ON Saturday Dominic Cummings, Boris Johnson’s de facto chief of staff, ignited a heated debate by claiming that he has a ‘different interpretation’ of the EU Surrender Bill which means the government won’t have to delay Brexit.
Brexit may therefore be set for a Supreme Court showdown, as Boris continues to insist that he has no intention of requesting a Brexit extension, and a No 10 source told the Sunday Times: ‘If there isn’t a deal by the 18th we will sabotage the extension.’
Senior Remainers such as Dominic Grieve have threatened the PM with prosecution and prison for contempt of court should he choose to defy the law.
In these circumstances, Conservative MPs including Iain Duncan Smith encouraged the PM to become a martyr. But others said they would resign the Tory whip if Boris chose to break the law.
Downing Street’s strategy of defiance appears to have been confirmed on Sunday morning by Dominic Raab, who said that the government is looking for loopholes in the Surrender Bill.
The Foreign Secretary told Sky News: ‘We will adhere to the law but we will also, because this is such a bad piece of legislation, the surrender bill that Jeremy Corbyn backed – we will also want to test to the limit what it does actually lawfully require.’
Clarifying his comments, he said: ‘I mean across the board we will look very carefully legally at what it requires and what it doesn’t require. I think that’s not only the lawful thing to do, it’s also the responsible thing to do and again I’ll repeat, that legislation is lousy.’
What could that mean? The government has not revealed the potential weaknesses it has so far identified in the Bill. But we do know it has assembled a crack legal team to sniff them out.
One of the most obvious is that the Bill was deemed by Speaker John Bercow not to affect the Royal Prerogative and thus not to require the Queen’s Consent – and therefore the express approval of the government. However, since it forces the Prime Minister not only to request but to agree to a Brexit extension it does, to quote Royal Prerogative expert Robert Craig of the London School of Economics, ‘manifestly “affect” the prerogative for the purposes of the relevant test as to whether Queen’s Consent is required.’
It has also been pointed out that the Bill incurs the UK considerable expense, and therefore should have been accompanied by a money resolution, which only the government can move.
Although the Speaker’s decision is final and cannot be appealed against, both of these aspects arguably place the law on extremely shaky constitutional ground. Even so, there is no precedent of a UK court declaring an enacted law invalid because of an error of the Speaker, even a deliberate one, so this would be uncharted territory. Indeed, the established legal principle is that ‘the courts in this country have no power to declare enacted law to be invalid’.
But is there any wiggle room? For instance, could the courts decide that it would be unreasonable to convict Mr Johnson under such manifestly irregular legislation which constitutionally ought not to have been passed at all without his agreement?
A risk is that Remainers find a way to get round Boris, such as through a court authorising a civil servant to sign the extension letter and ruling that it is in effect from the Prime Minister, as former Supreme Court judge Jonathan Sumption has suggested.
Boris has so far insisted that he has no intention of making the extension request to the EU. But is there a way of making the request, and so complying with the law, but then sabotaging it? There are at least two ways he could do that.
First, he could make the request in such an unreasonable way, and with so many threats of making himself a nuisance, that the EU have little choice but to refuse it. This may be the best course, particularly as some EU leaders are said not to want to grant the request anyway. The risks are that Boris would have to go back on his pledge not to request an extension – though if the sabotage is successful he would likely be forgiven that. Perhaps the main risk, then, is that the EU would find a way to get round the sabotage and make the offer anyway. However, Boris could still then choose to defy the law and not accept it.
Alternatively, the Prime Minister could veto the request in the European Council itself. The Surrender Bill requires the Prime Minister to request the extension from the European Council and, once the offer of the extension is made by the Council, to accept it. What it doesn’t do is require him to vote for it as a member of the European Council – which the UK still is. Although the EU often acts as the EU27 for the purposes of Brexit negotiations, from a legal point of view it is the European Council as a whole, including the UK, which makes the offer of the extension. This is why when the EU27 last offered to extend Brexit they made clear that it was done ‘in agreement with the UK’. Crucially, it would not be contrary to the EU Surrender Bill for Boris not to give his agreement here, as his role in this part of the process is not mentioned at all in the Act.
The EU appears to agree that the UK’s agreement is needed for any extension offer. The Daily Express explains: ‘EU officials have also stressed that leaders alone won’t be able to force Britain into an extension. European Council sources say that the decision only becomes legally binding after the EU27 and UK Government have reached an agreement. This makes an Article 50 extension impossible without the consent of Mr Johnson.’
In his interview with Sophy Ridge Dominic Raab appeared to concede that the PM may be forced to accept the extension, as he suggested Jeremy Corbyn and the Remainers would bear sole responsibility for it. Let us hope that this is not the government’s fall-back, and that ‘master strategist’ Dominic Cummings still has several aces up his sleeve.