Thread by @Usherwood

An elaboration on this

What happens if the EU adds conditions to its acceptance of a request to extend?

1/

https://twitter.com/Usherwood/status/1178964278759563264

There has been some discussion about whether the EU could require the UK to hold a general election, or a referendum, or do something else, if it wants to get the extension to 31 Jan 2020

2/

Because the Act says that if the EU accepts that date, then the UK has to accept it (Section 3(1), legislation fans: legislation.gov.uk/ukpga/2019/26/…)

3/

Some problems with this, but main one is that EU doesn't obviously have legal power to do such a thing.

Let's look at Art. 50

4/

Under Art.50(2) an extension has to be agreed by all EU states and the UK.

The wording only refers to time, not other conditions: for the previous extensions, while the EU expressed hopes about the use of the time, it set no conditions

5/

I would take this as grounds for a legal challenge to the ECJ. If government didn't want to do that, then Parliament could pass legislation requiring it to

6/

Also, there would be an argument that EU set such a condition, then that falls outside scope of Benn Act, so government would be at liberty to make up its own mind about this.

Again, if Parliament disagreed with government, it could pass legislation accordingly

7/

Thirdly, EU has no mechanism for enforcing such a condition. It's own sanctions would be refusing to agree any extension beyond 31 Jan, and/or refusing to sign a Withdrawal Agreement, neither of which would upset the current government

8/

Fourthly, even if UK agreed, then it still doesn't change basic choice to be made: leave with a deal; leave without one; don't leave at all.

Extension is just delay, not resolution

So nature of EU conditions is key

9/

If EU asks for general election or referendum, then absolutely no scope to determine outcome (and likely the circumstances would be -ve for EU's preferred outcome)

10/

If it asks for substantive concessions on WA, then UK still has power to later reject that in ratification process (not covered by Benn Act)

11/

So:
- debateable if EU has legal power to add conditions
- no sign of political inclination to do so
- likely counter-productive to EU interests
- even if it happened (it won't), then still doesn't stop UK leaving the EU

/end