Has Brexit escapologist Johnson run out of tricks?
27 September 2019, by Matthew Holehouse
Boris Johnson came to power after convincing Conservative Party members that, Houdini-like, he could slip off the shackles that bound his predecessor and leap free from the EU on Oct. 31, deal or no deal.
His next trick: escaping the straitjacket of the EU (Withdrawal) No 2 Act, the legislation driven through Parliament by lawmaker Hilary Benn earlier this month that compels the prime minister to request the EU for a Brexit three-month extension if no deal has been approved by lawmakers by Oct. 19.
The law is so engirding that it even includes a draft of the letter that Johnson must write to European Council President Donald Tusk to ask for an extension, which is likely to be granted, however fatigued the rest of the EU is by Brexit.
In Westminster, meanwhile, the hunt is on for the secret key that many imagine the prime minister has palmed away.
He flatly refuses to ask for a Brexit extension, and insists the UK will leave the EU on Oct. 31. Yet, day after day he and senior Conservative figures say: “We will obey the law." This week he notoriously described the legislation as the “Surrender Act” for binding his negotiating hand, but he has refused to elaborate on how he’d get around it.
So what sleight of hand does he have planned to pull this off? In a range of briefings, allies have suggested the prime minister will not send the required letter, or will seek to sabotage it, in order to provoke a further Supreme Court showdown that will run down the clock until exit day.
It took 27 days for Gina Miller’s challenge to Johnson’s decision to suspend Parliament to get to a final ruling from the UK's top court: lightning speed for a constitutional case but too slow to halt a no deal, or so runs the argument.
But it would be a grave mistake to confuse a bespoke challenge over a genuine constitutional gray area with a point-blank refusal to comply with an unambiguous obligation in statute. The courts have the tools to see that Johnson complies, perhaps faster than his strategists might imagine.
Fast and furious
Here’s a more realistic forecast.
Joanna Cherry and Jolyon Maugham, successful co-claimants in this month’s Supreme Court challenge, have asked the Court of Session in Edinburgh to issue a pre-emptive order compelling Johnson to send the letter. If he refuses, they will ask the court to exercise “nobile officium” powers to send it on his behalf.
If the court concludes that it’s premature, and the bid fails, there will be moves in the English courts to achieve the same result. On the morning of Oct. 19, a claimant — possibly Miller — is certain to apply to the High Court in London for a mandatory order instructing the prime minister to send the letter urgently, likely within 24 hours.
It would be open to the UK government to argue that such an injunction isn’t justified, on the grounds that the claimants’ case has little chance of success, or that there's time before Oct. 31 for the courts to weigh the matter.
But this is unlikely to succeed, given the requirements of the act are explicit and the risks of delay immense, and so it's highly improbable that an order would not be issued within hours of the application.
It could be widely constructed, to explicitly prohibit the prime minister from taking any steps to undermine the letter — such as writing a second one asking leaders to refuse his first. Failure to comply would place Johnson in contempt of court and liable to imprisonment, a fine or confiscation of assets.
It would also be theoretically open to the High Court to oblige someone else — such as the Cabinet Secretary or the Treasury Solicitor, two of the most senior civil servants — to write the letter on the prime minister’s behalf or find themselves in contempt of court, and in violation of their professional obligations to uphold the law.
It would be open to the prime minister to seek an appeal, which, if successful, would release the order and allow him to rescind the letter and push ahead with a no-deal exit. A number of imaginative arguments are circulating in Westminster, but credible ones are in short supply.
One is that the Benn Act was “unconstitutional” by limiting the prime minister’s foreign-policy powers against his will, and that it could be struck down by the Supreme Court. In reality, there’s nothing unusual about the law placing an obligation on an office-holder, and even if there were, the court possesses no power to strike down legislation.
Another is that the act is incompatible with Article 50, the exit clause of the EU treaties; or the EU Withdrawal Act 2018, which severs the link between British and EU law. This, too, is wrong: Both allow the ability to delay exit day, and the Benn Act speaks directly to both.
Given the seriousness of the case, the High Court may refer an appeal directly to the Supreme Court, bypassing the Court of Appeal. But it’s not certain the Supreme Court would accept it: the court prioritizes questions of genuine legal and constitutional ambiguity, which are absent in this case.
It's also suggested that the prime minister has a power to simply do away with the Benn Act.
Former prime minister John Major suggested last night that an obscure executive decree, known as an Order of Council, could be issued to disapply the act. But this appears flatly unconstitutional as a move outlawed by provisions in the Bill of Rights of 1688.
Finally, it is also suggested that the Civil Contingencies Act 2004, legislation used for periods of national emergency, could be used to suspend the Benn Act by ministerial order. This, too, is far-fetched: the definition of emergency is explicit in the law, and would not be met by the political imperative to deliver Brexit.
The prime minister’s political credibility depends on convincing his allies — and his enemies — that he can pull off a feat of death-defying escapology and deliver an Oct. 31 exit. The more boring truth is that he's tightly bound.
His one hope is to secure a deal with the EU by Oct. 19. Chief EU negotiator Michel Barnier said today that the British still lack "workable and legally operative proposals" on Northern Ireland. Without a deal, the provisions of the Benn Act will kick in, and the courts will move quickly to enforce them. An appeal is almost certain to fail.
The prime minister has three weeks to mull over the unappetizing choice that awaits him: sign the letter and suffer the political price, resign from office, or face a genuine risk of arrest.