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
Wednesday 29 January 2020
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.
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