, 13 tweets, 7 min read Read on Twitter
@JolyonMaugham Thanks Jolyon. Just a few quick points, some of them obvious. 1/
@JolyonMaugham #Brexit has taken us into uncharted waters. (Who would have thought that a UK PM would ever prorogue #parliamentt and threaten the #ruleoflaw This means that by definition there is no precise precedent to guide us. 2/
@JolyonMaugham Furthermore legal provisions such as #Article50 may be vague and their text offer little direct guidance. The law ultimately may be uncertain until pronounced upon by a Court such as the #ECJ 3/
@JolyonMaugham The supervening reality must be remembered that even if the UK requests a #Brexit delay, it may be denied this. Under Article 50, unanimity of all member states is required. Just one vote (e.g., that of France) will stop it. 4/
@JolyonMaugham And the other Member States are getting increasingly fed up of #UK chaos. 5/
@JolyonMaugham As for the legal point, a senior No 10 official tells us ‘The EU is obliged by EU law only to negotiate with member state governments, they cannot negotiate with parliament, and this government will not negotiate delay.’ 6/
@JolyonMaugham If this is a threat to fail to comply with the Benn Act, then what this means is that #BorisJohnson will defy the #ruleoflaw and then expect the EU to accept this because they are obliged by EU laws to negotiate with him. 7/
@JolyonMaugham This forgets however that the rule of law permeates the entire Treaty. The EU cannot be expected to collaborate in lawlessness. Article 50 itself mentions that a MS can decide to withdraw from the Union in accordance with its own constitutional requirements. 8/
@JolyonMaugham In Wightman, this requirement was felt to implicitly apply to a change of mind on withdrawal. It seems logical that it would also apply to the question of an extension as well. The rule of law is not dispensible. 9/
@JolyonMaugham Art 50 stipulates that the European Council, in agreement with the Member State concerned, may unanimously decide to extend the pre-exit period. It does not however expressly stipulate that that agreeement/request must come from the UK Prime Minister. 10/
@JolyonMaugham If UK legislation stipulated that in the event of the PM failing to obey the rule of law, an official or parliamentary delegation be empowered to request a Brexit extension, there is no bar in the wording of Article 50 that I can see on this. 11/
@JolyonMaugham If the Prime Minister is defying his own State’s law in refusing to request such an extension, then there would be strong rule of law grounds for the other Member States to comply with the national (UK) legislation concerning who should represent the UK in this regard. 11/
@JolyonMaugham Ultimately, should this scenario play out, it seems likely that the matter would quickly move to the Courts, and more particularly the #ECJ. Ends/
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