Sunday, 20 October 2019

Three letters ~ Brexit extension in the balance

Following the events in Parliament on Saturday 19 October, three letters were sent to the European Council President - BBC News 20 October.  One is the letter mandated by the European Union (Withdrawal) (No 2) Act 2019 and is NOT signed by the Prime Minister.  A second letter, which is signed by the Prime Minister, explains that the Prime Minister does not actually want a delay beyond 31 October.  The third letter is from Sir Tim Barrow, the UK's Permanent Representative at the EU and informs the EU Council President that there is an attached letter sent as required by the terms of the 2019 Act.

It is not known exactly
why the letter requesting the extension is unsigned but is possibly explainable by the use of electronic communication from Downing Street via the Permanent Representative but documents can be scanned and then sent electroically. The official EU reaction to the letter is also not known at this stage.

The EU Parliament's Brexit Steering Group will discuss the outcome of the latest UK vote on Monday - see this analysis by the BBC of the situation.  Any extension of time is in the gift of the EU Council and cannot be taken for granted.  If any EU Members are considering refusal then Mr Johnson's personal letter will perhaps push them in that direction but that needs to be set against the alternative view that the EU will recognise the realities of the situation and be more likely to offer an extension for pragmatic reasons - perhaps, this time, a final extension.

Mr Johnson's letter informs the EU that - " ... the Government will press ahead with ratification and introduce the necessary legislation early next week. I remain confident that we will complete that process by 31 October."

The letters in Full

I will leave aside for now the legal question of whether Mr Johnson's action is an attempt to frustrate the operation of the 2019 Act which was clearly enacted to require an extension request in the circumstances which actually arose.  The extension request appears to be valid and there is no doubt that the UK Prime Minister is the source of the request even if, for political reasons, he is acting reluctantly.  Political theatre appears to be at play here and it is necessary for the EU to decide what is the sensible, pragmatic, way forward.

For those willing to look into the frustration principle see House of Lords case of Padfield 1968 which effectively held that it is not open to a Minister to do a thing (or not do a thing) that would circumvent or frustrate an Act of Parliament.  Suffice to say, for now, that I am far from convinced that the available information suggests that the Padfield principle is in play.

BBC News 21 October - Court asked to consider if PM's Brexit delay tactic is lawful

1 comment:

  1. The annex doe not contain the usual formulation in forms specified in statutes i.e. [signed]. Johnson followed the law precisely, it effectively told him NOT to sign. Not the PM's fault that it was drafted by amateurs!