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.
Some brief comments on the European Commission’s proposal to get a mandate to negotiate a youth mobility agreement with the UK. ec.europa.eu/commission/pre…
1. The EU is not there yet. The mandate has to be agreed by the Council of Ministers: probably by qualified majority. And it isn’t clear whether a final agreement would need to be ratified by all Member States as well as the EU itself.
2. If the EU does agree a mandate, that is likely to slam the door on any attempt by the UK to negotiate youth mobility agreements with individual Member States (because they have a duty of sincere cooperation). So any agreement would have to cover (say) 🇧🇬 as well as (say) 🇫🇷.
1. No plan to “stop the boats” (chase them into French waters, destroy them on (French?) shores) or to send refugees who do land here to other countries (safe, because otherwise UK public opinion, let alone law, won’t wear it) works without cooperation of those countries. Esp. 🇫🇷
2. Those countries won’t do deals or cooperate just because it suits the UK. And France is (and French voters are) well aware that France takes many more refugees than we do.
1. It is of course true that big business (and the professions) can be a bit politically uniform. When I started out in the early 90s, the commercial Bar ( the profession I know best) was pretty much solidly Conservative (and certainly conservative).
To the point that aspiring pupils were sometimes advised not to mention eg chairing their university Labour club in their application.
Full report Windsor Framework (WF) report by @LordsEUCom Protocol sub-committee here . I will concentrate on areas where I gave evidence to the Committee. https://t.co/eyeHRrgNjncommittees.parliament.uk/publications/4…
On State aid. I entirely agree with @jamesrwebber’s points, made separately. And with the conclusions. The basic point: Art 10 remains a serious issue for any major cross-UK subsidy programme (Green New Deal/pandemic subsidies): in practice it will have to be cleared by the EU.
It also remains potentially applicable even to measures that don’t immediately and on their face cover NI: see eg James’ car battery example.
This is a fascinating judgment that contains (in judicial language) pretty savage comments on the government’s (and in particular Kwasi Kwarteng’s) decision-making, and on its compliance with the duty of candour. https://t.co/NmPB017j68judiciary.uk/wp-content/upl…
Also some important public law legal points on the duty to consult and whether a court can refuse to quash the decision on the basis that it’s highly likely that the result would have been the same without the public law error.
Basically, the case is about the government’s decision in 2022 to remove rules that stopped employment agencies from providing workers to replace strikers. It was under a statutory obligation to consult representative bodies before it did so.