with the European Council’s counterproposal. The date specified by the Prime Minister in the motion could, for instance, be the date specified in her original motion under the Bill or could be another date that differed from that contained in the European Council’s counterproposal. Like the first motion moved under the Bill, a subsequent motion moved in response to a counterproposal could be amended by the House of Commons. This means that if, in a second or subsequent motion, the Prime Minister were to specify a date that did not align with a European Council counterproposal, the House of Commons could amend the motion so as to align it with such a counterproposal. Equally, however, the House of Commons could amend a second or subsequent motion so as to specify a date that differed from that contained in a European Council counterproposal, even were the Prime Minister to recommend acceptance of this date, possibly pursuant to understandings she had reached with the European Council.
The possibility thus arises of the Bill operating so as to require the Prime Minister to make repeated requests to the European Council that do not align with the revised departure date preferred by and set out in the counterproposals of the European Council. Indeed, under the Bill, there is no limit on the number of times that the Prime Minister could be required to make a request following a European Council counterproposal.
The possibility, identified in the previous section, of multiple requests as to the extension of Article 50 in response to counterproposals made by the European Council is one that would arise under domestic law as set out in the Bill. However, the implications of the Bill must also be considered with regard to the position in EU law. As a matter of EU law, the UK will, by default, leave the EU on a no-deal basis on at 11.00 pm on 12 April unless (i) an extension to the Article 50 period is agreed, (ii) the UK revokes the notification of its intention to withdraw from the EU before 11.00 pm on 12 April or (iii) the Withdrawal Agreement has entered into force by that time. The default of a no-deal departure arises by operation of EU law: specifically, Article 50(3) of the Treaty on European Union read with the decision of the European Council to extend the Article 50 period to 12 April 2019.
Against this background, it is important to consider how the scheme set out by the Bill would relate to the timescale for the UK’s departure from the EU as determined by EU law. At present, it is anticipated that an emergency meeting of the European Council will take place on 10 April. If the Prime Minister were required under the Bill to request an Article 50 extension at that meeting of the European Council, and if the European Council were to make a counterproposal as to the duration of any such extension, the Bill would require the Prime Minister to move a further motion in Parliament the day after the European Council meeting, i.e. 11 April. The House of Commons would presumably consider the motion the same day. If the House of Commons were to agree such a motion (with or without amendment) on 11 April, the Prime Minister would then be under a statutory duty to seek an extension of the Article 50 period to the date set out in the motion.
However, as noted above, the Bill makes no provision about the timescale within which the Prime Minister must seek an extension to the Article 50 period following the House of Commons’ agreement of a motion under the Bill. The Prime Minister would not therefore be in breach of any express provision of the Bill if she were to neglect to seek an extension prior to 11.00 pm on 12 April, at which point the UK would leave the EU on a no-deal basis. There would then be no possibility in EU law of seeking an extension to the Article 50 period, since that period would have expired and would therefore be incapable of extension.
It is entirely possible that a court would interpret the Bill as implicitly requiring the Prime Minister to seek an extension of the Article 50 period promptly following the agreement of a motion by the House of Commons, and that a court may find the Prime Minister to have acted unlawfully by frustrating a purpose of the Bill if she were to delay seeking an extension until after the UK had left the EU. However, any such court proceedings would almost certainly take place after the UK had left the EU, and it is surprising that these matters are not addressed explicitly in the Bill.
If the Prime Minister did act promptly, and, following a motion agreed by the House of Commons on 11 April, sought an extension on 11 or 12 April, a further practical difficulty might arise. The European Council meets relatively infrequently, and it is to be assumed that its emergency meeting on 10 April will last for only one day. It is unlikely that the European Council, if it were to make a counterproposal on 10 April, would remain in session until 11.00 pm on 12 April in case the Prime Minister were to be required by the House of Commons to return to the European Council to seek an extension to the date set out in the counterproposal or to some other date. If the House of Commons were to agree a second motion under the Bill requiring the Prime Minister to seek an extension to the date set out in the European Council’s counterproposal, this would not be problematic, since there would presumably already be a draft Decision of the European Council that could be adopted without a physical meeting of the Council. If, however, the House of Commons were to agree a second motion requiring the Prime Minister to seek an extension to a date different from that set out in the European Council’s counterproposal, it is unclear what scope there would be in practice for the European Council to consider and potentially agree to such a request.
