20

The Guardian reported under the headline "Brexit: Gove refuses to rule out ignoring any law passed to stop no deal":

Michael Gove has repeatedly refused to rule out the possibility that the government could ignore any law passed by parliament to stop a no-deal Brexit

and

Asked again whether it would be extraordinary for a government not to abide by the law, Gove said: “We will see what the legislation says when it is brought forward.

Concerning extensions, all I found out is the actual article1 reading

  1. 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.
    (emphasis mine)

doesn't specify how extensions are requested, in fact, it doesn't even say anything about a request, just "in agreement with the Member State".

So, the final question:

If the parliament were to pass legislation mandating extension and the government refuses to ask the European Council, can one of these happen:

  • the EU just says: "Well, parliament said it, so the UK want to extend, we'll decide if we want to as well"
  • parliament (possibly through some representative e.g. speaker) decides to ask themselves

Please don't question if practically the Council could agree internally at short notice, just assume it could happen.

If you want, I'd be happy to see information on whether such an extension without government involvement would practically work, although that is not the primary question.


1 link doesn't go to the treaty, but European Parliament research (including article 50 on page 2) because it provides context and further reading in case anyone is interested.

  • Comments deleted. Please don't use comments to answer the question. If you want to answer, post a proper answer which adheres to our quality standards. – Philipp Sep 2 at 13:41
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    Not an answer but I did want to point out that your question is based as a false assessment of his words “We will see what the legislation says when it is brought forward", he also used the "pig in a poke" analogy, he was simply saying until he's seen the legislation he can't say, any bill will be studied very carefully & if there's 'any' loophole in it's wording that allows them to 'legally' ignore, bypass or circumvent it in some way they almost certainly will but any suggestion the government intends to act illegally is completely spurious. – Pelinore Sep 3 at 0:48
  • @Pelinore, Johnson's words as recorded were less carefully hedged: "I want everybody to know – there are no circumstances in which I will ask Brussels to delay." – Peter Taylor Sep 3 at 8:48
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    If the screw up the bill in a way that lets the government dump it (which is what he meant) as it looks very much like they have from an article I just read, they appear to have trapped themselves with Queen’s Consent (not Royal Assent, 'Queens Consent', it's different) which means the bill gets killed off on the 3rd reading & there's nothing they can do, then nothing 'illegal' will have happened in any sense, parliamentary or otherwise. – Pelinore Sep 3 at 14:37
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    That article is pulitzer material. Do they have a category for "Stupidest Headline"? – user27792 Sep 3 at 16:30
41

Probably not.

Article 10 of the Treaty of the European Union states that:

Member States are represented in the European Council by their Heads of State or Government

It follows, therefore, that any notification made to the European Council must come from either the relevant country's Head of State or Head of Government. In the case of the United Kingdom, it would have to come from either Boris Johnson (as head of government) or HM The Queen (as head of state).

  • Thank you for your answer. I'll wait a bit before accepting, just in case something can be added, although this seems quite final. – user24343 Sep 1 at 18:17
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    (+1) It's also a general principle of international law and diplomacy. Countries are represented by their executive and diplomatic service, with other countries deliberately avoiding meddling with internal constitutional processes (responsibilities within the cabinet, negotiation mandates, ratification procedures for treaties, etc.) unless there is a complete breakdown of the constitutional order (think rival governments, government in exile and the like). – Relaxed Sep 1 at 20:06
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    @Relaxed: The UK is drifting closer and closer to such a "complete breakdown" every day. We've now had "The PM is going to prorogue Parliament for political reasons" happen, and it's a very short road from there to "The PM has advised HM the Queen to withhold royal assent from a bill." – Kevin Sep 2 at 1:09
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    @Kevin that's not a complete breakdown. A breakdown would be refusing to accept or allow the subsequent vote of no confidence (if the parliament continues to support the government by not bringing a vote, or not voting, well then it would have proved itself as just playing silly games and trying to shovel the whole mess onto the executive while hamstringing the options.) – Display name Sep 2 at 9:57
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    @Orangesandlemons It can get more complicated: One method of acceptance of the vote of confidence is to shut everything down for 14 days and have the election . It's not immediately clear or not whether any of the potential continuity governments have the authority to hold a vote of confidence in themselves under the meaning of the FTPA, although the Cabinet Manual is disapproving of recreating a situation where it's notionally up to the Sovereign. – origimbo Sep 2 at 10:52
16

The correct thing to do in such a case is to call a vote of no confidence, and topple the government. Parliment can then give it's confidence to someone who will make that request However, given that parliament taken as a whole has shown an aversion so far to actually voting for anything definitive, rather choosing to just put spokes in the wheels of other plans, it is debatable if they would go down the correct route or just panic at an even later stage.

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    @Alexander true in terms of the actual votes, but there was nothing stopping all those completely against no deal from internally sorting out what they were up to before submitting amendments etc. The main problem is that many politicians seem to be genuinely thick nowadays – Display name Sep 2 at 7:14
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    No, the problem is that there are at least three possibilities (I think it was eight in total?) and no single possibility got more than 50% of the votes. – Alexander Sep 2 at 7:21
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    @Alexander Invoking article 50 got more than 50%. The default since then is no deal unless an alternative is approved. Parliament has had more than two years to sort out their preferences. – Sjoerd Sep 2 at 8:02
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    @Alexander Parliament could have changed the rules (if necessary) to do ranked or preferential voting of multiple options at once. – Lag Sep 2 at 10:58
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    @Lag as you say, not quite so simple (fixed-term parliament act, and also the truth is the Queen could put a block on too much messing by Boris Johnson if he pushes to far), but the vote of no-confidence is still the correct way of going about things - the system is not designed to wait for the last moment and hack around with trying to compel the executive via bills which themselves can be starved of time. The way everyone in parliament (with a handful of exceptions) has been a blame-shifting disgrace, no matter which side they support. – Display name Sep 2 at 11:20
0

The EU can't really help here. The law in the UK is that EU membership ceases on the 31st of October, which means the treaties are no longer in effect and for example the EU courts have no jurisdiction, Freedom of Movement ends etc.

