The UK appears boxed in on the Brexit extension

6th October 2019

Years, even decades, can pass without there being anything significant to note about the UK constitution.

Now there seems to be something almost every day.

Constitutional law should not be this exciting.

*

The law and policy highlight of the week just gone was not any political announcement, still less some breathless quote from an unnamed “Number Ten source”.

It was instead a passage in a legal document in a court action.

The action is the one in Scotland for a court order to oblige the prime minister to send the Article 50 extension request in the event of there being no Brexit deal by the end of this month.

(In Scotland, these court orders are called interdicts, and their equivalents in England and Wales are known as injunctions.)

The passage was tweeted by Jolyon Maugham, who is party to the case

The content of the passage means that the UK government has affirmed that it will make an application for an extension under the Benn Act in the event of a possible no deal Brexit.

The passage also affirms that, in accordance with the Padfield principle, the government will not do a thing to frustrate the operation of the Benn Act.

Normally, such a passage would not be exceptional: what the government is doing is confirming that it will comply with the law in general and will take certain specific mandated steps in particular.

But.

This express and formal admission contrasts with (even contradicts) the political statements of the government that the UK will leave the EU on 31st October, deal or no deal.

How can these positions be reconciled?

*

The first thing to understand is the purpose of the passage in the quoted legal document: why would the government say this to the court?

Here the important thing to realise is that the government is facing an application for a court order.

One common response for any party facing an application to a court for an injunction (or interdict) is to assure the court that such an order would be unnecessary.

Sometimes these assurances can be given as formal undertakings intended to have binding effect: a sort of self-inflicted injunction (though I do not know whether the government offered formal undertakings in this case).

The intention is that the court accepts those assurances in lieu of making a formal order.

On the face of the document quoted in that tweet that is what the government is doing in this case.

Such statements are not made lightly, as breach of such an assurance (especially if it is given as a formal undertaking) can have serious legal consequences.

The breach itself can be the basis of a fresh court order, and there can even be contempt proceedings.

In other words: somebody senior would need to have signed off on that assurance being made.

The minister superintending the case for the government would be the attorney-general.

Interestingly, this is reported in today’s Mail on Sunday about the attorney-general Geoffrey Cox.

If this is correct, this would accord with the attorney-general signing off on that statement to the court.

But.

The attorney-general would not be the minister sending the extension application – it would be the prime minister.

The matter would not be within the control or power of the attorney-general.

So for that statement to be made to the court it would seem to me that the assurance would also need to have been signed off by the prime minister personally.

It is difficult, perhaps impossible, to imagine that statement being given to a court without it being approved directly by the prime minister.

One suspects that the prime minister was formally advised by government lawyers that such a statement was the best (perhaps only) way a formal court order could be defeated.

*

If the statement to the Scottish court was approved by the prime minister then we have the situation that Number Ten is (in effect) saying one thing to the Scottish court to avoid an interdict and another thing to its political and media supporters to avoid embarrassment or rebellion.

Take for example this tweet from Steve Baker, the leading pro-Brexit backbench Conservative MP (and former Brexit minister).

This tweet was sent in response to the news breaking about what was said to the Scottish court.

Baker is a controversial politician but not a dishonest one.

If he says a source told him that then that must be the case.

But the source is either hoodwinking Baker, or is hoodwinked themselves.

For the statement to the Scottish court goes further than confirming that the government would comply with the law in general, but also that specific mandated actions will take place if there is no deal.

And these steps could end up with there being an extension and the UK not leaving on 31st October.

Of course, there could be an intervening political event which means an application for an extension is not accepted by EU27.

But such a contingency is certainly not definite and so, all other things being equal, what Number Ten is telling Baker and others is not the same with what it is formally, under pain of possible legal consequences, telling the Scottish court.

*

If the government’s statement to the Scottish court is correct then there appears no room for wiggles.

The amateur hour lawyering of “Number Ten sources” on possible side letters to EU27 and orders in council are all met by the assurance at (d) of the quoted passage.

We find out tomorrow if the Scottish court accepts the assurances or if it makes an order.

In my view, it would be prudent for the court to make an order given the open statements of the prime minister, such as this which actually tweeted during the case.

Perhaps the prime minister in his heart wants there to be an order, so that he can have something to blame.

*

In the last few days there have been reports of other ways in which the government believes it can head off an extension.

