The EU Commission Building
The EU may have overreached themselves. On the 9th October 2019 the president of the European parliament David Sassoli suggested that an extension under Article 50 should only be granted if either a General Election or a second referendum is held during the extension period, viz:
Mr Sassoli told the European Parliament: “I had a fruitful discussion with Speaker Bercow in which I set out my view that any request for an extension should allow the British people to give its views in a referendum or an election.”
France’s Europe Minister Amélie de Montchalin backed the plan and said: “If there are new elections or a new referendum, if there is a political shift leading us to believe we could have a different dialogue from the one we have today, then an extension can be discussed.”
If the EU stick by the conditions Sassoli wants to see attached to an extension it raises the question of what exactly the European Union (Withdrawal) (No. 2) Act 2019 can force upon a Prime Minister.
The Act requires Mr Johnson to send to the EU this letter if there is no agreement between the UK and the EU:
“Dear Mr President,
The UK Parliament has passed the European Union (Withdrawal) (No. 2) Act 2019. Its provisions now require Her Majesty’s Government to seek an extension of the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty, currently due to expire at 11.00pm GMT on 31 October 2019, until 11.00pm GMT on 31 January 2020.
I am writing therefore to inform the European Council that the United Kingdom is seeking a further extension to the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty. The United Kingdom proposes that this period should end at 11.00pm GMT on 31 January 2020. If the parties are able to ratify before this date, the Government proposes that the period should be terminated early.
Yours sincerely,
Prime Minister of the United Kingdom of Great Britain and Northern Ireland”
Thus Mr Johnson is certainly obligated to seek a simple extension without conditions. But there is nothing in the Act which obligates him to accept an offer of an extension with conditions for the question of conditions is not mentioned in the Act.
The failure to mention conditions either generally or specifically might well be sufficient to negate the need for Johnson to accept the offer of an extension which had conditions attached such as those the EU had stipulated. However, there are also the tests of irrationality and unreasonableness in English law.
Lord Greene MR said this in the Wednesbury case:
“If a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere, and this kind of case would require something overwhelming. “
Lord Diplock in a case involving GCHQ said this:
“By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’. This applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at”
The idea that Johnson (or any Prime Minister) have to accept whatever conditions the EU place on an extension is clearly unreasonable because the EU could ask for anything no matter how absurd, for example the EU might demand £100 billion as a condition for agreeing to an extension or stipulate that the extension period be for many years. Both irrationality and unreasonableness would surely apply in such instances.
If the EU back the stipulation that an extension will only be granted if there was a general election or a second referendum it is objectively damaging to our democracy because it is a gross interference with UK politics and is specifically designed to further the EU’s interests and not those of the UK .
To obey the Act Mr Johnson is required to do no more than seek an extension.
I’m disgusted. It seems Boris IS basically doing a May’s WA rehashed. Again, I am disenfranchised. Disgusted with Tories, frightened that Brexit Party by splitting Leavers vote (when we get one) will let Corbyn in. Of course HoC MAY not vote the deal through. Benn Act MAY fail. Clock may run down. That is my only hope at the moment.
It is a SELL-OUT !!! The BBC confirms :—
https://www.bbc.co.uk/news/world-europe-50088300
1) Lots of it is the same
Ninety-five per cent of this revised deal is the deal agreed with Prime Minister Boris Johnson’s predecessor, Theresa May, during two years of painstaking negotiations.
Citizens’ rights. Money. Ongoing cases at the European Court of Justice. The data of EU citizens stored in the UK. Under this deal, they would all be secured.
Boris is no better than May — now we know.
We will have to rely on Nigel to get us out after all.
Sadly, I fear that Judges sympathetic to the EU would rule that Extension conditional on either a Referendum or a GE would NOT be so unreasonable as to undermine the Extension.
It is entirely plausible that Judges might say “a bit more democracy can do no harm”.
He should not be discussing anything with Bercow this is so wrong. Why is nothing being done about that man?
With the Limp Dumbs also going behind his back, how Boris will get anything done is mystifying…surely this isn’t legal?
I am at a loss as to how the losers are in charge and not the winners.
But what about spider woman and her gang?
Did you see today how ‘joe public’ took it into their own hands to remove the moronic terrorists from the Tube Line?
I can see this type of action being taken nationwide if Johnson’s capitulation on Brexit is passed by Parliament.
‘Joe Public’ may we’ll decide to treat the ‘moronic terrorist MP’s’ in exactly the same fashion – and keep the ‘Leave Train’ on the tracks.
People ask why the ‘Leavers’ have not been seen out on the streets in the same destructive force as the ‘Remainiacs’ –
well, perhaps it is because the ‘Leavers’ are actually biding their time in order to see whether they have indeed ACTUALLY finally been betrayed – THEN you will really find out how positive, strong and determined the people who won the Brexit for the UK can and WILL BE!
One of my neighbours has shown absolute disgust at the way voters have been treated recently by Parliament.
If we have been sold out by Boris, they tell me, off they go to kick some ass – London march, whatever.
This neighbour, by the way, is an other quite ordinary and docile lady aged 75.
Sounds good to me Robert.
But how about the malicious, deranged and utterly irrational conspiracy of the Remaniacs, who refuse to see that the return of a nations’sSovereignty is of paramount importance, necessity and a duty, failure to pursue diligently of which renders them liable to the law of the land