The EU can't really do anything to prevent that. They could possibly make offers, such as allowing a new government (in the event of a General Election) to immediately re-join under current terms, but actually extending the current membership does not seem to be within their power to do.

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    Not sure how this answers the question - can the Parliament ask for article 50 extension? This post contains only what EU cannot do. – Alexei Sep 2 at 12:19
  • The premise of the question is "If the parliament were to pass legislation mandating extension and the government refuses to ask the European Council, can one of these happen" – user Sep 2 at 13:06
  • Not sure that the EU could invite the UK to re-join on the current terms (substantial rebate, no euro, Schengen opt-out...). New members have to join on standard terms, don't they? – Andrew Leach Sep 2 at 20:58
  • The law in the UK does not have any effect on when the treaties cease to apply in the UK. The treaty itself controls that. The UK cannot change that nor otherwise specify it by unilateral action, except by withdrawing its Article 50 notification altogether. Without that, the time of the UK's exit can be changed only by mutual unanimous agreement of the European Council or by the adoption of a withdrawal agreement that specifies a different date. – phoog Sep 3 at 2:50
  • @AndrewLeach the EU can make exceptions to its own rules (and sometimes does) for this kind of thing, e.g. the extension to Article 50 that said clearly the end would be in March. – user Sep 3 at 8:42
0

Parliament is sovereign.

They could pass legislation (through both houses) removing the ability of the government to conduct treaty negotiations with the EU and vesting this in a person or commission appointed by that legislation.

(Legally, the UK would have changed its form of government. Parliaments have done this before - the Fixed Term Parliaments Act is an example as is the legislation passed by various Commonwealth parliaments (with similar constitutional arrangements to the UK) becoming a republic, just as a for instance).

  • "Legally, the UK would have changed its form of government." Could you expand on that? That would be true for changing to a republic; but the FTPA didn't change the form of government in the UK; it just moved the power to call an election from the PM to Parliament, and changed the rules on no confidence votes. – Steve Melnikoff Sep 3 at 8:11
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    This would appear to be incompatible with Article 10(2) of the Treaty on European Union, which requires representation by the Head of State or the head of government. As such, the ECJ would strike it down. – Andrew Leach Sep 3 at 9:27
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    I thought the Queen was sovereign? But otherwise I guess that's possible. Still, they would need the queen's assent on this bill, wouldn't they? – einpoklum - reinstate Monica Sep 3 at 13:59
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    @AndrewLeach: The parliament could legislate something saying that the title of head of government will differ for different functions. – einpoklum - reinstate Monica Sep 3 at 14:00
  • @SteveMelnikoff - the FTPA was a change in the form of government by doing that. So was the 1911 Parliament Act. Overseas, we have something like the New Zealand Constitution Act: legislation.govt.nz/act/public/1986/0114/latest/DLM94204.html - my point is that processes of government and legislatature can evolve by Act of Parliament in the Westminster system. – Rich Sep 3 at 23:08
0

Either side can apply to extend Article 50 of the Lisbon Treaty (2009). This means that in exceptional circumstances, where there is clear potential detriment to both the UK and the EU, the EU could if it was politic and appropriate so to do, to enable a pending general election to first take place following a vote of no confidence in the Government, apply to the UK Government to further extend Art. 50.

A cynical postponement of the general election by a failed government diametrically opposed to the will of Parliament, while the UK is still at that time a member of the EU could contravene the British electorate's freedom of expression, contrary to Article 10 of the European Convention on Human Rights. The critical muting of a nation's voice goes to the heart of the Convention's raison d'etre to preserve notions of freedom and democracy. The dubious legitimacy of any such precipitous political skull-duggery would be challengeable in High Court via the Human Rights Act 1998 and on appeal in the Supreme Court.

Where Parliament passes a law requiring the PM to seek an extension, the refusal so to do by a lame duck British Government would be a contempt of Parliament and blatently contrary to the Rule of Law.Apart from a vote of no confidence,this would inevitably involve the courts and a writ of mandamus would be issued requiring the action be carried out in default there would be a power to imprison Boris Johnson. Further, failure to comply would give locus standi to any citizen to apply to the High Court pursuant to the provisions of Article 41 of the European Charter of Fundamental Rights to protect the fundamental right to good administration. This includes the right of every person to be heard, before any individual measure which would affect him or her adversely is taken.

If Boris Johnson and his cronies played fast and loose with these underpinning rights, going forward where would that place the UK in the general scheme of international diplomacy? Our national integrity and kudos would be shot to pieces. Who would we be to claim the moral high ground on questions of human rights?

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    Hello Leo Goatley! Welcome to Politics.SE. Please read the tour page. In addition, this is a great answer, but could you provide links to your assertions? Official sources are most desired. – isakbob Sep 6 at 16:31

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