11 September 2019 | ANALYSIS
[Note: this piece was not originally published on the date mentioned, owing to its sensitivity. Wolves is now publishing it given that the Benn Act has already served its purpose, and Parliament has just been dissolved.]
The mechanisms proposed and rumoured in the bowels of Westminster whereby the Prime Minister might seek to avoid obtaining an extension from the European Council to the Article 50 process, thereby delaying Brexit yet further beyond 31 October, have been many and varied. Wolves will analyse the one we believe to be the most plausible here.
The basic tactic would be to send a letter requesting an A50 extension by 19 October, as is required by section 1(3) of the European Union (Withdrawal) (No. 6) Bill, and then send another one (perhaps the next day) retracting it. We believe this could be legally plausible for the following reasons.
Section 1(1) of the No. 6 Bill sets out one condition by which an extension could be avoided: namely, that the Government has concluded an agreement under A50(2) TEU and this has been approved in the Commons, and debated in the Lords for at least two days (if not yet approved).
Section 1(2) of the No. 6 Bill sets out a further condition for avoiding an extension: namely, that the Commons passes a vote to leave the EU without a deal and this has been debated in the Lords for at least two days (if not yet approved).
Section 1(3) of the No. 6 Bill states that: “If neither of the conditions in subsection (1) or subsection (2) is satisfied, subsection (4) must be complied with no later than 19 October 2019.”
Section 1(4) requires the Prime Minister to “seek to obtain from the European Council an extension … by sending to the President of the European Council a letter in the form set out in the Schedule to this Act requesting an extension of that period … ” (our emphasis)
Section 1(5) states that, if an extension has been requested as per section 1(4), and if either of the conditions in section 1(1) or 1(2) are subsequently satisfied prior to 30 October, then: “the Prime Minister may withdraw or modify the request.”
We thought at first glance that something was missing here, and it has taken us a little while to work out what it was. We finally found the answer when we returned – just to keep things topical – to the Fixed-term Parliaments Act of 2011. The following explanation is given both as a comparator, and as a demonstration of legislative precedent.
Section 2(1) of the FTPA sets out one condition by which an early General Election may take place: namely, if Parliament votes for one by a two-thirds majority.
Section 2(3) of the FTPA sets out a further condition by which an early General Election may take place: namely, if Parliament passes a vote of no confidence in the Government by a simple majority. The rest of that section goes on to set out the procedure for calling such an early election.
Section 3(1) of the FTPA provides for the actual dissolution of Parliament following either of the events laid down in section 2.
Section 3(2) of the FTPA – now, here is the killer! – is the actual substantive element of this legislation, which provided for huge constitutional change at the time, in its mere five words: “Parliament cannot otherwise be dissolved.”
It is important to be clear about exactly what this means, and why it is there. The preceding subsections sought only to introduce new ways of dissolving Parliament, or to reaffirm existing ones. However, they did not establish that these were the only ways in which Parliament could be dissolved. If section 3(2) had been omitted, or were to be deleted, then there would have been no legal reason why the former tradition of the Prime Minister (or the Queen) retaining the power to call an election at their own discretion would have been abolished per se. We feel this is critical to note – if those five words were not in fact required, then why else were they there?
Crucially, then, returning to the No. 6 Bill: there is no such clause in this legislation. It would have been legally watertight, had it contained a further section 1(6) stating that: “The request cannot otherwise be withdrawn or modified.”
Without such a subsection, we at Wolves view section 1(5) as having no greater effect than, say, section 2(1) of the FTPA if section 3(2) were not present, in that it merely creates a new circumstance in which an extension request can be modified or withdrawn. However, this was technically a possibility before the legislation was passed regardless, and neither it, nor any subsequent clause, stipulates that this is the only way.
The argument in a court of law may well rest upon whether, in the interpretation of UK legislation, the word “if” – unqualified – can be taken to mean “if, and only if” by default, or whether it simply means “if”. We suggest that it cannot, offering as precedent the existence of section 3(2) of the FTPA and these three examples from other Acts over the decades, each of which explicitly uses the phrase “if, and only if”, as opposed to merely “if”. There would appear, therefore, to be a distinction between the two.
It is further worth noting that section 1 may have scuppered itself through being overly prescriptive about the definition of what “seek[ing] to obtain … an extension” means in law. This is where we respectfully disagree with Lord Sumption’s view that “not only has he got to send the letter, he’s got to apply for an extension”. We say this because, if section 1(4) had simply read as follows:
“The Prime Minister must seek to obtain from the European Council an extension of the period under Article 50(3) of the Treaty on European Union ending at 11.00pm on 31 October 2019.”
And if a new subsection had appeared below it, which separately stipulated that:
“[The Prime Minister must initiate this process] by sending to the President of the European Council a letter in the form set out in the Schedule to this Act requesting an extension of that period … “
Then the requirement to genuinely seek and obtain an extension would stand in law in its own right – as Lord Sumption appears to be suggesting. The procedure as to how to do so would be specified separately, but the general requirement would nevertheless exist in its own right. However, this is not the case. Section 1(4) as it stands is, to our minds, clear in its use of the word “by” that the definition of “seek[ing] to obtain” is inherently satisfied, provided that the specific action which that subsection stipulates has been taken.
As a final point, it is worth turning to Article 50(3) TEU itself, which states that:
“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”
Were the Prime Minister to send a follow-up letter the next day confirming that the extension request had been withdrawn, this would no longer constitute Britain’s agreement to an extension under EU law, and the legal effect of the first letter in international law would be nullified.
In conclusion, then, we believe that while the Prime Minister would, by all accounts, not be acting within the spirit of the No. 6 Bill if he were to request and subsequently cancel an extension through two separate letters to the European Council, he would nonetheless technically be acting within the letter of it.