Public Law for Everyone

Earlier today, the Prime Minister wrote to the President of the European Council requesting a further extension of the Article 50 period to 30 June 2019. Meanwhile, the Cooper-Letwin Bill (which I examine in detail in this post) has completed all its stages in the House of Commons and has received its second reading in the House of Lords. It could complete its passage through Parliament on Monday. The obvious question arises: does the request made by the Prime Minister today, prior to the enactment of the Cooper-Letwin legislation, scupper that Bill? In particular, does it mean that the Prime Minister has managed to circumvent it by getting her request in prior to the Bill’s enactment? The answer, in my view, is no.

Let us assume, for the sake of argument, that the Cooper-Letwin Bill receives Royal Assent on Monday 8 April. The effect of that would be that the House of Commons would have to be given the opportunity the following day, Tuesday 9 April, to instruct the Prime Minister to seek an Article 50 extension to a date of the Commons’ choosing. If the House of Commons did that, then the Prime Minister would be under a statutory duty to ask for an extension to the date specified by the House of Commons. The fact that the Prime Minister has already made a request for an extension does not change this: the Bill, as currently drafted, would still enable the Commons to require the Prime Minister to seek an extension of the Article 50 period to its preferred date.

The possibility thus arises of the House of Commons, next Tuesday, legally requiring the Prime Minister to ask for an extension of Article 50 to a date different from 30 June 2019 (the date that she has asked for today). For instance, the House of Commons might decide that it wants a longer extension, e.g. to the end of 2019 or even 2020. Two conflicting requests to the European Council could therefore be in play: the request made to extend to 30 June 2019 by the Prime Minister (‘the Prime Minister’s request’) and the request that the Prime Minister is instructed to make by the House of Commons (‘Parliament’s request’). What would the legal position be in these circumstances?

Assuming that the European Council would not formally consider and respond to either request until its emergency meeting scheduled for Wednesday 12 April, the Council could be faced with two different requests made by the Prime Minister: one at her own initiative, the other on Parliament’s instructions. The Cooper-Letwin Bill does not, of course, determine what the European Council could lawfully do in such circumstances. But it does, in my view, impact on what the Prime Minister could do in respect of the European Council’s response to those requests.

Let us consider three possibilities. First, the European Council might say ‘no’ to both requests and decide that it is unprepared to offer any further extension of the Article 50 period. In legal terms, the upshot of this would be straightforward: in the absence of the European Council’s willingness to agree a further extension, the UK would by default leave the EU on 12 April on a no-deal basis. The only alternative at that point would be revocation of Article 50. But that would be difficult: the better view is that the revocation of Article 50 would be possible only if authorised by legislation, and there would be very little time indeed to enact such legislation.

Second, the European Council might agree to Parliament’s request. In those circumstances, it seems to me to be at least arguable that the Prime Minister would be under a legal duty to accept that request. Clause 1(4) of the Cooper-Letwin Bill clearly imposes a legal duty on the Prime Minister to seek an extension to the date determined by the House of Commons. The Bill is silent as to what the Prime Minister must do (if anything) if the European Council accedes to such a request. However, it is arguable that the purpose of the Bill is not merely to require the Prime Minister to ask for an extension to the date determined by the House of Commons, but to accept such an extension if offered it. After all, what would be the point of the Bill imposing a legal duty on the Prime Minister to seek such an extension if she were then free to decline it in the event that it was offered? It would be better if the Bill made this point explicitly clear, but an implied obligation upon the Prime Minister to accept an offer to accede to Parliament’s request is certainly arguable.

Third, the European Council might agree to the Prime Minister’s request. This is where things become particularly murky. The Prime Minister’s request has been made prior to the enactment of the Cooper-Letwin Bill. There was therefore nothing legally improper in that request, the Prime Minister currently having prerogative power to seek an extension of the Article 50 period (or, as some have argued, an implied statutory power to do so). Might it be argued that, having made her request under the prerogative, the Prime Minister correspondingly has prerogative power to accept an affirmative European Council offer made in response to that request? The answer to that question, in my view, is ‘no’, provided that by the time of the European Council meeting the Prime Minster has been legally required under the Cooper-Letwin Bill to make a further (conflicting) request under it.

The reason lies in clause 1(6) and (7). Clause 1(6) sets out a trigger condition which, if satisfied, activates a statutory duty set out in clause 1(7). The trigger condition is that the European Council proposes an extension of the Article 50 process ‘to a period ending other than on the date proposed in the resolution arising from the motion in the form set out in subsection (2) for the purposes of subsection (1)’. This means that the clause 1(6) trigger condition would be satisfied if the European Council were to make any offer to extend Article 50 to date other than that set out in Parliament’s request. The fact that the European Council’s offer happened to coincide with the (different) date set out in the Prime Minister’s request would not prevent clause 1(6) from being satisfied. In those circumstances, the clause 1(7) duty would be activated, thereby obliging the Prime Minister, the day after the European Council meeting, to return to the House of Commons and to put back to it the question of the duration of any Article 50 extension. It would then be open to the House of Commons to send the Prime Minister back to Brussels, insisting that she sought an extension to its preferred date (although whether, by then, it would be practically feasible to reopen the matter with the European Council is debateable: a point I canvass in this post). On this analysis, it would not be open to the Prime Minister to bypass Parliament’s request by accepting an offer by the European Council to accede to her own request.

The position would be different if the Cooper-Letwin Bill included a provision concerning the maintenance of the Prime Minister’s prerogative powers, along the lines of a clause contained in a precursor Bill that was not enacted. It is possible that the Cooper-Letwin Bill may be amended along those lines by the House of Lords. However, as the Bill presently stands, the request submitted by the Prime Minister today does not prevent the Bill from operating as intended.  

I am very grateful to Jack Williams of Monckton Chambers for discussion of the issues raised by this post and for his comments on an earlier draft. The usual disclaimer applies.