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Explainer: Looking for loopholes - How could Johnson avoid delaying Brexit?

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Explainer: Looking for loopholes - How could Johnson avoid delaying Brexit?

Andrew MacAskill, Kylie MacLellan

 

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Britain's Prime Minister Boris Johnson leaves Downing Street in London, Britain, September 25, 2019. REUTERS/Henry Nicholls

 

LONDON (Reuters) - Prime Minister Boris Johnson has said he will refuse to seek a delay to Brexit, raising suggestions he could try to exploit a loophole to bypass legislation aimed at preventing the country leaving the European Union without a deal.

 

Johnson has made what appears to be two contradictory statements: he will obey the law, but will not request an extension to Britain’s scheduled Oct. 31 exit.

 

His most senior adviser Dominic Cummings said there are loopholes in the law because lawyers are debating them.

 

Under the so-called Benn Act if, by Oct. 19, the government has not won parliamentary approval for a divorce deal with Brussels or for leaving the EU without a deal, Johnson must request a delay until Jan. 31, 2020. The act even gives a text of the letter he must send.

 

So how could Johnson avoid a Brexit delay?

 

1) DOUBLE CROSS

 

Jolyon Maugham, a lawyer who is part of the legal team which defeated the government over its decision to suspend parliament, said a weakness of the law is that if a divorce deal is approved by parliament on, or prior to, Oct. 19, the obligation to request an extension will cease.

 

However, Maugham says further preconditions need to be met before the divorce deal can be ratified and no-deal avoided. In particular, a separate law implementing the withdrawal agreement needs to be approved by parliament by Oct. 31.

 

He said there could be a scenario where MPs pass the divorce deal on or before Oct. 19, and therefore Johnson is not required to write the letter, but then the subsequent legislation gets blocked in parliament and Britain leaves without a deal.

 

2) SUSPEND THE LAW

 

Former Prime Minister John Major said Johnson may bypass the law by issuing an order to suspend it until after the scheduled date of departure.

 

Major said a so-called Order of Council could be passed by ministers without the involvement of parliament or the queen. He said this tactic would be “a piece of political chicanery that no one should ever forgive or forget”.

 

3) GET EU TO REJECT EXTENSION REQUEST

 

The British government could comply with the letter of the law but not the spirit of it, by requesting an extension but seeking to get the EU to reject it.

 

It could do this in a number of ways:

 

a) Send a second letter - The law sets out the wording of the letter the prime minister has to send to Brussels to request the delay. British media have reported he was considering sending a second letter making clear the government does not actually want a delay. Legal experts have said any second letter is likely to be considered unlawful however.

 

b) Veto the extension - Any extension has to be agreed by all EU member states. Some MPs have suggested Britain could seek to veto its own extension request. Or persuade a country friendly to Britain, like Hungary, to veto it.

 

c) Threaten sabotage - The Daily Telegraph newspaper quoted a source in Johnson’s office saying Britain would make clear it would sabotage any request for delay and then the delay itself. Britain could cause havoc to EU business during the delay, for example by vetoing key decisions.

 

“Once people realise our plans, there is a good chance we won’t be offered a delay,” the source was quoted as saying.

 

4) TWO CONFLICTING LAWS

 

While the Benn Act requires Johnson to seek an extension to Brexit if parliament has not approved either a deal or leaving without a deal by Oct. 19, a different law, the European Union Withdrawal Act, states Britain will leave the EU on Oct. 31.

 

It is not clear which of these laws takes precedence.

 

Pro-Brexit Conservative lawmaker Bill Cash pointed to this in parliament on Thursday saying: “There is an apparent inconsistency between that (Benn) Act and the Withdrawal Act ... the reality is compliance is not just a simple question. It is a matter of grave importance in terms of which law is the law of the land.”

 

The government has repeatedly said only that it will comply with “the law”, without specifying which one. It may try and argue that it is following the law by taking Britain out on Oct. 31.

 

5) IGNORE THE LAW

 

Former Conservative leader Iain Duncan Smith has urged Johnson to ignore the law and said he would be a Brexit “martyr”.

 

If this happened, Johnson could be found in contempt of court and risks being jailed.

 

Anti-Brexit campaigners have filed a legal challenge in Scotland in an effort to compel Johnson to seek an extension to membership of the EU.

 

The case is being fronted by Maugham, who said this week the case could end up before the Supreme Court in mid-October. Maugham said that if Johnson refuses to seek an extension they would ask the court to make the extension application on the prime minister’s behalf.

 

6) ANOTHER LOOPHOLE?

 

It is possible the government could have identified another unknown loophole. Questioned about the delay law in parliament on Thursday, Junior Brexit minister James Duddridge said it was “not perfect”.

 

He specifically cited an amendment to the law, put forward by opposition Labour lawmaker Stephen Kinnock, which sets out that a delay should be used to debate and approve a Brexit deal based largely on the agreement reached by Johnson’s predecessor Theresa May.

 

“The Kinnock amendment that was passed, the government believes does have deficiencies and its effect is unclear,” he said.

 

Asked whether he thought the law requires the prime minister to write a letter requesting an extension, he said “The government will take legal advice on this.”

 

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-- © Copyright Reuters 2019-09-27
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stephenterry Gold Member

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Whether it's true or not, I've read that johnson is being pressured by 'big money' investors and heavy contributors to the tory party to preferably exit with a no-deal, as they have shorted the pound.

 

IMO, it's a feasible scenario  - and no doubt cummings would find a way to dump Britain first and foremost, and let johnson handle the legal flack post exit.  

 

The bottom line - it all comes down to money in the end. RIP Britain.

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Ketyo Advanced Member

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Doesn't Boris deserve to surrender bill for abuse of power and concocting Brexit an unprecentented witch-hunt to deflect attention and pressure Ukraine in his role as prosecutor general and not obey the law and privy councillors? 

Edited by Ketyo
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Loiner Gold Member

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So long as we Leave on 31st October, cleanly without being shackled to the EU and giving away our corner, I’d settle for any of the options.
I’d prefer either 4 or 5 and put the made-up-Remainer-trick-law the Benn Act to the test. So long as we are out and stay out they can moan about the legalities as long as they like.


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melvinmelvin Gold Member

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2 hours ago, SheungWan said:

Limp request for Hard Brexit

Sent from my SM-N935F using Thailand Forum - Thaivisa mobile app
 

 

dunno,

 

wish for exit EU I'd rather say

 

seems UK political establishment is pretty inept and allergic to striking a deal with EU

 

are there any reasons to expect further postponements to reach a reasonable deal?

 

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JAG Gold Member

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1 hour ago, melvinmelvin said:

 

dunno,

 

wish for exit EU I'd rather say

 

seems UK political establishment is pretty inept and allergic to striking a deal with EU

 

are there any reasons to expect further postponements to reach a reasonable deal?

 

No, the reason for continuously seeking extensions, (and I am sure that this next one won't be the last - unless there is an election during its time, which is unlikely as both the opposition and the Tory rebels will likely be losers if there is an election) is to create a climate that somehow, eventually, persuades the electorate to abandon the whole idea of leaving. In my opinion, the "genie is out of the bottle" and that will not work. However, given time, the remain campaign (which commands parliament if not the support of the electorate who put them there) will come up with a second referendum, the question(s) asked in it will be sufficiently ambiguous to allow the answers to be interpreted rather than give a simple decision.

Edited by JAG
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evadgib Ruby Member

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6 minutes ago, JAG said:

No, the reason for continuously seeking extensions, (and I am sure that this next one won't be the last - unless there is an election during its time, which is unlikely as both the opposition and the Tory rebels will likely be losers if their is an election) is to create a climate that somehow, eventually, persuades the electorate to abandon the whole idea of leaving. In my opinion, the "genie is out of the bottle" and that will not work. However, given time, the remain campaign (which commands parliament if not the support of the electorate who put them there) will come up with a second referendum, the question(s) asked in it will be sufficiently ambiguous to allow the answers to be interpreted rather than give a simple decision.

IDS made a very good point on Sophy ridge today re the People being sovereign not those muppets in Parliament.

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SheungWan Gold Member

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So long as we Leave on 31st October, cleanly without being shackled to the EU and giving away our corner, I’d settle for any of the options.
I’d prefer either 4 or 5 and put the made-up-Remainer-trick-law the Benn Act to the test. So long as we are out and stay out they can moan about the legalities as long as they like.


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Wish list whistle.


