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:
- Reject the motion (in which case the Bill makes no further relevant provision and the UK will leave the EU on 12 April without a deal unless the Prime Minister obtains an extension to Article 50 otherwise than under the Bill)
- Agree to the notion (in which case the Prime Minister must seek the extension)
- Agree to an amended motion (in which case the Prime Minister must seek to have Article 50 extended to the date set out in the amended motion)
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:
- Refuse the request (in which case the UK will leave
the EU on 12 April without a deal)
- Agree to the request (in which case the Article
50 period will be extended accordingly)
- Make a counterproposal (in which case the Prime
Minister must once again move a motion in the House of Commons and the whole
process starts again)
- Offer to extend Article 50 subject to certain
conditions, e.g. participation in European elections. (The Bill does not make
any provision that anticipates this possibility.)
I offer the following thoughts on the Bill.
No-deal Brexit
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.
Timescale within which extension must be sought
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.
Further motion following counterproposal as to duration of Article 50
extension
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.
Timescale following counterproposal as to duration of Article 50 period
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.
The Prime Minister’s discretion to negotiate
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.
Counterproposal as to a matter other than duration
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.