The prime minister requested an extension and the rest is fluffby Raphael Hogarth / October 20, 2019 / Leave a comment
Boris Johnson says that his top priority in government is to take the UK out of the EU by 31st October. It sometimes feels like that is really his second priority. His top priority is to entertain constitutional lawyers.
On Saturday night, the British government sent three letters to the EU. The first, which was required by the “Benn Act” passed by parliament earlier this year, was a request for an extension of the Article 50 period until the end of January 2020. The second was a covering note from Britain’s man in Brussels, reminding the EU that the extension request was required by parliament. The third and final letter was the only one signed by Johnson himself: a meandering discussion of the political context for the letter, and a statement of the government’s policy.
Of the two pages of fluff that comprise that final letter, it is really one sentence that matters. “While it is open to the European Council to accede to the request mandated by parliament or to offer an alternative extension period, I have made clear since becoming prime minister, and made clear to parliament again today, my view, and the government’s position, that a further extension would damage the interests of the UK and our EU partners, and the relationship between us.” Was that unlawful?
The case against the prime minister goes as follows. It is trite law that a minister may not act so as to frustrate the purpose of a statute. As Lord Reid put it in the classic 1968 Padfield case, if a minister “so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the Court.” The purpose of parliament’s instruction that the prime minister send a letter requesting an extension was, obviously, to obtain an extension. In case there were any doubt about that, parliament specified the purpose itself: the prime minister, it said, “must seek to obtain an extension.” The offending sentence in the extra letter, the argument goes, did not seek to obtain an extension. Rather it sought to avoid one by encouraging the EU to refuse the request.
What might the prime minister say in his…