Is Boris Johnson insane?
Read his speech given at Greenwich yesterday and ponder your answer to my question.
See
PM speech in Greenwich: 3 February 2020
for the text of Boris Johnson's speech.
Tuesday 4 February 2020
Wednesday 29 January 2020
The Brexit Farce: Avoiding "Mayhem Brexit" - my urgent letter of 29th January 2020 to Ursula von der Leyen and Boris Johnson
This morning I sent an urgent letter by email to the President of the European Commission and the UK Prime Minister asking them to take urgent action to avoid the entry of the UK and the EU at 23.00 GMT on 31st January 2020 into the situation of legal uncertainty and chaos that I term "Mayhem Brexit".
The text of the letter is here:
Letter of 29th January 2020 to Ursula von der Leyen and Boris Johnson
My reading of the situation is that the only way to avoid "Mayhem Brexit" is for the UK and the European Council urgently to agree an extension of the Article 50 TEU negotiation period.
If any reader can identify an additional prevention strategy please feel free to email me at killbrexitnow@gmail.com
The text of the letter is here:
Letter of 29th January 2020 to Ursula von der Leyen and Boris Johnson
My reading of the situation is that the only way to avoid "Mayhem Brexit" is for the UK and the European Council urgently to agree an extension of the Article 50 TEU negotiation period.
If any reader can identify an additional prevention strategy please feel free to email me at killbrexitnow@gmail.com
The Brexit Farce: "Mayhem Brexit" starts on Saturday
At 23.00 GMT on 31st January 2020 the United Kingdom (and the European Union) will enter a period of unprecedented legal uncertainty and chaos which I term "Mayhem Brexit".
Let me explain one important aspect of the problem of "Mayhem Brexit".
The shared assumption of the United Kingdom and the European Union is that the supposed Withdrawal Agreement of 17th October 2019 enters into force at 23.00 GMT on 31st January 2020.
One anticipated effect is that "the Treaties" (the Treaty on European Union and the Treaty on the Functioning of the European Union) cease to apply to the United Kingdom.
The UK and EU assume that the Transition Period comes into effect, so preserving for the United Kingdom functional pseudo-membership of the European Union.
One important aspect of that functional pseudo-membership is that, so the UK and EU assume, the UK will ... by virtue of the Transition Period ... continue to function as a member of the EU's Internal Market.
There is a MAJOR problem with that assumption.
"Competence" with respect to the Internal Market is explicitly a "shared competence".
Article 4.2(a) of the Treaty on the Functioning of the European Union makes that clear.
To create a lawful international agreement with the effect that the UK and the EU hope that the Transition Period will have requires that all 27 Member States of the EU27 are parties to the international agreement and that the agreement has been ratified by national parliaments and, in some EU27 members, regional parliaments.
In the absence of the Member States being parties to the supposed Withdrawal Agreement of 17th October 2019 the United Kingdom is NOT a functional member of the Internal Market from 23.00 GMT on 31st January 2020.
Whether any of the provisions of the Transition Period are legally operative is a separate, very interesting and very complicated question. I don't attempt to provide an answer here.
Let me explain one important aspect of the problem of "Mayhem Brexit".
The shared assumption of the United Kingdom and the European Union is that the supposed Withdrawal Agreement of 17th October 2019 enters into force at 23.00 GMT on 31st January 2020.
One anticipated effect is that "the Treaties" (the Treaty on European Union and the Treaty on the Functioning of the European Union) cease to apply to the United Kingdom.
The UK and EU assume that the Transition Period comes into effect, so preserving for the United Kingdom functional pseudo-membership of the European Union.
One important aspect of that functional pseudo-membership is that, so the UK and EU assume, the UK will ... by virtue of the Transition Period ... continue to function as a member of the EU's Internal Market.
There is a MAJOR problem with that assumption.
"Competence" with respect to the Internal Market is explicitly a "shared competence".
Article 4.2(a) of the Treaty on the Functioning of the European Union makes that clear.
To create a lawful international agreement with the effect that the UK and the EU hope that the Transition Period will have requires that all 27 Member States of the EU27 are parties to the international agreement and that the agreement has been ratified by national parliaments and, in some EU27 members, regional parliaments.
In the absence of the Member States being parties to the supposed Withdrawal Agreement of 17th October 2019 the United Kingdom is NOT a functional member of the Internal Market from 23.00 GMT on 31st January 2020.
Whether any of the provisions of the Transition Period are legally operative is a separate, very interesting and very complicated question. I don't attempt to provide an answer here.
Tuesday 21 January 2020
The Brexit Farce: 10 days to "Mayhem Brexit"
The Brexit Farce is entering the final countdown to "Mayhem Brexit" at 23.00 GMT on 31st January 2020.