There is mention of the Hungarian government providing a veto – despite Hungary being a beneficiary of the financial settlement in the proposed deal (and Hungary also being unlikely to act not in concert with its Visigrad allies and neighbours, or to upset Germany and Austria).

There is also mention from “Number Ten sources” of the UK threatening to disrupt EU proceedings, which is ironically the reverse of the UK threatening to leave.  

It seems Number Ten thinks threatening to stay is now its strongest card, as opposed threatening to leave which it thought was its strongest card until now.

(And the scope for real disruption is slight.)

The reality is that the UK is locked into a legal process governed by Article 50 and the Benn Act, and now only something outside of the government’s control which can affect the outcome of the operation of those laws.

*

But what of a deal?

Last week, and to its credit, the UK did publish a plan for resolving the backstop issue which is one main reason (if not the main reason) why the current deal is unacceptable.

Had such a plan been published months ago, or years ago, in the Brexit process then maybe the plan could have been the basis of constructive discussion and movement.

But rush-published in the weeks before the latest departure date the proposals were insufficient, despite their glimmers of realism.

EU27 seem unimpressed, and Ireland finds the proposals unacceptable.

Unless something momentous now happens, there does not look like scope for a deal before 31st October.

*

And so, the following three propositions today seem more likely than not to be true:

1. there will not be a deal in place before 31st October

2. the UK will request an extension

3. EU27 has no particular reason to refuse that extension

Of course, events can rebut each of these propositions, and in a few weeks time the UK may well be outside of the EU.

But, that passage in the government’s own formal court statement seems to close off the one thing entirely within the UK’s power and control – and the lack of a deal and the acceptance of the extension are things outside the UK’s power and control.

The UK government is in a box, and it is difficult to see how it can get out of it.

**

If you value the free legal and policy commentary on this blog and on my Twitter feed, please feel free to give to my Patreon account.

**

I also now have a Facebook page where I will be linking to my posts and podcasts, so you can share them with those who may be interested in the public understanding of law.

**

Please subscribe, there is subscription box above (on an internet browser) or on a pulldown list (on mobile).

**

Comments are welcome but pre-moderated, and they will not be published if irksome.

41 thoughts on “The UK appears boxed in on the Brexit extension”

  1. Thank you David for all you’re doing, I’m no expert on law so it’s really good to be able to read such clear info about what’s going on. Let’s hope you’re right and no deal will be averted!

    1. The damage done to Britain by Brexit, May, Johnson, the Tories, etc. is such that not even a most unlikely withdrawal of Article 50 – let alone averting no deal – at this point would not prove to be a remedy for having split the country, for having created a climate of diffuse social resentment and hatred, for having lost all credibility on the international scene.

  2. If a Prime Minister wished to engineer a situation where he was shown on television being led in handcuffs by police out of 10 Downing Street for attempting to “implement the will of the people”, what steps would he take?

    1. I wonder whether the reference to the Prime Minister “in his heat” is a misprint, a Freudian slip or exactly what was intended.

  3. “Perhaps the prime minister in his heat”

    We know that the PM is normally in heat, but I expect that you meant “in his heart”. (Though that does raise the question of whether he has one?)

    No need to post, just fix the typo.

  4. Thanks, very interesting. I have a nagging worry about the mechanism to change the law once an extension has been sought and agreed. As I understand it, this will require the Government to table a statutory instrument (negative resolution). If the Government simply refuses to table the statutory instrument, presumably we would have left the EU on 31 October under U.K. law (if not under EU law). Is there a potential loophole here?

    1. Your loophole is meant to be dealt with under section 4(1) of the Benn Act – changes “may” to “must” in the 2018 EU withdrawl act, thus if extension is agreed the Govt “must” amend the exit date.

  5. Your customary very clear exposition summarises the situation of the UK Government. However, in the bigger picture, the situation is one of two negotiating Parties, neither of which is a monolithic entity, and the outcome will be determined as much by the EU side as by the UK side.
    On the side of the UK and its constitution, we now “know” the UK government’s position; our Courts seem to be doing what they should; but we don’t know what, if anything, our Parliament is doing or can do, in the time frame. Any clues?
    On the side of the EU and its constitution, the negotiating entity also comprises distinct elements, which of course have differences and conflicts of interest. The Commission, through M. Barnier, (one element) is handling the negotiation on behalf of all the member states (some 27 elements) and the EU Parliament (another element, one that itself is in no way monolithic).
    What the EU side is deciding to do will be at least as influential over the outcome as what the various UK elements are deciding to do. Where do people in the UK go to get a clear summary of the EU’s situation? Certainly not to the UK popular press or media, regrettably. Too many want to see this as a negotiation between a plucky colony and its dastardly imperial ruler after a war of independence has ground to a standstill.

