SPECULATION abounds about how Boris Johnson might get round the Surrender Act, but few commentators seem to think any option is likely to succeed. Is this view shared by Downing Street? A No 10 source (thought to be Dominic Cummings) told James Forsyth of the Spectator that the government’s ‘legal advice is clear that we can do all sorts of things to scupper delay which for obvious reasons we aren’t going into details about.’ 

Yet the source implied that the letter requesting the extension would be sent, albeit in effect by Parliament and the courts without any justification for delay offered by the government: ‘Parliament is sending you a letter and Parliament is asking for a delay but official government policy remains that delay is an atrocious idea that everyone should dismiss. Any delay will in effect be negotiated between you, Parliament, and the courts . . . We will focus on winning the election on a manifesto of immediately revoking the entire EU legal order without further talks, and then we will leave.’

There would be ‘inevitable consequences’, the source added, for countries which ‘supported delay’. But with all EU member states keen to keep Brussels on side, convincing even a sympathetic leader to defy his EU masters and veto the extension feels like a long shot.

The Downing Street source seemed to agree: ‘The main effect of [the Benn Act] will probably be to help us win an election by uniting the Leave vote and then a no deal Brexit.’

Yet is there not a lawful way still to ‘scupper delay’? Most commentators seem to think that once the letter requesting the extension is sent and the extension is offered, that is that. But this misses out a vital step: the extension must be agreed by the UK government.

Now, it is true that the Benn Act requires the Prime Minister to agree the extension offered. That is its key difference from the Cooper-Letwin Act from April, which required Theresa May to do what she planned anyway and ‘seek’ an extension to June 30, but didn’t require her to ‘agree’ it. As LSE’s Robert Craig explains, that’s why Cooper-Letwin didn’t affect prerogative powers, as ‘negotiations and agreement of a new exit date were without doubt exercises of prerogative power and any Bill that sought to regulate or supplant those aspects of securing an extension would certainly have required Queen’s Consent during the passage of the Bill’. 

This is why Bercow’s ruling that the Benn Act didn’t affect royal prerogative and thus didn’t require Queen’s Consent was so controversial and nakedly partisan. Yesterday the President of the EU Parliament, David Sassoli, even confirmed that he has been working with our ‘impartial’ Speaker to frustrate the UK government’s policy to leave the EU on 31 October with or without a ‘deal’. 

When challenged on his ruling by Bill Cash during the debate, Bercow explained: ‘As no prerogative consent was required for the Bill in 2017 giving parliamentary authority to the Prime Minister to take action under Article 50 of the treaty on European Union, there is no requirement for new and separate prerogative consent to be sought for legislation in 2019 on what further action the Prime Minister should take under the same Article 50 of the treaty on European Union.’ 

This clearly conflates Parliament giving authority for something – an enabling act – with Parliament requiring the Prime Minister to do something, encroaching on the Crown’s prerogatives. Queen’s Consent was not required for the 2017 Article 50 Bill because it was authorising the Prime Minister to do something which she could have declined to do. The Benn Act, on the other hand, requires the Prime Minister to agree an extension, which, as Robert Craig explains, manifestly affects the prerogative in a relevant way.

Bercow continued: ‘The Bill before us today could require the Prime Minister to seek and accept an extension in certain circumstances, although it would still be up to the European Council to agree unanimously to an extension with the UK. In these circumstances, and I say this on the basis of professional advice, my ruling is that Queen’s Consent is not needed for this Bill.’

Here the Speaker appears to claim that prerogative is not affected because the extension decision depends on the European Council agreeing to it. But this is a transparently spurious argument, as the concurrence of another party is a common feature of any international agreement, and has no bearing whatsoever on whether prerogative powers are affected. The Surrender Bill requires the Prime Minister to ‘agree’ an extension offered, and regardless of the fact that it is up to the EU27 to offer that extension, it is up to the Prime Minister to agree it.

Boris Johnson would therefore be well within his rights to refuse under prerogative powers to agree any extension that the EU27 offers, since the Benn Act cannot require him to use prerogative powers as the Speaker has ruled that it does not affect the prerogative, and if it did he would have been able to veto it.

This refusal will of course be challenged – Cummings has apparently told colleagues that he ‘expects the last two weeks of October to be spent in the courts’. But all the government needs to do is establish that to agree to an extension is a use of prerogative power to establish that the Benn Act cannot lawfully require it of the Prime Minister, as the Speaker ruled that Queen’s Consent was not required for the Act. Any impartial court would have to rule for the government here.

Unfortunately, Spiderwoman’s court is anything but impartial.

So does that leave us with an inevitable General Election, with the government trying to blame Parliament and the courts for the unwanted delay? Possibly – but Labour might look at the polls and decide to go back on their promise to support an autumn election and instead try to push for a second referendum first. 

Then there’s the question of whether an election after the delay Boris said would never happen would deliver a Tory majority, because of the Brexit Party splitting the Leave vote. This risk has just greatly increased, since Boris has promised his MPs that the election manifesto won’t commit them to ‘no deal’.

Will this prove to be a strategic blunder? Will Boris dare to defy the Benn Act and refuse to agree the extension? Will a legal challenge to this succeed? Rarely has politics been so uncertain and with so much at stake.

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