Will he, won't he?

We are in unprecedented times indeed when we find ourselves, time and time again having to contemplate whether the Prime Minister will comply with the law. Contradictory statements are repeatedly emerging from No 10- ‘we will leave on the 31st October come what may but we will also comply with the Benn Act’ (both of which cannot be true at the same time). Only time will tell what comes next, but this week’s ruling from the Scottish Court of Session puts Johnson in a bind.

In Politics

Will he, won’t he?

  • Scottish Court of Session accepts the PMs promise to obey the request to seek an extension

  • Despite contradictory briefings from No.10, there are no ‘workarounds’ the Benn Act

  • Scottish Court to reconvene on the 21st October if no letter has been sent to the EU

Before going into the Scottish courts decisions with regard to the Benn Act, a quick reminder that this piece of legislation sets out that, if no agreement has been reached between the UK and the EU by October 19, and if parliament has not approved a deal or leaving without one, then the Prime Minister is obliged to send a letter to the EU, asking for an extension. The government has repeatedly issued contradictory statements as to whether they will in fact comply with this obligation.

This week, the Scottish Court of Session held that it was not necessary to force the PM to comply with the Benn Act yet because at present there had not been any unlawfulness and government lawyers committed in court that the Prime Minister would comply with the Act. But, importantly, the judgement also warns that the PM better not break this promise and destroy the “core principles of constitutional propriety".

Then there are the “senior number 10 sources” (assumed to be Dominic Cummings) who has repeatedly told the press that the government would comply with the ‘narrow’ provisions of the Benn Act, but that at the same time, the government have ways of getting it around it. Not only does that confuse what the actual government position is on the Benn Act, but it also, as Jill Rutter writes for HuffPost, means that Downing Street “gets its message out, without having to take responsbility for it”. Johnson saying one the thing and ‘senior No.10 sources’ saying something which contradicts that means we have to constantly entertain the possibility of whether the Prime Minister will comply with the legislation passed by MPs.

An option floated by the Daily Telegraph and some ministers, including Andrea Leadsom, is that the PM might send two letters, the second asking the European Council to disregard the one required by the Benn Act. Constitutional and legal experts have been at pains to repeatedly clarify that this would be unlawful- a government cannot frustrate the purpose of a statue. End of.

Further, there are now legal parameters which Johnson is bound by if the provisions in the Benn Act is triggered. Should the PM refuse to send the letter to the EU, the Scottish Court of Session has set out that it would ‘consider authorising an official to sign the letter which the PM may have failed to do’ and that the court will also reconvene on the 21st October if no letter has been sent to the EU.

The State of the Negotiations

  • Boris Johnson and Leo Vradkard held talks this week, could a deal be reached by the 31st October?

  • UK government’s latest proposals are far from consistent with the Belfast Good Friday Agreement

We have now reached that part of the Brexit rollercoaster trip where the prospect of reaching a deal before the 31st October is considered possible. It is of course still highly ambitious to not only reach an agreement between the EU and the UK but also passing that through the UK and European Parliaments before the 31st October.

The cause for ‘optimism’ come from the talks held between Irish Prime Minister Leo Varadkar and Johnson yesterday, claiming that it may now be possible to reach a deal by October 31 deadline. We know very little of what was actually discussed or what compromises were actually discussed but the key problems that remain unsolved are around customs and consent.

Note that the Committee on the Administration of Justice (CAJ), based in Northern Ireland, wrote to Northern Ireland Secretary of State, expressing not only their overall, grave concerns about the UK government’s proposed replacement of the backstop but also the specific issue of the proposal that deals with ‘consent’ of the devolved institutions. The letter highlights how last week’s proposals is far from consistent with the Belfast Good Friday Agreement and instead ‘tailor a political veto in the hands of the DUP’. Read the full letter here. Also recommend reading Davie Prentis’, General Secretary for Unison piece in the New Statesman that highlights how the UK government’s latest Brexit proposals but the Belfast Good Friday Agreement in peril.

In Policy

The effect of prorogation: key legislative changes made with little scrutiny 

  • Parliament has been prorogued this week, meaning all pieces of primary Brexit legislation has been dropped

  • The government will instead rely on secondary legislation which is bad news for scrutiny and transparency

In the midst of this uncertainty and chaos, keeping an eye on the detail is all the more important. Luckily, Hansard Society has done an excellent analysis of how the sufficient scrutiny of statutory instruments is in short supply before ‘exit day’. Statutory instruments (SIs) are a form of secondary legislation, essentially a device that allows the government to move legislation through Parliament more quickly than passing a new Act.

Hansard Society notes that a number of Brexit-related SIs have been laid before Parliament using the urgent ‘made affirmative’ procedure- effectively a scrutiny procedure that means these SIs become law without passing them through Parliament and instead requires approval within 28 days or they would cease to be law.

Alexandra Sinclair and Joe Tomlison from the Public Law Project also highlights that while this week’s prorogation is more a routine exercise of power, all the Brexit Bills have fallen and will have to start from scratch if they are viewed as essential in the future. The consequence is of course that the Government relies on SIs to pass laws in time for the 31st October, often with less scrutiny and a higher probability of legal confusion and uncertainty.

Recommended Reading

  • Bingham Centre Rule of Law: No Deal Brexit, Business and the Rule of Law- read it here.

  • Public Law Project updated briefing on the rights of EU citizens in a no-deal Brexit- read it here

  • We are still accepting signatories to the open letter to the Prime Minister regarding the impact of no-deal on civil society. If you’re civil society organisation wishing to sign, you can do so here.

  • Brandon Lewis says EU citizens who have not applied to the settled status scheme before 2021 may be removed from the UK- read more here