Jolyon Maugham, the barrister and director of the Good Law Project who initiated, alongside a cross-party group of 75 MPs and peers, the Scottish legal challenge against the prorogation decision, has identified a loophole in the Benn Act.
First published in September 2019.
• The Benn Act imposes a statutory duty upon the Prime Minister (if the relevant conditions are met) to request and accept an extension of the withdrawal negotiating period.
There is a flaw in the European Union (Withdrawal) (No.2) Act 2019 (the “Benn Act”) and, if MPs want to avoid us leaving without a deal, they may need to take counter-measures.
The flaw arises in circumstances where the Prime Minister brings a Withdrawal Agreement (“WA”) to Parliament for approval. And it arises from the mismatch between the provisions of the Benn Act and those of the European Union (Withdrawal) Act 2018 (the “2018 Act”).
What follows is a slightly simplified description of the flaw, to aid readability.
To avoid the PM having to request an extension from the EU under section 1 of the Benn Act the Commons must approve the WA. If they do, on or prior to 19 October, the obligation in the Benn Act to request an extension falls away.
However, the provisions of the 2018 Act specify further preconditions, beyond approval by the Commons of the WA, before the WA can be ratified and No-Deal avoided.
Those preconditions are set out in section 13(1) of the 2018 Act and include the passing of a further Act implementing the Withdrawal Agreement (the “Further Obligations”).
Summing up, if the Commons approves the WA but these Further Obligations are not satisfied before 31 October 2019, then two consequences follow. First, the Benn Act will not apply to require the PM to request an extension from the EU. And, second, we will leave with No-Deal.
So, imagine the PM says privately to the ERG, “support my WA and I will deliver No-Deal.” In those circumstances, with the help of some Labour MPs, the Commons might approve even Theresa May’s WA.
The PM would thus have escaped the obligation in the Benn Act to request an extension and could deliver No-Deal.
He could, for example, again suspend Parliament (subject of course to the outcome of this week’s Supreme Court hearing). There is some evidence (see below) that he plans to do this. And we would leave without a deal.
Indeed, even without again suspending Parliament, he may well be able to deliver No-Deal simply by refusing to put before the Commons an Act implementing the Withdrawal Agreement. In such circumstances the Further Obligations would not be satisfied in advance of 31 October 2019 and we would leave with No-Deal.
I had been discussing the above privately with trusted MPs and friends. However, because there is circumstantial evidence, set out below, that the PM’s office is aware of this flaw, I am putting it into the public domain in the hope that MPs consider what counter-measures they may wish to take.
The best way to bypass the flaw is for MPs to refuse to approve any motion for a WA on or before 19 October. Those who want the Withdrawal Agreement should refuse on the basis that, by voting for it, they may well be delivering No-Deal.
In those circumstances, I believe the Courts, likely in consequence of proceedings afoot in Scotland, will enforce the Benn Act and require the PM to request an extension.
However, nothing is certain. There may be other flaws I have failed to spot. And the EU may refuse an extension. The situation now, as has always been the case, is that the only absolutely certain way to avoid No-Deal is for Parliament to legislate to change the default if no agreement is reached from No-Deal to revoke.🔷
The circumstantial evidence is:
● A story, reported in the Mail on Sunday, that a further suspension of Parliament is planned.
● Reports that the Prime Minister is meeting members of the ERG privately.
● Widely reported briefings that the Prime Minister plans to put a re-heated version of Theresa May’s Withdrawal Agreement before Parliament.
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