A recent development in Brexit has provided interesting evidence of the role of ambassadors in clarifying their governments’ intentions, however contradictory they might be. It has always been easy to assume that they do this but not so easy to demonstrate.
The British parliament’s European Union (Withdrawal) (No. 2) Act 2019 – otherwise known as the Benn Act because it was sponsored by opposition MP Hilary Benn – was designed to prevent the UK from crashing out of the EU on 31 October without a deal, as non-prime minister Boris Johnson had repeatedly threatened if he could not get one. The Act required him to write a letter to the EU council president seeking an extension to UK membership until 31 January 2020 should he fail to gain the support of the House of Commons for a Brexit deal by 11pm on 19 October. And the precise form and wording of this letter was prescribed in Schedule 1, Section 1, of the Act. In the event, the government hastily agreed a deal with the EU but by 19 October had failed to win its approval by the Commons; the Benn Act duly became operative.
Johnson was in a quandary. On the one hand, he had said that he would rather ‘die in a ditch’ than delay Brexit beyond Halloween. On the other, he could hardly be seen to be breaking the law, although the temptation was clearly strong. (His Conservative Party has always claimed to be ‘the party of law and order’.) This is where Britain’s permanent representative to the EU, Sir Tim Barrow, came to his assistance.
Since the Benn Act assumed that any normal person sending an important ‘letter’ would sign it, its drafters had omitted to say that what was required of Boris Johnson was a ‘signed letter’. Accordingly, fresh from employing non-papers in the negotiations, the non-prime minister sent a non-letter to Brussels, thereby avoiding the appearance of personal responsibility for seeking the hated extension to British membership of the EU. What he sent was merely the prescribed missive copied and pasted from the Act; this not only had no signature but also appears not even to have been on No. 10 letterhead. Anyone could have sent this ‘letter’. The trick, therefore, had to be in its delivery. It was delivered by Sir Tim Barrow, who also covered it with a letter signed by himself in which he explained that the attachment was ‘the letter sent as required by the European Union (Withdrawal) (No. 2) Act 2019.’ It is true that Johnson simultaneously sent a personal (‘Dear Donald’) letter to the president of the European Council saying that actually he did not want an extension, thereby contradicting the first letter, but the imprimatur of Britain’s permanent representative to the EU had authenticated the non-letter. It was therefore with no difficulty that the council president, Donald Tusk, was able immediately to accept this as an official request for a three month extension and ignore the other one. The diplomat had got the politician out of a fix of his own making while at a critical moment clarifying the policy of the sovereign body in the British polity, Parliament, on EU membership extension.