  6. Admirably clear and precise, as you say, constitutional law isn’t supposed to be this exciting……But it is!

  7. Is there a timing loophole? In the UK the clocks go forward 1 hour at 1am on the last Sunday in March, and back 1 hour at 2am on the last Sunday in October.

  8. Is there any room for the government to prevent the giving of effect of the extension not just in EU but in UK law?

    1. So the options for the government requesting or not requesting an extension *are* all UK law options (they consist in No 10 seeking its own majority in Parliament for what it wants to do, or, simply having to obey the present legislation i.e. the Benn Act). The legal effect, of such extension request as arises or doesn’t, is entirely at the EU & international law plane.

      1. No. The Benn Act amended Section 20 of EUWA 2018 to change the exit date in UK law to align it with EU law if an extension is granted by the EU. So, it’s not correct that there are no UK law effects intended or required. My question was really about whether there is a lawful way to frustrate the intention or if the drafting is sound.

        If the date in UK law is not aligned and the ECA Act 1972 is repealed while we are still members of the EU, there would be legal chaos.

        1. Hey you got me there. And yes chaos. Why would any executive seek to cause the domestic date not to change though. I mean it’s one thing to throw faeces at the 27, another to eat them.

          1. If you were Johnson or Cummings, then peak Johnson or Cummings in this matter is to try to disrupt efforts to secure an extension without engaging the Padfield principle (unlawful to frustrate the purpose of an Act of Parliament). If you were able to tell the EU that whether we leave or Remain, we will repeal the ECA, which would mean the EU’s funding by UK under the treaties would be stopped by operation of UK law, amongst other things, you might expect the EU to refuse an extension request.

  9. I wonder, does the government view the EU in the same (archetypal) way that it views the UK? Parliament is the original English one with Welsh, Scottish and N Irish extras. England, and many English MPs do not view Wales, Scotland or N Ireland as partners with equal rights etc. In the EU, all members have equal worth, even if some are much more financially powerful than others?

    Does the government then expect that the EU can somehow “force” or “oblige” recalcitrant members of the EU to change their minds?

    Is this the fundamental problem that the UK (England) has with the EU?

  10. Thank you very much for this.

    I am puzzled as to why this action has been thought necessary. If the PM flouts the Benn act, he breaks the law. Does that not have sufficient consequence on its own? Why do the petitioners feel it necessary to ask for an injunction obligating the PM to obey the Benn act? The implication seems to be that otherwise, they fear the PM could act unlawfully without any adverse consequence. Surely that’s not the case?

  11. You point out the contradictory statements Johnson made (or were made in his name) on Friday. I thought that, even by Johnson’s standards this was shocking. You don’t draw any conclusions about this (probably very wisely!), but it seemed to me that Johnson was surely either guilty of contempt or perjury by making them on the same day and in the order in which he did. The only caveat I could think of was that he did have a “cunning plan” to obviate the need to comply with the Benn Act, but agree with you that there is no rabbit to be pulled from the hat. This being so, then he has made (or at least his agents have made) one promise to the Scottish courts then he personally has sought to refute it in personal remarks – is he not, therefore already subject to some legal consequences for this behaviour?

  12. Aiden O’Neill was very good, he was reading out live commentary from Barker, etc to the Court as it was happening.. https://twitter.com/GrayInGlasgow/status/1180128544820809729?s=20
    Saying, ‘No doubt the Prime Minister’s ability for self-deception exceeds his ability to exceed others.’
    IMO the Court has to continue with the case as it’s obvious that because Johnson didn’t supply a written affidavit that he will comply with the Benn Act, then he feels he personally has wiggle room, and leaving Cox in the dark is his out.

  13. I hesitate to add anything to such a well reasoned and sound analysis.
    However, might I suggest that one action to reconcile the various obligations may be for the current Prime Minister to resign before the deadline set out in the Benn Act? He may then challenge the opposition parties to an actionable vote of no confidence (pursuant to the FTPA 2011). His reasoning being that the triggering of a general election (and consequent dissolution of Parliament) would result in the clock ticking down to Brexit on 31/10.
    In this context, discussions may arise as to the application of the Sovereign’s ‘reserve powers’; the ‘Lascelles Principles’; and the FTPA 2011.