A further issue raised by the Bill concerns the relationship between the process set out in it and the discretion that the Prime Minister would otherwise have to negotiate with the European Council as to the duration of any extension to the Article 50 period. If, for instance, at its meeting on 10 April the European Council were to indicate to the Prime Minister that it would be willing to agree to extend the Article 50 period to a date different from that which the Prime Minister had been required by the House of Commons to seek, the Bill envisages that the Prime Minister would take any such counterproposal back to the House of Commons. However, in the absence of this Bill, the Prime Minister would have discretion to negotiate at the European Council, under the Government’s prerogative power to conduct foreign relations, and potentially to agree to an Article 50 extension to a date different from that which she had originally sought.
Although legal opinion is somewhat divided, the better view, in my opinion, is that it was under the prerogative that the Prime Minister was capable of negotiating and agreeing to the extension of the Article 50 period to 12 April. The Bill does not, of course, extinguish the foreign relations prerogative under which the original Article 50 extension was agreed by the Prime Minister. However, it does direct the Prime Minister as to its use. In particular, it places the Prime Minister under a legal duty to take a counterproposal back to the House of Commons; as such, it would clearly frustrate one of the purposes of the Bill if the Prime Minister were to render such a process moot by unilaterally agreeing to a counterproposal. It follows that the Bill would displace the discretionary power that the Prime Minister would otherwise have to negotiate in response to a counterproposal at the meeting of the European Council on 10 April. It would not be open to her to agree to such a proposal that day: instead, she would have to bring any such counterproposal back to the House of Commons.
Instead of (or as well as) making a counterproposal as to the duration of the Article 50 period, the European Council might make a counterproposal in respect of other matters. The European Council might, for instance, agree to extend Article 50 in line with the Prime Minister’s request but only subject to certain conditions (e.g. that the UK agrees to participate in the forthcoming elections to the European Parliament). While the Bill anticipates and makes provision in respect of the possibility of a counterproposal as to the duration of an Article 50 extension, it does not anticipate or make provision as to any other form of counterproposal.
It follows from the analysis set out above that since the Bill makes no provision in this regard, the Prime Minister’s discretion to negotiate in relation to, and reach agreement with the European Council on, such matters would be undisturbed by the Bill. This means, for example, that if the European Council were to agree to an extension to the date the House of Commons mandated the Prime Minister to request, but attached a condition as to participation in elections to the European Parliament, the Prime Minister would have discretion as to whether to agree to such a condition. In such circumstances, the Prime Minister could, for instance, decide that the UK should not agree to participate in elections to the European Parliament and that the European Council’s offer to extend Article 50 should therefore be rejected by the UK.
This follows for a combination of two reasons. First, the Bill would not circumscribe the Prime Minister’s legal capacity to negotiate on and make decisions about such matters, given that it does not make provision as to counterproposals concerning matters other than the duration of an Article 50 extension. Second, the Bill would not place the Prime Minister under any legal duty to accept an offer made by the European Council to extend the Article 50 period in such circumstances. Even if it could be argued that the Bill would place the Prime Minister under an implied obligation to accept an unconditional offer to extend Article 50 to the requested date, it cannot be the case that the Bill impliedly requires the Prime Minister to accept a conditional offer, since that would have the absurd consequence of enabling the European Council to, in effect, impose any condition whatever upon the UK, however unreasonable. It is unfortunate that the Bill does not anticipate and address the (likely) possibility of counterproposals made by the European Council in respect of matters other than the duration of any Article 50 extension.
I am grateful to Robert Craig and Gavin Phillipson for discussion of some of the points considered in this post. The usual disclaimer applies.
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