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The European Union (Withdrawal) (No. 2) Act 2019 mandates the Prime Minister of the UK to seek a Brexit extension unless a withdrawal agreement is agreed. However Boris Johnson has also repeatedly said that the UK is leaving on 31 October, deal or no deal.

How can these two seemingly-contradictory positions be reconciled? The only semi-sensible thing I can see is that Boris Johnson is going to violate the law on 31 October, but that's still only semi-sensible because the prime minister knowingly and intentionally and publicly violating the law sounds like nonsense. After all, what is the point of law if it can be publicly violated by the highest-ranking official in the country?! But if he's not going to violate the law, how is he going to leave without a deal? He'd have to change the law, and parliament is clearly not going to cooperate.

Related: Could Boris Johnson theoretically ignore any legislation passed to prevent no-deal brexit? which, if I'm understanding it right, means Boris Johnson cannot refuse to request an extension without some serious consequences to his government.

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    The Johnson government can make it clear to the European Council that there is no reasonable chance of an agreement which is mutually agreeable while at the same time fulfilling British law by requesting an extension - the European Council does not have to consider or grant an extension, and Johnson can do everything he can to poison the well to his benefit. – Moo Oct 8 at 0:57
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    You've left out the part where the PM is also not required to request an extension if parliament passes a motion authorizing departure from the EU without a deal. It may be unlikely, but the act nonetheless allows a no-deal departure under certain circumstances. – phoog Oct 8 at 1:08
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    @Moo You wouldn't know it from the coverage, because if it's even mentioned it's always tucked away in a trivial mention at the end of a big Pro-Johnson or Anti-Corbyn rant, but the Opposition DO want an election. They just want the extension agreed first. He says he wants a general election. I want a general election. It's very simple: if he wants an election, get an extension and let's have an election." – Jontia Oct 8 at 8:35
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    @Moo Just to mention this, but on this side of the channel we actually assume that the EU will give the extension. France is the most opposed, but we absolutely don't want the UK to be able to paint us as a boggeyman again. So, since there's a good change Johnson will fall after the extension most analysts think it would be approved. The main source for a refusal could be some small country if Johnson goes to secretly ask them to refuse (some are suspecting Hungary might be making such a deal) – CaptainAwesomeMcCoolName Oct 8 at 14:05
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    @CaptainAwesomeMcCoolName the UK doesn't see the EU as the bogey man in all of this, that would be the Tory party and Parliament who have voted basically no for every way forward, and now want more time to vote no on the same things. While there are some things the EU can be seen as hard lining on, most average Brits understand the situation very well. We have our hard liner Leavers who will always poison the well while they can, but the vast majority of us arent that. – Moo Oct 9 at 2:07
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Ask, but not honestly

In short, the law states that the PM must seek an extension. It does not state that EU27 must grant the request.

So if BoJo can convince EU27 (or a few key states really) that an extension is a meaningless waste of time, Brexit will still happen on the 31st.

  • It doesn't really depend on BoJo whether extension is going to be a meaningless waste of time. He can be VONCed by the Commons at any time, and it looks like an election is on the cards. – michau Oct 8 at 9:35
  • @michau Certainly. But while he IS the PM it is he who must seek the extension and as such is in a place to affect how the request is recieved. It seems like his plan is to delay any fallout until after brexit is a fait accompli. (For which he expects to be rewarded by hard line brexiteers) – Guran Oct 8 at 10:25
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    BoJo only needs to convince one EU27 state. It doesn't need to be a key state either; Malta is just as able to veto extension as Germany. – Martin Bonner supports Monica Oct 8 at 14:57
  • @MartinBonner the idea that it has to be a few key states is probably speculating that if there is an attempt to by the UK to convince a single state to veto, then political pressure will be brought to bear on that state by the remaining EU27. If nothing else to prevent the idea that EU vetos can be bought, which would be destabilising to the EU project long term. – Jontia Oct 8 at 15:15
  • In theory yes. But in practice a “no” from Germany or France carries a lot more weight. – Guran Oct 8 at 18:43
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A Brexit extension needs to be approved by all EU member states. Johnson could convince an existing member state to veto the extension request:

Boris Johnson hopes Hungary will veto Britain’s potential request for a Brexit delay, according to reports.