  14. There is some talk that the Scottish Court of Sessions could use the equitable doctrine of officum nobile in which the Court itself would ‘sign’ the letter to the EU requesting an extension. It would do so because it became convinced that the Prime Minister would not obey the Benn Act.

  15. “It is difficult, perhaps impossible, to imagine that statement being given to a court without it being approved directly by the prime minister”

    The fact that we’re trying to “imagine” who might have been responsible for approving that statement (together with the lack of, say, an affidavit) would suggest to my non-legally-trained mind that its main objective is to avoid a formal order or injunction, so as to maintain uncertainty and the possibility of some delay between a potential violation of the ‘Benn Act’ and the activation of the consequences of Contempt (e.g. by playing on uncertainty over exactly who can be held in contempt, etc.).

    Thus, as you point out, it would certainly be “be prudent for the court to make an order” anyway, just in case (even though that would imply that the court does not trust an undertaking offered by the Government — they have already been, after all, found in contempt of Parliament).

  16. As there seems still to be some plurality of views within government on the desirability or wisdom of NoDeal on 31 October – for example from what you say above about the Attorney General – it might be more correct to say ‘Those who wish NoDeal Brexit’ are in a box, rather than ‘The UK government’…

  17. “There is also mention from “Number Ten sources” of the UK threatening to disrupt EU proceedings, which is ironically the reverse of the UK threatening to leave.”
    This might certainly offer *some* incentive for the EU to wash its hands and not to grant an extension.

    In practice, though, it’s a rather hollow threat: any sustained disruption sufficiently dramatic and visible to have any chance of gaining the hoped-for local boost in the UK polls (cf. Cameron’s ineffective ‘veto’) would almost certainly constitute a clear violation of the treaty obligation of “sincere cooperation” (‘Article 7, TEU’ iirc), which could quickly lead to UK voting rights/veto being suspended.
    Still in and subject to obligations but stripped of power to react would surely be pretty much the worst position possible in political terms … actually, given the Government’s seemingly unerring ability to pursue the worst possible option in any given situation, I’m now beginning to worry a little more about this!

    The process *could* lead to some awkward EU horse-trading over building sold support for suspension of UK rights (albeit the end result would be in little doubt as no remaining MS will want excessive disruption) but this would only really affect which sweeteners are offered to which Visegrad MS to ensure a smooth path to unanimity, not the UK’s position.

    “Had such a plan been published months ago, or years ago, in the Brexit process then maybe the plan could have been the basis of constructive discussion and movement.”
    Agreed: two years ago it would have been welcome. The acceptance that accepting SM regulation is unavoidable if hard barriers are not to be erected between jurisdictions sharing a land border was always by far the biggest step required towards any viable solution, far more important than the issue of the Customs Union, albeit this latter has been the subject of far more ‘debate.’
    But at this ultra-late stage it seems far too little and far too late —certainly in respect of the imminent deadline— and of debatable sincerity: with so few days remaining they delayed sending it to suit the schedule of the Tory conference, and then, after 30 months of messing around, demanded an instant response!

    Nonetheless, this will be banked by the EU negotiatoring team as evidence of the insincerity of another UK ‘red line,’ and this may help to ease the granting of a further extension. Though this is likely the opposite effect to that intended by the UK executive, the EU negotiators can point to at least some progress being made!

  18. I think there’s a relatively simple way for Johnson to comply with the law but not make the request: he can resign as PM on the evening of the 19th so that the office of Prime Minister is vacant at the time the deadline is reached.

    His (temporary) successor – probably Dominic Raab, as the senior cabinet minister – won’t take office until the 20th and therefore won’t be obliged to make the request (which must be made ‘no later than the 19th’). And, since he’ll still be party leader, Johnson himself will quickly bounce back at the coming election.

    My guess is that they’re hoping Jeremy Corbyn will give in to the temptation to call a no-confidence vote ahead of the prorogation. If a lot of MPs are confident that the Benn Act has prevented No-Deal on the 31st, they might feel they don’t need to compromise, so might well still not have agreed on someone by the 19th – MPs would then have just the Sunday and Monday to settle on a caretaker before Parliament is dissolved.

    1. Perhaps. Is it not the case (convention) that even if the PM announces his resignation, it must be formally submitted to the Queen, along with a recommendation for his successor?