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SheungWan Gold Member

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No, the reason for continuously seeking extensions, (and I am sure that this next one won't be the last - unless there is an election during its time, which is unlikely as both the opposition and the Tory rebels will likely be losers if there is an election) is to create a climate that somehow, eventually, persuades the electorate to abandon the whole idea of leaving. In my opinion, the "genie is out of the bottle" and that will not work. However, given time, the remain campaign (which commands parliament if not the support of the electorate who put them there) will come up with a second referendum, the question(s) asked in it will be sufficiently ambiguous to allow the answers to be interpreted rather than give a simple decision.
If this, if that, spin.

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pedro01 Platinum Member

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On 9/28/2019 at 10:14 AM, stephenterry said:

Whether it's true or not, I've read that johnson is being pressured by 'big money' investors and heavy contributors to the tory party to preferably exit with a no-deal, as they have shorted the pound.

 

IMO, it's a feasible scenario  - and no doubt cummings would find a way to dump Britain first and foremost, and let johnson handle the legal flack post exit.  

 

The bottom line - it all comes down to money in the end. RIP Britain.

Probably better not to read conspiracy theories...

 

Sounds like total nonsense. 

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OneMoreFarang Star Member

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And then there is the national emergency...

 

"Increasingly MPs across the House of Commons believe Downing Street is considering using the Civil Contingencies Act 2004, which grants special powers in the event of a national emergency"

 

https://www.theguardian.com/politics/2019/sep/28/boris-johnson-invoke-civil-emergency-powers-brexit-deal

 

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evadgib Ruby Member

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3 minutes ago, OneMoreFarang said:

And then there is the national emergency...

 

"Increasingly MPs across the House of Commons believe Downing Street is considering using the Civil Contingencies Act 2004, which grants special powers in the event of a national emergency"

 

https://www.theguardian.com/politics/2019/sep/28/boris-johnson-invoke-civil-emergency-powers-brexit-deal

 

As highlighted in #9

Edited by evadgib
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Rookiescot Platinum Member

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A deal which would pass through parliament could be agreed within days if it includes staying in the single market.

This is the problem though. Brexit fundamentalists dont want to stay in the single market. 

So the entire country is being held hostage by some extremists who want a hard brexit so the UK can be turned into a tax haven for the rich.

Shorting the pound has just been the icing on the cake for these people.

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OneMoreFarang Star Member

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I read a lot of articles about Brexit and why the Brexiters think this must happen because of democracy and no surrender and all that.

 

But what I miss are articles explaining about the bright future after Brexit happens. I think the Brexiters should just explain all the wonderful things which happen after the UK leaves the EU. And especially all those wonderful things which will happen if there is no deal. It seems many Leavers love that idea. And I guess they much have good reasons to look into the bright future, or not?

 

Will there be more jobs? Higher salaries and higher pensions? No food-banks anymore? Will most people be better off than now?

 

Please Brexiters, why don't you explain to us in a few words why after (hard) Brexit everything will be so much better.

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cleopatra2 Silver Member

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19 hours ago, evadgib said:

IDS made a very good point on Sophy ridge today re the People being sovereign not those muppets in Parliament.

Does this not weaken the government case.

The people did not vote for this government or any government. They voted for an MP to represent them who may have been affiliated to a party.

If the people are Sovereign and the government wants Brexit legitimacy then the people should be asked what deal if any is acceptable to them.

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evadgib Ruby Member

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1 hour ago, OneMoreFarang said:

I read a lot of articles about Brexit and why the Brexiters think this must happen because of democracy and no surrender and all that.

 

But what I miss are articles explaining about the bright future after Brexit happens. I think the Brexiters should just explain all the wonderful things which happen after the UK leaves the EU. And especially all those wonderful things which will happen if there is no deal. It seems many Leavers love that idea. And I guess they much have good reasons to look into the bright future, or not?

 

Will there be more jobs? Higher salaries and higher pensions? No food-banks anymore? Will most people be better off than now?

 

Please Brexiters, why don't you explain to us in a few words why after (hard) Brexit everything will be so much better.

Of more interest is the revelation that our Generals are up in arms over the sellout of our armed forces to the EU from as early as 01 November lock, stock and barrel inc our nuclear deterrent.

MSM seem to have missed it but thankfully it's gaining traction elsewhere.

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