THE PRIME MINISTER has told members of his Cabinet (who in turn have told the Commons) that naturally, he is to comply with the law. Let us take it that he is unable to agree a deal with the EU, that he declines to resign, but that he wishes to adhere to his 31 October deadline. This gives him just two options:A – to find loopholes so that he complies nominally, but not actually; orB – to challenge the Benn Act in the Court.
Loopholes: In the last thirty-six hours there has been much chatter that the Prime Minister could top and tail the letter he is obliged to send with material retracting it (“Please ignore the following…”). Similarly, he could send an accompanying letter of denial or other invalidating material – some have suggested analyses of the voting record of the Commons to make the point that no majority exists for any solution, though heaven knows the maths has altered in the last few days. Alternatively, the Prime Minister could simply withdraw the letter the following day.
Every such approach ends up with the Prime Minister in Court, unless the Government has established unenforceability (see below). In addition, although at first self-contradictory material of this kind might flummox the EU, sharper minds in Brussels would not be slow to realise that they had been handed unexpected discretion to impose their own interpretation on events. In and of itself, this makes such shenanigans unattractive.
Challenge in court: There may be more mileage in the notion that Government lawyers could go to Court to establish that the Benn Act should be set aside. They would argue that the House of Commons had failed to comply with its own rules, or otherwise overreached itself.
The Court would first have to agree that it has jurisdiction. To illustrate its dilemma, consider the customary judicial inclination to look at litigants’ conduct with a view to determining their good faith before the dispute arose. The nature of parliamentary stratagems makes this problematic. So too the prolonged disingenuousness on all sides, most recently with the Government proclaiming that it wanted an agreement, while giving every appearance of actually working towards “no deal”; and Parliamentary obstructionists campaigning for a brief extension, with a view to preventing leaving altogether. At this late point, let us rise above the long-fought battles about the legitimacy of the referendum outcome.
If the Court did decide to consider conduct, Government lawyers would argue that there is something odd in passing a law to instruct the Prime Minister to act against his will, when the Commons has also twice refused him an election to decide the matter. On the other hand, those defending the Benn Act would argue that the Government contrived the current crisis by using prorogation to provoke the Commons and then standing back in the Lords from any fight to hold up the Benn Bill.
If the Court declined to hear the case, its reasons might open the door for the Government to argue that it should also declare the Benn Act itself to be unenforceable. If, however, the Court accepted jurisdiction, it would look at Erskine May and other applicable rules. There may be legs to an argument that the Commons is out of order. John Redwood has argued that Parliamentarians failed to follow proper procedure by not recognising the need for a Money Resolution and negating the process of Queen’s consent. No doubt other arguments could be devised.
On its last night the Commons ran wild after the final day of the session, demanding the Government releases its private papers and communications on Yellowhammer and prorogation. Parliamentarians must be hoping that these disclosures have the effect of changing the minds of the only eccentrics still in Johnson’s corner, the voters who inexplicably continue to rally to his cause. Such hopes are likely to be disappointed. Consider the extraordinary result of the most recent YouGov poll. It shows over half of Remain voters failing to back MPs against the Government, while – as you might expect – 58 per cent of Leavers back the Government. The spectacle of the Parliamentary session closing on competing choruses of the Red Flag, Scots Wha Haeand Cym Rhondda is bound further to disenchant the public.
Dominic Cummings must be licking his lips.