This is a special case of asking but not honestly so.

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    "Johnson could convince an existing member state to veto the extension request:" - risking breaching the public law principle and making a lie of his assurances to the Scottish Court of Session, which will have legal and political consequences. – Lag Oct 8 at 17:05
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    @Lag Not much would surprise me anymore. – gerrit Oct 8 at 17:22
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The political answer is that he may well know he can't do both, but will lay the blame for requesting an extension and any subsequent Brexit outcomes unfavorable to his base at the feet of those who forced it. The next part is more speculative; the more dramatic way of achieving that would to resign at the 11th hour (which may not be so clear-cut) and recommend that the Queen appoint Corbyn as leader of the opposition as PM and thus foist the bill on those who wrote it, the safer bet writing the letter with the rightful claim of having being forced.

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The UK government cannot do both those things. Boris Johnson and others in his government who say it can are lying.

Guran's suggestion that the government could try to dissuade the EU from granting the extension would not work. The intent of the law is clearly to sincerely ask for an extension and any attempt to frustrate that would be challenged in court.

The other big issue is that the government does not have a majority in Parliament and the opposition would very likely win a vote of no confidence if it tried to crash out. Given that proroguing Parliament again near the leaving date is unlikely to be accepted by the courts the government can do very little to prevent that.

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    If I may suggest a source to add to your answer, see this egregious attempts at sabotaging the entire process that is making headlines this morning: theguardian.com/politics/live/2019/oct/08/… twitter.com/SamCoatesSky/status/1181498839716503553 – Denis de Bernardy Oct 8 at 10:01
  • @DenisdeBernardy I'm having trouble working out the point you're making with the links. They seem to be talking about how the EU will not let the UK leave the Customs Union easily because of the NI issues. Which is making negotiations difficult and has for 3 years. It doesn't follow from that, that the EU would block an extension. The answer's point is the EU will grant an extension, and indeed doing so will keep NI in the Customs union as the statements "sabotaging the process" points out is the major problem at the moment. – Jontia Oct 8 at 15:08
  • "Guran's suggestion that the government could try to dissuade the EU from granting the extension would not work. The intent of the law is clearly to sincerely ask for an extension and any attempt to frustrate that would be challenged in court." But whether said challenge would work is not simple at all. – Display name Oct 8 at 15:22
  • @Jontia: Both links are anonymous quotes by a number 10 insider (that is widely considered to be Cummings) that have been making headlines and generating angry reactions throughout the day. The first is particularly interesting in that, in spite of all the vitriolic threats against the EU and the comical attempts to grasp at straws to avoid following the law, there's an implication towards the end (which Andrew Sparrow raises) that actually, number 10's hands are tied. Regarding both I think the answer would benefit from raising that number 10 is trying to sabotage the whole thing but can't. – Denis de Bernardy Oct 8 at 16:03
  • @DenisdeBernardy thank you, I'd formed the impression from your first comment that it was the EU trying to sabotage the whole thing. – Jontia Oct 8 at 16:08
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Lord Owen presents an interesting mechanism by which the UK can sidestep the Benn Act, and leave the EU on October the 31st... by transitioning via the EEA Agreement... Boris should apparently write to all 31 other EEA Agreement signatories, and the 3 non-EEA signatories to state that regardless of any agreement with the EU or not, the UK will remain in the EEA Agreement, and in the governance pillar of EFTA. This will mean there is smooth transition period via the EEA, and if there is a continues WA negotiation, it will be with the UK already outide the EU in November.

https://brexitcentral.com/the-legal-way-to-exit-the-eu-by-31st-october-is-through-a-transition-in-the-eea/

It is just possible as of today that by 17th/18th October at the European Council meeting, using perhaps even its well-tried mechanism of stopping the clock, an agreement on a EU-UK Withdrawal Agreement under Article 50 can be achieved and the UK leaves the EU on 31st October with Conservative, DUP, some Labour and Independent MPs’ support. That would be by far the best outcome. Yet it is much more likely that there will not be a positive response in Brussels and that there will be no EU-UK Withdrawal Agreement before the House of Commons for the fourth time.

In which case, on 19th October, on instructions from the European Union (Withdrawal) (No 2) Act 2019, more commonly referred to as the ‘Benn’ Act passed into law on the 9th September, the Prime Minister will be forced to write to the EU asking for an extension under the terms of Article 50. But issuing that letter cannot preclude the executive taking other legal actions to protect UK national interests. A rather neglected part of the full Supreme Court judgment on prorogation in paragraph 55 says remember “always that the actual task of governing is for the executive and not for parliament or the courts”. Extension is a device to delay again a decision. It probably does stop a so-called ‘no deal’ under Article 50 but it need not stop the UK leaving on 31st October.

What we need to do before writing any extension letter is for the UK Government to write, preferably now, to all of the 31 other countries who are contracting parties to the European Economic Area Agreement (EEAA), as well as to the EU, indicating that whether or not an extension is granted by the EU, the UK intends to continue in the EEAA as from the 31st October. A separate letter to the three non-EU EEAA members would also ask that the UK can participate in the EFTA governance pillar. If the extension is granted by the EU, the UK will have to continue to talk about a Withdrawal Agreement but it will then be in tandem with the UK being no longer in the EU and still being a contracting party to the EEAA.

Preparations for an exit from the EU on 31st October 2019 must not be reduced but stepped up. The Government has to do this for there is no doubt that some MPs and some in the EU see an extension as the mechanism for the UK to remain in the EU. It is a well-used technique in the past for other EU countries which after unacceptable referendum decisions were subjected first to delay and then forced to repeat referendums. Fortunately, continued membership of the EEAA for a transition period outside the EU can only be challenged in law within the Vienna Convention on International Treaties which the UK will fight. In the EEA Single Market there will be no need for the UK to take recourse to WTO tariff schedules for intra-EEA trade. Irish border problems associated with leaving the EU would be more manageable by virtue of the regulatory harmonisation on SPS and other trade issues that the continued membership of EEA would bring. Even some problems over cross-border customs duties could be reduced and it would be wise for the UK Government to start to unilaterally implement in Northern Ireland the new cross-border trade and customs provisions suggested to the EU as part of the Withdrawal Agreement by Prime Minister Boris Johnson.

Throughout the last three years I urged Theresa May not to foreclose the option of transitioning out of the EU through the EEAA option as we leave the EU because I believe all of Europe would benefit from an EEA transition, rather than to leave with no deal at all. It is important to recognise that the former Prime Minister came very close in March 2018 to submitting the necessary letter giving the mandatory 12-month notice, but at the last moment our Ambassador in Oslo was stood down from delivering the signed letter from Theresa May. That letter would never have been even contemplated if it was not thought to be legally desirable before signing a Withdrawal Agreement under Article 50 a year later, as she planned to do.

Without having delivered the letter, the former Prime Minister has fortunately, intentionally or unintentionally, left open the option of our continuing membership of the EEA but outside the EU. In an EU extension period, the UK can compare any likely Withdrawal Agreement stemming from those talks with continuing in the EEAA, having control of our own fishing negotiations on conservation and other fishing matters and starting our own trade negotiations with other non-EU countries worldwide.

Single Market transitional arrangements underpinned by the European Economic Area Agreement is something which we were anyhow continuing under the terms of all the drafts of the Withdrawal Agreement so far, albeit in an attenuated form, since it prevents us from exercising our rights on fishing and to enter free trade agreements. This relationship to the EEA was purposely obscured for those MPs who wanted to pretend that there was no involvement with the Single Market for a transition period in all the three Withdrawal Agreements offered to us by the EU. Had we accepted without giving the statutory notice, we would have claimed it was justified by saying de facto we were still in the EEAA in the Withdrawal Agreement. The minor legislative changes necessary eventually for completing this move for the UK leaving the EU simply mirror the changes but in the opposite direction to when Austria, Finland, and Sweden – members of EFTA – acceded to the EU. The changes in legislation then were so minor that the legislative changes to the Treaty were not completed for nine years. So, there is no need at this stage to put these minor changes about non-EU membership into the European Union (Withdrawal) Act 2018 which states we are leaving our current status as EU members of the EEA. It is noteworthy that Croatia is already in a different category for EEA membership called ‘provisional’. What is being done is making a minor adjustment to an existing Treaty and such international documents quite often only make the legislative adjustments much later.

Given the build-up of negativity in the EU over whether a Withdrawal Agreement under Article 50 can be negotiated twenty days before the 31st, now is a good time to indicate to all EEA members, including the three non-EU members, that we will be continuing our membership but as a non-EU member after 31st October. This non-EU EEAA transition period can in no way be reasonably depicted as ‘crashing out’ of the EU. In the absence of agreement under Article 50 it takes every possible measure open to us to soften leaving while not being forced into an EU customs union. It renders the Irish backstop null and void. which all along has in reality challenged the core principle of consensus between the parties to the Good Friday Agreement. After a period of adjustment, non-EU EEA membership for the UK during the transition offers a better chance of restoring consensus in Northern Ireland and it is a weakness in the Good Friday Agreement that the Assembly can stay suspended for such a long period and one we all need to try to bring to an end.

What was never given any civil service consideration by David Cameron’s Government was Article 50. He simply announced we would exit through it without any understanding of the very nature of Article 50. It is not a conventional international negotiation. It was designed by two distinguished figures, the former UK diplomat, Lord Kerr of Kinlochard, and by the former Italian Prime Minister, Giuliano D’Amato, both ardent federalists who have made it abundantly clear in public and private that their design of the Article 50 for the Lisbon Treaty was deliberately weighted against the country wishing to leave the EU, in a way that no sensible government would ever invoke it. I have never ceased to argue that the UK should not have used Article 50 of the Lisbon Treaty, since it was a mechanism fraught with so much difficulty for us and that we should have exited through the arbitration procedures within the terms of the Vienna Convention on International Treaties.

The crucial error that the UK Government made in presenting their case before the Supreme Court which started on 17th September 2019, following the Government’s decision on a long prorogation of Parliament on 9th September, was in not demonstrating that the concept of parliamentary sovereignty involves much more than just how long and when Parliament sits. It involves governing in a complex, increasingly international world. We in the UK have evolved over the centuries two separate systems: firstly a separation of powers between the judiciary and Parliament; and, secondly, a fusion of powers between the executive, consisting mainly of MPs on the frontbench of the House of Commons, and the official Opposition who communicate through the “usual channels” and backbench MPs from different parties as well as a few independents. The current deadlock in Parliament and postponement of exiting the EU after the referendum, which has gone on for three years, has meant that the functioning of the fusion of powers between the executive and MPs has broken down and that should have been stated from the outset by government lawyers to the Supreme Court.

The fact that the Withdrawal document proposed by 27 EU countries has been defeated three times by the present Parliament raises profound questions for the government about UK MPs readiness to ever endorse the EU referendum decision. This political change in the conduct of government and accountability to Parliament following a referendum should have been the central argument raised by government lawyers during the hearings in the Supreme Court to explain the background to the decision of the government on prorogation. Nor did they bring before the Supreme Court the Government’s view, repeatedly expressed in Parliament and elsewhere, that Speaker Bercow, whose favourable views on the UK’s continued membership of the EU he had made abundantly clear, had called in question the most precious attribute of a Speaker – namely, their impartiality. Nor did the government in the Supreme Court question in depth the legality of the very recent but highly relevant changed procedure of the House of Commons allowing the ‘Benn’ Act to pass rapidly into law on 9th September 2019. Nor did they challenge the Cooper/Letwin Act passed earlier. The Supreme Court was never told in unequivocal terms that prorogation was a failsafe against this type of legislation affecting the ability of Her Majesty’s Government to fulfil the referendum result through Article 50. Now it may be argued these events coming after prorogation were not relevant to the case, but clever advocacy could have got around that objection.

The UK executive has had, over many centuries, powers in relation to Treaty negotiations to preserve the confidentiality of their negotiating position, to trade positions around difficult compromises and settle on an overall deal without the interference of Parliament in the negotiating process. But the Supreme Court is not like the US Supreme Court; it does not have the power to ‘strike down’ the ‘Benn’ Act. It is the last Act which is the law and our Supreme Court does not have the power to declare an Act of Parliament illegal. The US Supreme Court does have that power as does the French Constitutional Court. For this reason, it is fanciful talk to say we can ignore the ‘Benn’ Act. We have to circumvent it with another legal way of leaving the EU and what I propose is, I believe, the only way.

Even though under ‘Benn’s’ European Union (Withdrawal) (No 2) Act 2019 ordering the Prime Minister to write asking for an extension of Article 50 in the event of no agreement on 19th October, when it may be clear to the UK Government and even the 27 EU governments that there is no realistic chance of reaching an Agreement under Article 50, the UK has to send the letter. If the 27 EU countries were wise they would in this situation refuse any extension request, and accept the UK’s intention to leave the EU under the EEAA and cooperate with the UK on this new transitional exit that would be to the mutual advantage of all countries in the EEAA.

All the hyperbole and drama from the Remain faction, will be - in a stroke - neutralised, and a GE can be held, and a fresh set of comedians can be admitted into the Pantomime of Parliament.

Sorted.

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    Pretty sure that being in the EEAA is against the red lines set up by Theresa May and endorsed by Boris Johnson. There's no reason to believe the non-eu EEAA countries would be willing to let the UK join. Given the relative size of the UK and those countries and the UK's demonstrated 'negotiating' principles I find it unlikely they would accept the UK into the group to see their own issues submerged under UK postures at any future negotiations. That is ignoring the issue that such a move might be considered "frustrating" the Benn Act and therefore unlawful. In short, this seems unlikely. – Jontia Oct 9 at 10:39
  • Article 127 of the EEA Agreement... "Article 127 Each Contracting Party may withdraw from this Agreement provided it gives at least twelve months' notice in writing to the other Contracting Parties.Immediately after the notification of the intended withdrawal, the other Contracting Parties shall convene a diplomatic " efta.int/media/documents/legal-texts/eea/the-eea-agreement/… Notice hasn't been given yet, and it can be given, providing a 1-year soft-landng transition, regardless of any EU WA extension. – Rinky Stingpiece Oct 9 at 11:08
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    Wikipedia which is obviously a non-expert summary says that "The EEA Agreement specifies that membership is open to member states either of the EU or of the EFTA." If the UK is not a member of the EU or the EFTA it cannot be a member of the EEA. Joining the EFTA requires approval of EFTA council. Is there any indication they would approve? EFTA memebership also does not automatically mean EEA membership (same link). So, then what? – Jontia Oct 9 at 12:27
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    It very much seems the Government does not agree with your, or rather Lord Owen's analysis. Commons Library "However, there is considerable opinion that once the UK leaves the EU, the whole EEA Agreement will automatically cease to apply to the UK, because the UK is a member of the EEA only by virtue of its membership of the EU. This is the UK Government’s view (see section 9.2 below). " – Jontia Oct 9 at 15:58
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    Indeed, that's why Lord Owen's conclusions should be treated carefully. The linked PDF supplied Article 128(1) as the relevant portion that links EU and EFTA membership to EEA membership. The European Union (Withdrawal) Act 2018 makes the same assertion, that EEA membership will automatically lapse alongside EU membership. The Commons Library paper above notes "The Court of Justice of the European Union (CJEU) would have ultimate responsibility to interpret and rule on the EEA Agreement in cases concerning the EU Member States." So I would very much advice Lord Owen to take this to the ECJ. – Jontia Oct 9 at 16:17
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Legally, there are a lot of unsettled questions. I'm unaware of any other time a British PM has been forced by law to act against the central pillar of his program. Therefore, no court has had to decide just how far the PM is or is not required to go in such a situation.

The law forces forces Johnson to ask, and there is a lot of talk about it forcing him to ask "sincerely". But what does that mean, exactly? It cannot force him to want something he does not want. Suppose that Hungary decides to veto the extension. Does that mean that he was "insincere"? Or merely that Hungary decided that it's polite to say "no" to a request that someone is forced to make?

And even if a British court should decide he was insincere, the deed at that point would already be accomplished. A British court cannot require the EU to re-admit Britain.

On top of all of the above, there is the matter of elections. The opposition recently had the opportunity to fight an election over the issue of Brexit, and they chose not to.

Furthermore, one assumes Johnson has some ideas of his own that he won't share them with us unless/until he needs to.

So the answer is that Johnson has quite a lot of cards he can play.

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