10 September 2019
The Prime Minister has told members of his Cabinet that naturally, he is to comply with the law. They in turn have told the Commons. 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:
· to find loopholes so that he complies nominally but not actually; or
· 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 arithmetic 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 self-contradictory material of this kind might flummox the EU at first, sharper minds would soon realise that Brussels had been handed unexpected discretion to impose its 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 came to law. 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 pass over 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 construction of his mandate, 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 are likely to 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 the proposition that the Commons has acted 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 claims could be devised.
Last night the Commons ran wild for the final day of the session, demanding that 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 seem set to be disappointed. Consider the extraordinary result of the most recent YouGov poll. It shows that over half of Remain voters decline to back MPs against the Government, while - as you might expect - 58% of Leavers back the Government. This morning’s spectacle of the Parliamentary session closing on competing choruses of the Red Flag, Scots wha hae and Cym Rhondda is bound further to disenchant the public. Dominic Cummings must be licking his lips.