Assume you are the British Prime Minister and your preference ranking on Brexit is as follows. Your primary goal is for the UK to leave the European Union (EU) on 31 October 2019 on the terms you recently proposed for a ‘New Protocol on Ireland/Northern Ireland’. If you cannot achieve this, you want the UK to leave the EU on 31 October 2019 without a deal. Your third-best option is to agree a Brexit extension until 31 January 2020 during which, ideally, your proposed deal will be finalised. You prefer option two to option three because your main aim is to ‘Get Brexit Done’. Of course, you want to comply with all the law, in particular with the so-called Benn Act. This Act requires you to seek an extension of the Article 50, Treaty on European Union (TEU) period until 31 January 2020 no later than 19 October if neither a withdrawal agreement nor ‘no deal’ have been approved by Parliament on or before the latter date. What is your strategy?
You realise that it will be close to impossible to achieve your first-best option. It takes two to tango, and even though your proposal has not been flat out rejected by the EU, getting it agreed by the EU and approved by the House of Commons on or before 19 October, the deadline under the Benn Act, seems highly unlikely. So you plan your second-best option. But how do you manage to take the UK out of the EU on 31 October and comply with the Benn Act?
The Act requires you to ask for an extension of the Article 50 TEU period until 31 January 2020. Implicitly, it probably also requires you to do this in good faith and to not make contradictory statements. Hence, you cannot request the extension and, at the same time, send another letter stating that you really do not want an extension. But there is nothing explicit or implicitin the Benn Act which reduces your political freedom on what kind of withdrawal agreement to negotiate in the extended period and what not. You are completely free to negotiate for what you believe is in the best interests of the UK.
So here is what you do: you send an accompanying letter to your extension request, stating that you are happy to finalise a withdrawal agreement along the lines of your proposal by31 January 2020. You will work day and night with the EU to get a deal which is within the ‘broad landing zone’ of your proposal. However, you will not conclude any form of withdrawal agreement that would take the UK out of this landing zone. It is either your proposal or no deal on 31 January 2020. Nothing else will do.
Now put yourself in the shoes of Chancellor Merkel, President Macron or any other head of state of the remaining EU Member States. Should you grant the extension? If you do, you appear to be trapped politically or even legally. You are trapped politically because you have agreed to an extension with the sole purpose of concluding a deal on the terms of your negotiation partner—and you do not want this. You might even be trapped legally because your negotiation partner has made his intentions explicit, and you could be estopped from trying to negotiate a different type of withdrawal agreement. The UK Prime Minister has said he only wants the extended period to negotiate the details of his proposal. You have approved this request, and now you try to drag him out of his ‘landing zone’. Is this not bad faith?
You reason that the UK Prime Minister can of course only make statements on behalf of his government. But how likely is it that you’ll face a new Prime Minister before the end of January 2020? There might be an election. But the polls show a strong lead of the Conservative Party. The House of Commons might attempt to install a different Prime Minister. But so far, Parliament has been much better in saying what it does not want than in articulating what it does want. The current leader of the opposition does not command broad support among ‘Tory rebels’.
So you consider rejecting the extension request. In this case, the UK will leave the EU on 31 October without a deal. For sure, there will be significant disruptions. But you expect these to be much more severe for the UK than for you. This provides you with greater bargaining leverage. The UK will want to conclude a decent trade deal, and you’ll make this contingent on all the key withdrawal issues—citizens’ rights, financial settlement, the Irish border problem—being resolved in your favour. This looks more attractive than negotiating a withdrawal agreement during a Brexit extension on the UK Prime Minister’s terms. Hence, you’ll reject the extension request.
Now put yourself into the shoes of a member of the House of Commons whose preference is for the UK not to leave the EU at all or to leave it only after a second referendum or to leave it based on a withdrawal agreement very different from that envisaged by the current Prime Minister. What is your strategy?
Clearly you must attempt to prevent the current government from sending the accompanying letter to the extension request. There is nothing illegal in this letter. The courts will therefore probably not assist you—nor should they. Your only safe way to achieve your goal is to install a new Prime Minister before this letter is sent.
Horst Eidenmüller is the Freshfields Professor of Commercial Law at the University of Oxford.