13

The UK Prime Minister, Boris Johnson, has clearly set out his position in that he wishes to leave the EU on 31st October with or without a deal. I.e if further negotiations with the EU do not result in an agreement which can be approved by Parliament, the UK simply leaves anyway.

Those opposed to a no-deal Brexit are discussing possibilities to prevent leaving without a deal. For example, it has been suggested that an act of Parliament be proposed; discussed; agreed by the Lords; and signed into law, requiring the government to request an extension beyond 31st October, if no deal has been reached by then. This is a possibility, given the amount of opposition there is to leaving without a deal in both chambers.

So - let's suppose this came about.

As I understand it, international dealings must be handled by the government: i.e the executive, not the legislature. Therefore as per the separation of powers, the legislature (Parliament) has no authority to request an extension by itself. It can only legislate to require the executive to do so. If my understanding is wrong, can someone correct me?

So what I want to know is - let's suppose that the legislature demanded that the executive requested an extension from the EU - but the Prime Minister ignored it, and did not make that request. Let's also suppose that it only became apparent that he did not make that request, late in the evening of 31st October.

What would the legal position be? What would be the consequences to the government of ignoring a law which had just been passed? Is there historic precedent involving any similar situation?

Note: I understand that Brexit is a controversial topic, and I am not asking about no-confidence votes, elections, proroguing, or anything else. I'm simply wondering about the above.

  • 2
    Passing an act requiring the government to ask for an extension, even if the government complies, does not guarantee the prevention of no-deal Brexit, because the extension might not be granted. But I wonder whether the queen might dismiss the PM and make the request herself. The PM's ignoring parliament might justify his dismissal, and the late hour might justify her acting directly. But for the extension to have effect, there must be unanimous agreement from the other EU states. This might be difficult to achieve if it is too late in the evening. – phoog Aug 27 at 16:47
  • 1
    Couldn't the PM's decision to ignore a law be overturned by a judicial review? The Government has to act within the law – Dave Gremlin Aug 28 at 12:19
  • It is well established that the Queen does not get involved with politics in the way described by @phoog. The fact that it is so well know makes one wonder why anyone would "wonder" such a thing. It looks like wishful thinking or campaigning rather than addressing the question. The extension request, if acceeded to by the EU can still be subject to parliamentary vote, within 2 days of the offer before October 30th. link. If the EU does not make an offer before the 30th, then it seems this law would have no effect. – Rinky Stingpiece Oct 20 at 17:32
  • @RinkyStingpiece she doesn't, but if a constitutional crisis became sufficiently dire, she might. I don't see that happening here, however. – phoog Oct 20 at 18:34
12

This would become a rather murky area, without precedents to go by. According to Article 50 (1), each country can decide to leave the EU in accordance with their own constitutional requirements.

There is no serious doubt that the initial Article 50 declaration was in accordance with UK constitutional requirements, so the two-year clock is ticking. It was reset to October 31st in accordance with section (3). Currently Brexit is not just the default decision under UK law, it is also the default under EU rules. It will take positive action to avoid it.

I expect that in the case your describe, it would come down to a political rather than legal decision by the EU27 if they want to accept the delayed UK declaration. Remeber, the Treaty of the European Union is not a law imposed from outside, it is the rulebook the Union has given itself. If they want to change it to let the UK stay, and if the UK wants to stay, who would have legal standing to complain?

  • 1
    Interesting. And even in this case, it wouldn’t be clear. The UK voted to leave, and the executive now wants to leave - although the legislature wants to stay. So still open to interpretation of our own “constitutional requirements”... – Chris Melville Aug 27 at 22:53
  • Some believe that the judiciary wants to stay as well, and any compromising of the separation of powers over the remain faction's zeal to remain at all costs is entering new territory. If a NC vote replaces the government with the opposition, this will be yet another change of administration without a general election, but of course such a sequence of events depends on smaller parties, and whether their primary demands are acquiesced to by whichever party leads any hypothetical prospective new government. An NC vote seems effectively contingent on the extension succeeding. Not much time left. – Rinky Stingpiece Oct 21 at 1:11
  • This means that the remain faction are hostage to the EU's decision. There is very little time for a NC vote & an alternative government (that might wish to compromise on or prevent Brexit) to be formed. Remain actors may therefore be lobbying EU governments, like the French, to support an extension. EU governments may be reticent to become embroiled in or blamed for executive instability in the UK. Some newspapers might describe it as "regime change" and "interference", and that is difficult and highly sensitive territory for governments, especially a UN security council member, like France. – Rinky Stingpiece Oct 21 at 1:17
6

Refusing to make the request for an extension would create a constitutional crisis.

The UK has no written constitution, but by convention the PM would be obliged to follow the clear will of Parliament via an Act. There would in fact be a legal obligation, created by the Act, to request the extension.

As a result of refusal two things could happen. The most likely is a vote of no confidence in the government. Parliament is unlikely to accept being ignored.

If for some reason that didn't happen then the other option is legal action to force the government to act, or for the PM to suffer the consequences of ignoring the court personally. It would likely be heard at the High Court with an emergency hearing as soon as possible.

The PM could just keep refusing or use some other delaying tactic to run down the clock and let the UK crash out of the EU. Then things are even more unclear - a new government is a near certainty, and that government may seek to re-join the EU under an accelerated process to stem the losses as quickly as possible. Of course, it would be up to the EU if it wanted to allow that and under what terms.

  • 3
    Please do not use unhelpful, emotive language like "crash out". Please simply stick to neutral legal language. Brexiters would not say "crash out", but would say "rejoice at full independence". The quality of these questions and answers rely on neutral, independent thought and not partisan views. Thank you. – Chris Melville Aug 28 at 14:10
  • 7
    @ChrisMelville "crash out" is the phrase used by many commentators and many brexiteers who oppose no-deal. It's the consensus view on the matter. Other views, such as it being a positive thing, are a small minority. As such I reject the notion that it's not neutral, it's the view agreed by the majority of experts and laypeople on the matter. – user Aug 28 at 15:06
  • Article 50 is explicit that rejoining must start from scratch using the procedure in article 49. The UK would be unlikely to get out of the obligation to join the euro, and it would theoretically also be required to join the Schengen area, though I suppose if Ireland wanted to stay out of the Schengen area then an exception would be made. It would be exceedingly unlikely to reproduce the rebate in membership dues that it has enjoyed. – phoog Aug 28 at 20:58
  • 1
    @user "Crash out" is indeed a loaded term, invented by those opposed to leaving. It's designed to make it more emotive, and to subtly persuade people with language. "The majority of experts" do not use that phrase: only those rabidly determined to ignore the referendum, and media troublemakers. – Chris Melville Aug 31 at 10:54
  • 1
    There is a court case in Scotland to force Boris Johnston to send the letter; if he refuses (and the case is successful), the court may send it on his behalf. bbc.co.uk/news/uk-scotland-scotland-politics-49679743 – CSM Sep 12 at 19:35

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .