5

In the words of the Guardian,

The prime minister sent a total of three letters: an unsigned photocopy of the request he was obliged to send under the Benn Act, an explanatory letter from the UK’s ambassador to the EU and a personal letter explaining why Downing Street did not want an extension.

Any EU bureaucrat who's followed recent events in the UK knows full well that the first letter, signed or otherwise, represents Parliamentary intent, regardless of any "explanation" in the second. But legally, what people "know" may not be enough. Given that the EU is (presumably) not allowed to vote on a Brexit postponement without the UK's authorization, the exact legal definition of authorization is crucial.

Legally, can the EU accept the "obvious" meaning of these events, thereby acting as if they only received the first letter, and it was signed? If so, will they do that? By "act as if", I mean vote on postponement, not unanimously pass it. This question isn't intended to conjecture on how EU member states would participate in any hypothetical vote that may occur.

4

For now whe EU is playing a waiting game hoping it won't have to decide on that extension request. But it looks like if Westminster fails to approve the deal next week, the EU will consider Johnson's unsigned letter valid and offer an extension. What Johnson will do with that offer is a bigger question.

EU ambassadors agreed on Sunday morning that the withdrawal agreement would be sent to the European parliament on Monday. MEPs could vote on it on Thursday if the Commons has given its approval by then. [...]

The European council’s president, Donald Tusk, will spend until Tuesday consulting the heads of state and government about their appetite for a further Brexit delay. Ambassadors for the EU27 did not discuss the issue on Sunday morning.

Despite attempts by Downing Street to muddy the waters, the prime minister’s letter requesting an extension was formally accepted by Tusk on Saturday night. Johnson, speaking in the Commons earlier that day, had told MPs that he did not believe the EU would be minded to offer a further extension and that he would not negotiate one.

Nevertheless, if that Westminster deal vote is not forthcoming next week, the EU will probably approve an extension

Senior EU officials said it had been clear during the discussions among the leaders at a summit on Thursday that they would grant an extension. “Even [the French president Emmanuel] Macron in the room didn’t suggest otherwise”, a source said.

That would put the onus back on Johnson to deal with the extension he didn't really want, which certainly fits with the EU's strategy of avoiding no-deal if a deal is still possible in their view.


The EU was a bit more explicit today that they didn't disqualify the request for being unsigned; CNN paraphrased:

The fact that Johnson did not sign the letter requesting an extension "does not change anything" when it comes to the European Union deciding on that request, European Commission chief spokeswoman Mina Andreeva told journalists in Brussels on Monday.

Furthermore, Brexit Secretary Stephen Barclay just said in Parliament (live TV) that the EU considers the request valid. So we even have UK government acknowledgement/confirmation of that fact as well.

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Legally, can the EU accept the "obvious" meaning of these events, thereby acting as if they only received the first letter, and it was signed? If so, will they do that? By "act as if", I mean vote on postponement, not unanimously pass it. This question isn't intended to conjecture on how EU member states would participate in any hypothetical vote that may occur.

If both the EU (all parties that have a veto on whether or not extension can be implemented) and the UK parliament want an extension then it's fairly easy to get there. Regardless of the legal difficulties that allow the EU or the UK parliament to formally negotiate an extension, either party could put a proposal out there informally.

If there's political will for a particular type of extension on both sides then the UK Parliament can simply legislate into UK law an extension the EU has signalled it will accept and instruct (by creating a law) the UK PM to ask for and accept that deal (not necessarily in that order).

Therefore, in the end it all boils down to political will. Whatever formal requirements there are for negotiating can be preceded by informal talks which can lead to a proposal that can be forced to suit formal procedures.

In particular, this question seems to arise from the fact that the UK PM does not agree with the UK parliament on avoiding no-deal even if that means extending the Brexit deadline. As we've seen on previous occasions where the PM was instructed to write a letter to the EU, the PM has complied with such instructions from parliament (so far).

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They need not, and unless I am mistaken actually cannot do anything about it. Doing so would be a violation of the Treaty on the European Union in the strictest sense. Which, seeing how it's the EU, doesn't mean they won't do it anyway, as they are so embarrassingly desperate.

First of all, although the ever untruthful lie press went all overboard stating that Boris Johnson asked for an extension, that is not true at all. This is as untruthful as yesterday's news about "deal is settled" after Johnson and Juncker shook hands. Stating that anything was settled at that time was purely fake news. It's settled when it's been signed and ratified on both sides, not a second earlier. If that doesn't happen in time (and it doesn't look that way so far), they can shake hands all day long, it means nothing.

There exists a letter which is not signed, so it could have been written by just about anyone in an embassy, printed out on the embassy's laser on official paper, and handed over. There is no proof whatsoever that it is authentic, no proof that it is a letter written by Johnson at all, or if Johnson wrote one, the actual, untampered version that he wrote. Or, the version that he intended to send. The fact that there exists a contradicting letter strongly indicates that it is indeed very much not a letter he intended to send. Maybe that was a draft version. Or someone played a practical joke on the PM handed over a fake text instead. Can you be sure on an unsigned letter? There's a reason why letters are signed.

Further, that letter does not ask for an extension at all. Read carefully, Boris Johnson may very well be more clever than you think! It basically reads "There's this stupid law which requires me to blah blah, and therefore I inform you that they're seeking".
Note the wording: inform and seeking. Although seeking could in a different context very well be interpreted as "asking for", all that's written is truly "Bleh, I have to tell you, so I inform you that... they're like, whatever, seeking. Oh and they have a date in mind".

Nowhere does it say "I, the Prime Minister, herewith ask for" , or "the UK is herewith seeking".

Whoever wrote the letter is not actually seeking for, or asking for, an extension. It's just providing information (hearsay!) that someone else, notably the UK, is or may be seeking for something, whatever -- nothing more and nothing less.

There exists another letter which basically says the exact opposite of the former, and which is signed by Johnson. If anything, the second letter, being signed and thus demonstrably authentic, voids the first one.

There exists a third now public letter in which Johnson, again, clearly and undoubtly expresses ("made clear that I do not want more delay", and "I will not negotiate a delay with the European Union") that he did indeed not ask for an extension.

So, in summary, the UK did not ask for an extension. You cannot assume in good faith that they did when all signed documents clearly say otherwise. And thus, since an extension has not been asked for, it cannot be granted (precondition not met).

The funny thing is, Johnson did comply with EU Withdrawal Act (2) 2019 to the letter, without fulfilling the act's intent in any way. Congrats to the UK Parliament for wording it sloppily enough to allow for that to happen. Good job, guys. Awesome.
If the future of ~70 million people didn't depend on it, it would be worth laughing.

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  • 5
    -1 for the second half of the first paragraph, which is 1) blatantly opinionated and inflammatory and 2) incorrect. The EU would really prefer if the UK did something other than drive itself off the cliff but ultimately they have way less to lose than the UK does. – Shadur Oct 20 '19 at 20:47
  • "blatantly opinionated and inflammatory and incorrect" = "drive itself off a cliff... have way less to lose than the UK". What cliffs? What loss? – Rinky Stingpiece Oct 21 '19 at 1:34
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    Legally the UK did ask for an extension, but politically they objected to one. The EU is clearly aware of the weight of public antipathy towards it in the UK, evidenced by the composition of UK MEPs, and the EU is acutely aware that if it seen to be meddling in UK executive decisions the political fallout will be further antipathy towards it. Hence the EU needs a clear reason from the UK as to why there should be an extension, to ensure that the process is seen to be voluntary by the member state. The bigger picture is that the EU in in recession, and needs an external country to blame for it. – Rinky Stingpiece Oct 21 '19 at 1:40
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    This answer is bizzare, contrary to the facts and reducing the generally good standard on Poltiics here. Fundamentally, and in short, the Government, Parliament, domestic courts and the EU are all treating the extension request as a valid extension request per the so-called Benn Act. – Lag Oct 21 '19 at 13:22

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