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.
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.
“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.