"Mayhem Brexit" is the term I use to refer to the legally chaotic situation that will arise on 31st January 2020 if Boris Johnson and Ursula von der Leyen persist in their false position that the United Kingdom may lawfully leave the European Union on 31st January 2020.
Why do I claim that at 23.00 GMT on 31st January 2020 there will be legal chaos and uncertainty?
Legal chaos and uncertainty will occur due to the seemingly conflicting effects of international treaties:
The European Council, acting at 27, and the United Kingdom have agreed that the United Kingdom may leave the European Union at 23.00 GMT on 31st January 2020 (00.00 Brussels Time on 1st February 2020).
In reaching their agreement, the European Council and the UK failed to take into account the legal effect in Public International Law and European Union Law of the European Economic Area Agreement (EEA Agreement).
The UK has legal obligations arising from the EEA Agreement that can only be fulfilled while the UK is a Member State of the European Union.
To bring to an end its legal obligations under the EEA Agreement, the UK must give "at least twelve months" notice, under Article 127 of the EEA Agreement (EEAA).
The UK has not given such Article 127 EEAA notice so the UK is legally obliged to fulfil its EEAA obligations until (as of today's date) at least 21st January 2021.
In other words, the United Kingdom cannot lawfully leave the European Union until at least (as of today's date) 21st January 2021.
As a matter of urgency Boris Johnson and Ursula von der Leyen need to get their legal ducks in a row.
If they fail to do that and "Mayhem Brexit" occurs at 23.00 GMT on 31st January 2020 the United Kingdom and the European Union will enter an era of legal uncertainty and chaos which, as far as I know, has no precedent.
As an interim step the UK should immediately ask that an emergency meeting of the European Council is convened to consider a request from the United Kingdom that the Article 50 TEU negotiation period is extended until 31st January 2021.
"Mayhem Brexit" is the term I use to refer to the legally chaotic situation that will arise on 31st January 2020 if Boris Johnson and Ursula von der Leyen persist in their false position that the United Kingdom may lawfully leave the European Union on 31st January 2020.
Why do I claim that at 23.00 GMT on 31st January 2020 there will be legal chaos and uncertainty?
Legal chaos and uncertainty will occur due to the seemingly conflicting effects of international treaties:
- The treaties establishing the European Union - the Treaty on European Union and the Treaty on the Functioning of the European Union
- The European Economic Area Agreement
The European Council, acting at 27, and the United Kingdom have agreed that the United Kingdom may leave the European Union at 23.00 GMT on 31st January 2020 (00.00 Brussels Time on 1st February 2020).
In reaching their agreement, the European Council and the UK failed to take into account the legal effect in Public International Law and European Union Law of the European Economic Area Agreement (EEA Agreement).
The UK has legal obligations arising from the EEA Agreement that can only be fulfilled while the UK is a Member State of the European Union.
To bring to an end its legal obligations under the EEA Agreement, the UK must give "at least twelve months" notice, under Article 127 of the EEA Agreement (EEAA).
The UK has not given such Article 127 EEAA notice so the UK is legally obliged to fulfil its EEAA obligations until (as of today's date) at least 21st January 2021.
In other words, the United Kingdom cannot lawfully leave the European Union until at least (as of today's date) 21st January 2021.
As a matter of urgency Boris Johnson and Ursula von der Leyen need to get their legal ducks in a row.
If they fail to do that and "Mayhem Brexit" occurs at 23.00 GMT on 31st January 2020 the United Kingdom and the European Union will enter an era of legal uncertainty and chaos which, as far as I know, has no precedent.
As an interim step the UK should immediately ask that an emergency meeting of the European Council is convened to consider a request from the United Kingdom that the Article 50 TEU negotiation period is extended until 31st January 2021.
Sunday 24 November 2019
The Brexit Farce: Letters of 21st November 2019 to the UK Government and EU institutions
In September I asserted that the United Kingdom could not lawfully leave the European Union before September 2020.
See The Brexit Farce: The UK cannot lawfully leave the European Union before September 2020
The situation, as of today's date, is that the United Kingdom cannot lawfully leave the European Union before 24th November 2020.
In reality I do not expect the UK to be able lawfully to leave the EU in 2020.
See the new Briefing Paper in the "Brexit is doomed" series, accessible via
"Brexit (in 2020) is doomed"
On 21st November I wrote to the United Kingdom Government and to European Union figures explaining why the UK cannot lawfully leave the EU before November 2020.
In my view there have been grave failures of analysis by the UK Government and by the European Union institutions.
Copies of those letters may be accessed via the links below:
Letter of 21st November 2019 to the Prime Minister
Letter of 21st November 2019 to the Attorney General, Solicitor General and Advocate General for Scotland
Letter of 21st November 2019 to President Tusk
Letter of 21st November 2019 to President-elect Michel
Letter of 21st November 2019 to President-elect von der Leyen
The negotiation period under Article 50(3) of the Treaty on European Union needs to be extended until at least 24th November 2020.
