Professor Steve Peers, University of Essex
This extension was unexpected. Despite the Benn Act, which mandated the Prime Minister to request a three-month extension for EU membership if Parliament failed to approve a withdrawal agreement by October 19, the Prime Minister insisted he would rather resign than comply. Fueled by ambiguous sources within Downing Street, there was persistent speculation that the Benn Act was unconstitutional, riddled with loopholes, would be superseded by emergency powers, or violated EU law. It was suggested that Boris Johnson, with his legal prowess, would effortlessly dismantle the Benn Act.
While legal experts questioned these assertions, many political journalists (with notable exceptions) disregarded them, seemingly valuing the opinions of politically-minded advisors with no legal experience over those with actual legal expertise. There was also a belief that an extension, requiring unanimous agreement from EU Member States, would be vetoed by countries like Poland, Hungary, or France.
However, an extension prevailed. This demonstrates a significant disconnect between the legal realities and the political narratives surrounding the situation, particularly among political journalists.
EU law issues
Article 50(3) TEU governs extensions of EU membership during a Member State’s withdrawal process. It states that treaties cease to apply to the withdrawing state either on the effective date of the withdrawal agreement or two years after the withdrawal notification, unless the European Council unanimously decides to extend the period with the agreement of the withdrawing state. Unanimity remains valid despite abstentions, and the European Council can choose to act through written procedure if needed. The withdrawing state must consent to the wording of the European Council decision, a process governed by UK law. Neither the European Parliament nor national parliaments have a formal role in this process. While Article 50(3) does not specify whether multiple extensions are allowed, the EU clearly operates under the assumption that they are legally permissible.
The initial extension decision outlined two scenarios for extending membership beyond the original Brexit date of March 29, 2019, contingent on whether the House of Commons approved the initial withdrawal agreement. The first extension, lasting until April 12, 2019, was implemented because the agreement was not approved. The subsequent extension, lasting until October 31, was contingent upon the UK holding European Parliament elections in May (which it did). It could have ended sooner had the UK ratified a withdrawal agreement, which did not occur.
The third extension decision simply grants Parliament’s request for a three-month extension. The only additional detail in the main text is the mention of earlier Brexit dates if the withdrawal agreement is ratified ahead of time.
The preamble of this decision highlights the EU’s need for operational stability, including the UK’s obligation to appoint a Commissioner. It reiterates that EU law remains applicable to the UK during an extension and acknowledges the UK’s right to retract its withdrawal notice. The principle of ‘sincere cooperation’ within EU law is emphasized, particularly for a withdrawing Member State. This expectation for a constructive and responsible approach from the UK, reflecting its status as a withdrawing member, is underscored.
These points were also present in the second extension decision’s preamble, except for the mention of appointing a Commissioner, which wasn’t immediately relevant then.
While recital 9 in the preamble mentions facilitating the withdrawal agreement’s ratification, this was also referenced in previous extension decisions. Recital 12, stating that UK appointments end on Brexit day, merely reiterates a known consequence of withdrawal, as previously noted in the second extension decision. Although recital 13 states that the withdrawal agreement cannot be reopened, a similar statement in the second extension decision did not prevent subsequent renegotiations. This recital also reiterates, as in the previous extension, that this is not an occasion to initiate negotiations on the future relationship and that any unilateral commitment, statement, or action by the UK should respect the spirit and letter of the Withdrawal Agreement. Notably, recital 8 acknowledges the discussions regarding a potential election in the UK.
A corresponding European Council declaration reiterates the extension decision’s preamble.
UK law
As previously stated, the Benn Act obligated the Prime Minister to request a three-month extension if no withdrawal agreement was approved by October 19. He complied (though without a signature and accompanied by other letters, which the EU disregarded) after Parliament chose to postpone consideration of the revised withdrawal agreement to allow for more time to scrutinize the proposed withdrawal agreement bill. This made the October 31 deadline unattainable. Although the Benn Act allows the Prime Minister to retract or modify the request if a withdrawal agreement is approved after October 19, the Speaker of the House of Commons deemed a renewed attempt to vote on the withdrawal agreement inadmissible, and Parliament later decided against an expedited review of the bill, rendering the October 31 deadline impractical, despite the bill passing its second reading.
The Benn Act also mandated the Prime Minister to accept an extension decision once adopted by the EU. While Parliament could potentially vote down a decision if the extension period deviated from three months, the Prime Minister has accepted the EU decision. UK law automatically adjusts the definition of ’exit day’ according to another provision within the Act. (Update, October 30: the necessary secondary legislation to modify ’exit day’ has been enacted).
Given uncertainty surrounding the Prime Minister’s adherence to the Act’s obligations, two legal challenges sought to enforce it. In Scotland, the initial court ruling considered the challenge premature. However, upon appeal, the judges decided to put the challenge on hold to observe the Prime Minister’s actions regarding the extension request and later to maintain the hold to see if he would accept an extension decision. The High Court in England also deemed the action premature, a view upheld by the Court of Appeal. Separately, a challenge against presenting the revised withdrawal agreement before Parliament, based on the argument that the revised agreement’s customs arrangements violated previous legislation, proved unsuccessful.
Comments
The mention of early termination dates if the withdrawal agreement is ratified simply reflects existing law. As highlighted in the preamble of this extension decision (recital 10), this is inherently part of Article 50(3), considering that the agreement itself takes effect either on the first day of the month following ratification by both parties or on a different date specified in an extension decision. However, no other date is stipulated in this particular extension decision.
The reference to the unilateral revocation of the notice to leave the EU aligns with CJEU case law, as established in the Wightman judgment. Similarly, the point about the UK retaining its obligations as a Member State echoes a principle from two previous CJEU rulings and reiterated in Wightman concerning extensions.
Regarding the appointment of a Commissioner, the matter is less pressing than it could have been, given the unrelated delay in the new Commission assuming office on the customary date of November 1. Notably, the third extension decision, unlike the second, which hinged on the UK holding European Parliament elections, does not make appointing a Commissioner a prerequisite for granting the extension. While the preamble acknowledges the possibility of UK elections, the extension isn’t contingent upon them, though the prospect may have influenced the French government’s support for a longer extension.
At present, it appears likely that the UK’s future relationship with the EU will be determined by a December election. This presents a choice between various options: the withdrawal agreement (Conservative party), a no-deal outcome (Brexit party), revoking the notification (Liberal Democrats), renegotiation followed by a referendum including an option to remain (Labour), or rejecting Brexit while supporting Scottish independence (SNP), among other parties. While renegotiation and a referendum would necessitate a further extension, the other scenarios wouldn’t. The final decision now rests with the public. Time will tell if this leads to a conclusive outcome.
Barnard & Peers: chapter 27
Photo credit: Indiana Watershed Initiative, via Wikicommons