Effect of Boris Johnson’s unsigned letter to EU?

Donald Tusk confirmed by tweet on Saturday night that.

‘The extension request has just arrived. I will now start consulting EU leaders on how to react’.

There has been no ‘casting back’ by the EU, i.e. by return to sender of the actual document itself.

Therefore, in conformity with diplomatic law and practice, the communication requesting an extension has been both sent and received.

Where a communication is sent between heads of government (i.e. Prime Minister to President) by email and delivered by hand by either the ambassador, or by a member of the sender’s private office, together with an accompanying covering letter, that letter might for example say, ‘I have been asked by my Prime Minister to convey to you the enclosed message. I am of course available to convey any response or to attempt to clarify any points in the message.’

The covering letter sent by Sir Tim Barrow reads,

‘Dear Secretary-General,

As the United Kingdom Permanent Representative to the European Union, I invite your attention to the following matter.

Attached is a letter sent as required by the terms of the European Union (Withdrawal) (No.2) Act 2019.

‘In terms of the next steps for parliamentary process, Her Majesty’s Government will introduce the necessary legislation next week in order to proceed with ratification of the Withdrawal Agreement.

I would be grateful for your acknowledgement of receipt of this letter.

Sir Tim Barrow’

Therefore:

1.  the unsigned letter of request is not a draft;

2.  the unsigned letter of request has been sent; and

3.  the covering letter further notifies that ‘necessary legislation next week [will be introduced] in order to proceed with ratification of the Withdrawal Agreement’ (the ‘WAB’).

The covering letter neither qualifies nor withdraws the request contained in the communication. What is does is to notify the fact that legislation will be introduced in order to proceed with ratification of the WAB. While that may impact upon the calculus of each EU state in deciding whether or not to grant a further extension it does not affect the legal status of the request itself.

The personal letter sent by Boris Johnson to Donald Tusk states,

‘It is, of course, for the European Council to decide when to consider the request and whether to grant it. In view of the unique circumstances, while I regret causing my fellow leaders to devote more of their time and energy to a question I had hoped we had resolved last week, I recognise that you may need to convene a European Council.

If it would be helpful to you, I would of course be happy to attend the start of any A50 Council so that I could answer properly any question on the position of HM Government and progress in the ratification process at that time.

Meanwhile, although I would have preferred a different result today, the Government will press ahead with ratification and introduce the necessary legislation early next week. I remain confident that we will complete that process by 31 October.

Indeed, many of those who voted against the Government today have indicated their support for the new deal and for ratifying it without delay. I know that I can count on your support and that of our fellow leaders to move the deal forward, and I very much hope therefore that on the EU side also, the process can be completed to allow the agreement to enter into force, as the European Council Conclusions mandated.

While it is open to the European Council to accede to the request mandated by Parliament or to offer an alternative extension period, I have made clear since becoming Prime Minister, and made clear to Parliament again today, my view, and the Government’s position, that a further extension would damage the interests of the UK and our EU partners, and the relationship between us.

We must bring this process to a conclusion so that we can move to the next phase and build our new relationship on the foundations of our long history as neighbours and friends in this continent our peoples share. I am passionately committed to that endeavour.

I am copying this letter to Presidents Juncker and Sassoli, and to members of the European Council.’

While the dominant purpose of the letter appears to be tactical, i.e. to influence the decision made by EU leaders about granting an extension, it does not expressly revoke the request contained in the official communication (i.e. the unsigned letter taken together with the covering letter). Since it is a ‘personal’ letter it is arguably nothing more than a statement of intent by Boris Johnson which is not capable of impliedly revoking the official communication.

Therefore, the request has been made, and it is now up to the EU to decide. In other words, the UK Government cannot unilaterally prevent the EU from granting an extension.