In the above correspondence I suggested that it be extended until 31st December 2020.
See The Brexit Farce: The UK cannot lawfully leave the European Union before September 2020
The situation, as of today's date, is that the United Kingdom cannot lawfully leave the European Union before 24th November 2020.
In reality I do not expect the UK to be able lawfully to leave the EU in 2020.
See the new Briefing Paper in the "Brexit is doomed" series, accessible via
"Brexit (in 2020) is doomed"
On 21st November I wrote to the United Kingdom Government and to European Union figures explaining why the UK cannot lawfully leave the EU before November 2020.
In my view there have been grave failures of analysis by the UK Government and by the European Union institutions.
Copies of those letters may be accessed via the links below:
Letter of 21st November 2019 to the Prime Minister
Letter of 21st November 2019 to the Attorney General, Solicitor General and Advocate General for Scotland
Letter of 21st November 2019 to President Tusk
Letter of 21st November 2019 to President-elect Michel
Letter of 21st November 2019 to President-elect von der Leyen
The negotiation period under Article 50(3) of the Treaty on European Union needs to be extended until at least 24th November 2020.
In the above correspondence I suggested that it be extended until 31st December 2020.
Saturday 21 September 2019
The Brexit Farce: The UK cannot lawfully leave the European Union before September 2020
On 10th September I posted on this blog a bare assertion that the United Kingdom could not lawfully leave the European Union before September 2020.
See
The United Kingdom cannot leave the European Union before September 2020
In this post I will put a little flesh on the bones of that assertion and give access to a Briefing Paper that seeks to explain in terms of Public International Law, European Union Law and UK domestic Law why it is that the UK cannot lawfully leave the EU before September 2020.
The Briefing Paper is intended to be intelligible to both lawyers and non-lawyers. I have tried to pitch the content to both audiences.
Basically, I reject the prevailing interpretation of the timetable for UKExit, since that is based on the "simplistic interpretation" of Article 50 TEU.
I argue that to find the "correct interpretation" of the UKExit timetable one has to interpret Article 50 of the Treaty on European Union in a wider context, as required by Article 31 of the Vienna Convention on the Law of Treaties 1969.
When one finds the "correct interpretation" of Article 50 TEU, one can see that a "No Deal" UKExit is only lawfully possible when the UK makes a conscious choice to leave without a lawful Withdrawal Agreement and gives 12 months notice of that intention.
A disorderly, last-minute "No Deal" UKExit is not lawfully possible.
The current Brexit melodrama on the (erroneous) assumption that the UK can leave the EU on 31st October 2019 is merely the current manifestation of The Brexit Farce that has been underway since David Cameron made his spectacularly stupid Bloomberg speech on 23rd January 2013:
EU speech at Bloomberg
The Briefing Paper in which I explain why the UK cannot leave the European Union before September 2020 is available online here:
Briefing Paper No.2: The United Kingdom cannot lawfully leave the European Union before September 2020
See
The United Kingdom cannot leave the European Union before September 2020
In this post I will put a little flesh on the bones of that assertion and give access to a Briefing Paper that seeks to explain in terms of Public International Law, European Union Law and UK domestic Law why it is that the UK cannot lawfully leave the EU before September 2020.
The Briefing Paper is intended to be intelligible to both lawyers and non-lawyers. I have tried to pitch the content to both audiences.
Basically, I reject the prevailing interpretation of the timetable for UKExit, since that is based on the "simplistic interpretation" of Article 50 TEU.
I argue that to find the "correct interpretation" of the UKExit timetable one has to interpret Article 50 of the Treaty on European Union in a wider context, as required by Article 31 of the Vienna Convention on the Law of Treaties 1969.
When one finds the "correct interpretation" of Article 50 TEU, one can see that a "No Deal" UKExit is only lawfully possible when the UK makes a conscious choice to leave without a lawful Withdrawal Agreement and gives 12 months notice of that intention.
A disorderly, last-minute "No Deal" UKExit is not lawfully possible.
The current Brexit melodrama on the (erroneous) assumption that the UK can leave the EU on 31st October 2019 is merely the current manifestation of The Brexit Farce that has been underway since David Cameron made his spectacularly stupid Bloomberg speech on 23rd January 2013:
EU speech at Bloomberg
The Briefing Paper in which I explain why the UK cannot leave the European Union before September 2020 is available online here:
Briefing Paper No.2: The United Kingdom cannot lawfully leave the European Union before September 2020
Tuesday 10 September 2019
The United Kingdom cannot leave the European Union before September 2020
In this post I will make a succinct, surprising and startling assertion ... The United Kingdom cannot leave the European Union before September 2020.
The legal analysis which leads to that conclusion will follow in due course.
The legal analysis which leads to that conclusion will follow in due course.
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