Can Boris Johnson defy the law against no-deal Brexit?

UK government sending out mixed messages about what it will do about the Benn Act

Boris Johnson’s special adviser Dominic Cummings: wants to give the impression as far as possible that the prime minister is being dragged kicking and screaming to requesting a Brexit delay against his will. Photograph: Peter Summers/Getty Images

Boris Johnson's chances of finalising a Brexit deal at an EU leaders' summit on October 17-18th are receding, and attention is turning to whether the prime minister can push the UK out of the bloc without an agreement.

Johnson insists Britain must leave the EU on October 31st, “deal or no deal”, but MPs last month passed a law that seeks to avert a no-deal Brexit on Halloween.

MPs behind the so-called Benn Act – named after Labour Party MP Hilary Benn, its chief architect – are confident Johnson will have to abide by the law, but the government has been sending out contradictory statements about what the prime minister will do.

What are Boris Johnson’s mixed messages on a no-deal Brexit?

The government stated categorically last week in correspondence with a Scottish court that Johnson will abide by the Benn Act.

READ MORE

The legislation requires him to write to the EU to request an extension to the article 50 divorce process if he has not secured MPs’ approval for a withdrawal agreement or a no-deal departure by October 19th.

The government's stance on complying with the Benn act was confirmed on Monday when the outer house of the court of session in Edinburgh rejected anti-Brexit campaigners' demands that it force Johnson to abide by the legislation, potentially through sanctions.

Lord Pentland, the judge in the case, only dismissed the campaigners' plea because the government had accepted it must "comply fully" with the Benn Act and not seek to "frustrate its purpose".

However, a senior Downing Street official suggested to reporters on Sunday that the legislation could be defied.

“The . . . act and its authors are undermining negotiations, but if EU leaders are betting that it will prevent no-deal, that would be a historic misunderstanding,” said the official.

Can the prime minister get around the Benn Act?

There has been much – inconclusive – debate about this. Those looking for loopholes in the Benn Act have suggested Johnson could override it by invoking civil contingencies legislation.

Others have said Johnson could overturn the legislation through an executive instrument such as an “order in council”, or that he could ask the EU for a Brexit delay in one letter while also writing another making clear he does not want one.

Legal experts have dismissed these potential ruses as flawed and therefore ineffectual. “The act does what it says on the tin,” said one senior MP. “It would be very difficult for the government to sidestep this.”

Could one EU member state help Johnson engineer a no-deal Brexit?

Any fresh delay to Brexit through an Article 50 extension would have to be agreed unanimously by the 27 other member states, but it is hard to see why they would refuse.

The EU has consistently said it would agree an extension for some clarifying political event in the UK, such as a general election or second Brexit referendum.

Since Johnson and Labour leader Jeremy Corbyn are both committed to an election, a request justified by plans for a poll would likely be approved by the EU27.

But at Westminster some MPs wonder whether a maverick EU leader such as Hungary's Viktor Orban might veto a further Brexit delay.

A government spokesperson in Budapest said on Monday: "The Hungarian government has not received any request regarding the possible delay of Brexit, thus there is no reason to speculate."

Maddy Thimont-Jack of the Institute for Government think tank said: "For all EU states there are much bigger issues ahead such as negotiating the EU's next [budget]. They will not want to do anything that could harm their chances in this process – or risk annoying major states like France and Germany. "

So what are Johnson’s ultimate intentions?

Johnson appears to have authorised a twin-track approach by his advisers.

On the one hand there is a core Downing Street team around chief of staff Eddie Lister that wants to abide by the law, including the Benn Act and the recent supreme court ruling that Johnson's suspension of parliament was unlawful.

On the other hand, there is a group led by Dominic Cummings, Johnson's chief adviser, that wants to give the impression as far as possible that the prime minister is being dragged kicking and screaming to requesting a Brexit delay against his will.

Johnson is preparing for an election this autumn, and if he has not fulfilled his “do or die” pledge for Britain to leave the EU on October 31st he needs to blame this on a “Remainer elite” involving parliament and the judiciary if the Conservatives are to try to see off the threat posed by Nigel Farage’s Brexit party.

But analysts said there was little doubt that Downing Street will comply with the Benn Act one way or another.

"I think the Benn Act is pretty watertight," said Catherine Barnard of the UK in a Changing Europe, a think tank. "Lots of people have been thinking about ways of getting round it, but it's been drafted by serious people." – Copyright The Financial Times Limited 2019