Unless parliament has approved either a deal or a no deal Brexit by 19 October the so-called ‘Benn Act’ (European Union (Withdrawal) No. 2) Act 2019) requires the Prime Minister to write to the European Council seeking an extension of the period during which the UK remains a member of the EU.
As a result of the recent prorogation cases in the UK Supreme Court, and an opinion handed down this week by the Court of Session in Scotland, it looks very much like the Prime Minister has no alternative but to comply.
Despite the apparently clear terms of the Act, Boris Johnson had previously stated that he would not seek an extension beyond 31 October.
More recently, unnamed Whitehall sources have suggested that there are ways of undermining the effect of the Act.
Such comments have led some to speculate on the options available to Johnson to frustrate the purpose behind the Act – which is generally considered to be the avoidance of a no deal Brexit (but see below on this point).
The more speculative of these, such as the use of Order of Council, have dropped out of contention since government lawyers informed the Court of Session that the Prime Minister would send the letter as required by the Act.
Furthermore, through them, Boris Johnson also accepted that he was bound as a matter of law not to frustrate the purpose of the Act.
The legal position therefore seems clear and Johnson no longer appears to refute it – unless parliament approves a deal, or a no deal Brexit by 19 October there is no choice other than to send the letter.
In reaching its judgment the Scottish Court distinguished between the earlier comments made by Johnson and the assurances given before the Court itself.
It decided that the former, having been made in a ‘political context’, did not ‘give ground for reasonable apprehension of future non-compliance’ with the Act.
However, while the Court decided that it was premature for it to intervene while ‘the political debate requires to be played out in the appropriate forum’, it decided to remain engaged in the matter by requiring the parties to explain the position once more on 21 October.
It has also been reported that that the UK Supreme Court justices have cleared their diaries for the second half of October in case they need to deal with Brexit related litigation.
So there may be more case law to come.
But then there might not.
Elsewhere it has been suggested that the Benn Act is impossible to comply with as it requires not only the seeking of an extension but an extension for a stated purpose which is:
‘to debate and pass a Bill to implement the agreement between the United Kingdom and the European Union under Article 50 (2) of the Treaty on European Union and including provisions reflecting the outcome of inter-party talks as announced by the Prime Minister on 21 May 2019, and in particular the need for the United Kingdom to secure changes to the political declaration to reflect the outcome of those inter-party talks.’
This is the so-called ‘Kinnock’ amendment to the Bill and the argument runs that as there was no ‘outcome’ to the 21 May talks there can be no agreement as envisaged by the Act – it is impossible for the Prime Minister to fulfil its obligations and therefore a court would not hold him to it.
As Johnson has accepted an obligation to send the letter this argument can also be considered to have fallen away although it may still have some relevance in a practical sense.
The stated purpose of the extension is not as popularly thought to prevent a no deal Brexit but rather it is to debate and pass a Bill to implement the agreement between the UK and the EU; however, currently there is no agreement to debate during such an extension and therefore no related purpose to the extension.
The Act makes complete sense only if an agreement already exists between the UK and EU and if more time is needed for it to be considered by parliament before it can be implemented in law.
If the chances of an agreement have realistically been exhausted before 19 October (and the European Council meeting on 17 October) it may be that the EU itself or one or more member states decide to refuse the extension.
For example, Emmanuel Macron is reported to have given the UK one week to revise its plan.
It may also be that the extension is agreed to but there is little of practical use that can be done during that time if the Johnson government remains in power.
The existence of the Benn Act is itself a vote of no confidence in the Prime Minister and any extension period may well be used to bring about a change in government albeit a change that could result in the return to power of the current Prime Minister.
However, while he remains in power, an empty extension would be against Johnson’s stated intention of leaving the EU on 31 October.
So, if he has no acceptable plan for a deal, what is the cunning plan that results in him requesting an extension but not getting or not using it?
It appears that, following the Council meeting on 17 October, parliament might sit in an extraordinary session on Saturday 19 October; the same day as Johnson is required to comply with the Benn Act.
Much could happen on that day – it is unlikely that he will be sending the letter first thing!