Thread by @GeorgePeretzKC

A thread on the difficulties with legislation requiring a PM to seek an extension to the Article 50 period. This is not about how to get such legislation debated and passed (parliamentary procedure). It’s about what it can and should say.

We can assume that this legislation will require the PM to do something he really does not want to do.

Moreover, the legislation can’t require the PM to *get* an extension. It isn’t in his gift. The EU27 have (unanimously) to agree.

The “Cooper/Letwin” Act said this.

Essentially it required the PM to seek an extension to a date set out in a HoC motion.

But there are two problems. A requirement to “seek” is hard to enforce. To take a not entirely hypothetical example, the PM could surround the request with inappropriate language that caused enough irritation and offence to make his request unattractive.

You could argue that that infringed the PM’s duty to seek an extension (which must be a duty to do so in good faith): but that is a point that could be hard to establish in court.

The second problem is that the EU27 could counter-offer a different date, or attach conditions. At that point, Cooper Letwin falls silent.

The PM could say “I sought the date Parliament told me to seek. But the EU27 are offering me a different date/attaching unacceptable conditions. I’ve done what I was told to: but negotiations are now over.”

What you would have to do in order to stop that is to force the PM to go back to the HoC, to put down an amendable motion approving his decision to reject any counter proposal made by the EU27, and then to comply with any amended motion requiring him to accept it.

All this gets quite complicated. And it is constitutionally awkward (which isn’t to say Parliament can’t do it).

It effectively gives the HoC the power to direct the conduct of international negotiations in place of the usual role of the legislature in a parliamentary system, which is to hold the government to account for its conduct of international negotiations.

There is also something odd about tying a negotiator down in this way. If you have a complete lack of trust that the person negotiating for you is going to try to get what you want, the usual response is to sack them, not to give them lists of detailed instructions.

It therefore seems to me that it would be better if, behind any extension legislation, there was a realistic political threat that failure to get an extension will lead to the PM being sacked and replaced forthwith.

That political threat - if it can be pulled together - is likely to be more watertight, and less constitutionally awkward, than any clever drafting.

Excellent point by Graeme here.

Lack of time could, indeed, be another problem.

And even that original provision in the Bill didn’t deal with the real problem of a conditional extension.