      Any ‘hand over of power’ that I’m aware of in recent years has involved a very short period when there has been no one in the office of PM.

      It’s hard to imagine a country being without a PM for, say, 12 hours; the usual question being, “what if something unexpected happens?”

      Is it not the convention that when the PM resigns all the members of the government are deemed to have resigned?

      1. I don’t know what the exact protocol is for when a PM resigns; I imagine it’s not actually very well defined. I’m sure Johnson would have to formally tender his resignation to the Queen but I suspect he could quite easily do it, on the evening of the 19th, in a way that the courts would recognise as freeing him from the responsibility.

        He almost certainly will recommend a successor but Her Majesty would still need to invite that person to take on the office. Whoever she asks could reasonably spend a few hours thinking about it: it’s a position with huge responsibilities which they’d be taking up at a particularly challenging time and, unusually, the roles of PM and party leader would be split, making the decision harder (so, even if it is Dominic Raab, who previously ran for the leadership, it can’t be taken for granted that he’d accept).

        As you suggest, it’s hard to imagine the country being left without someone in charge – that’s why the succession (to the throne) is very well defined. Succession to the office of Prime Minister doesn’t need to be defined, however, because the PM is appointed by the Monarch, and the Monarch is (in principle) able to exercise all the PM’s powers; as I understand it, from a legal perspective, as long as there’s a monarch, there’s no problem. Politically … that’s another matter.

        In practice, in more normal circumstances (such as the PM dying suddenly), if some unexpected emergency arose in the few hours while the office was vacant, I think the most senior cabinet minister would assume responsibility and give whatever orders were necessary. The current situation wouldn’t qualify as an emergency, though, so nothing like that would apply.

        The Queen could make the request herself, of course, but I suspect she would rather face the disappointment of remainers, if she does nothing, than the rage of leavers if she actively ‘takes sides’.

        1. On appointment, the new PM ‘kisses hands’ with her majesty, and receives the seal(s) of office. On resigning, the seal(s) are returned. The next PM does the same.

          The convention is that when the PM resigns, the whole government does so.

          For a PM to resign one day, and deliberately leave the country “leaderless” for a period of hours risks bringing the Crown into politics.

          If there is an “event” during this “interregnum” any government action might well not have any authority, which gets us into very deep waters.

  19. It may be possible for the PM to square the circle if say the Lord Chancellor asked for the extension on behalf of parliament whilst making it clear that it is not the wish of the government. If it were not for a family luncheon I would try to work out the full implications of the idea.

  20. I apologise for what is a rather silly question, but not having read the Benn Act (sorry!), but having read Steve Baker’s statement (“All this means is that government will obey the law. It does not mean we will extend. It does not mean we will stay in the EU beyond 31 October. We will leave.”, could it be that if the statute in question does not say that in the event of an extension being sought, and / or granted etc. the UK cannot leave the EU (words to that effect) then the UK can leave on 31 October? i.e. both can happen simultaneously – a notice is served but the UK leaves anyway. Is it not what SB is on about (their secret weapon)? If I am correct, do we not need a court ruling stating that the assumption is that on seeking an extension the UK cannot leave the EU?
    Just a thought and, as I said, perhaps a silly question.

  21. Having got up to the mention of Hungary so far, I just want to add to doubts that Hungary would act out of some sort of Euroscepticism, so as to sabotage the interests and decision of the 26, with this I read today, that two days ago Hungary’s government re-expressed its policy that it wishes for the EU to be expanded to include Montenegro and Serbia as soon as possible, with a target of 2025, accession criteria permitting. At the Warsaw Security Forum on 2 October, Hungary’s foreign minister Péter Szijjártó told his audience that all member states, including Hungary, would economically benefit from the inclusion of six Western Balkan countries in the European Free Trade Area, as the EU is the main trading partner in each of them. This is hardly the language of a government with its face set against the EU.

  22. Having read the letter the PM is required to send to the President of the EC I’m struggling to see where it says the UK is actually requesting an extension. Certainly not in the first paragraph. In the the second paragraph is says the UK “is seeking a further extension”. Taking the words for their meaning that’s not saying that’s the purpose of this particular letter. It suggests there is some parallel action taking place to achieve this aim. So the PM would be within his rights to point this out to the EC and suggest they wait for this action to materialise. Or am I being too picky?

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.