The so-called “Rebel Alliance” of MPs opposed to a no-deal Brexit have expressed concern that Boris Johnson could exploit a legal loophole to bypass legislation aimed at preventing the UK from crashing out of the EU on October 31.
Two weeks ago, the alliance of opposition MPs and Conservative rebels passed a law which requires Mr Johnson to seek an extension to the UK’s EU membership if he fails to secure a Brexit pact at a pivotal EU Council meeting on October 17-18.
Under the Benn Act — proposed by veteran Labour MP Hilary Benn — Mr Johnson must demand such an extension if he fails to secure parliamentary approval for a Brexit deal on or before Saturday October 19.
However, Phillip Lee, the former Tory minister who recently joined the Liberal Democrats, said MPs were ready to amend the Benn Act when parliament returns after October 14 to close down potential loopholes.
“The bill is amendable,” he said, adding that MPs would take control of the Commons order paper and change the bill “if that’s what’s required.”
What is potential loophole in Benn Act?
The main concern has been raised by Jolyon Maugham QC, an anti-Brexit campaigner. He argues that if a withdrawal agreement is approved by the Commons on, or prior to, October 19, the obligation in the Benn Act for the PM to request an extension falls away.
However, Mr Maugham says further preconditions need to be met before the withdrawal agreement can be ratified and no-deal avoided. In particular, a separate act implementing the withdrawal agreement needs to be approved by parliament by October 31.
Alternatively, Mr Johnson could persuade his MPs to pass the withdrawal agreement before October 19 but then prorogue parliament for a second time, ensuring the deal could not become law before October 31. Again, a no-deal Brexit would result.
Mr Maugham says the best way to get around these risks is for Labour to make clear that it will not pass the withdrawal agreement before the extension has been agreed. This would guarantee an extension becomes obligatory, whether it is needed or not.
Could Johnson ignore the anti no-deal law?
This is the Rebel Alliance’s second concern. They fear that Mr Johnson will come back from Brussels on October 18 empty-handed, without a deal or an extension.
In this situation, MPs would be under pressure to pass a vote of no confidence in the Johnson government, setting up a caretaker administration that agrees an extension with Brussels immediately.
However, Mr Maugham is part of a group of politicians and lawyers who are also requesting a Scottish court to intervene should Mr Johnson refuse to seek a Brexit delay.
The case is still being heard by Edinburgh’s Inner House of Session. If Mr Maugham and his allies win and Mr Johnson ignores the anti no-deal law, then the court could order that a letter asking for an extension should be written by the clerk of the court on behalf of the prime minister — and sent to the EU.
Could PM apply for an extension but make it difficult for EU to agree one?
Some of Mr Johnson’s allies have suggested that he could comply with the law by asking for an extension to Article 50 — the legal mechanism by which a member state leaves the EU — but make clear in a separate side letter that Britain would try to wreck the operation of the EU if it were allowed to remain a member.
However, EU officials see only limited opportunities for a UK government to derail EU business. In the Council, the EU institution that represents national governments, most decisions are taken by qualified majority, limiting the scope for a single member state to block decisions.
The big Council topic requiring unanimity that is looming in the next few months is a decision over whether to roll over sanctions on Russia imposed after the Crimea invasion. It would be surprising if Mr Johnson wanted to side with Vladimir Putin on the matter.
Could a single EU member state veto a Brexit extension?
Many diplomats acknowledge that the EU would be reluctant to decline a further request for an extension by the UK and appear to be responsible for a chaotic exit from the EU.
The key question would be the purpose of the extension, however, and crucially how long it would be. EU members have insisted an extension would have to be for a good reason, such as fresh elections. But patience with the UK is wearing thin, and there is little appetite for a prolonged delay.
The EU is not only preparing for the start of a brand new commission in November, it wants to push forward with discussions over its forthcoming seven-year funding round, known as the Multiannual Financial Framework. Not knowing the status of the UK — which made a net contribution to the EU of £8.9bn in 2018 — is making that extremely difficult.
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