The ruses being briefed to the press will fail but that is the pointby Raphael Hogarth / September 9, 2019 / Leave a comment
Boris Johnson’s “do or die” pledge to pull the UK out of the EU on 31st October is taking him to ever stranger places. Parliament has now legislated to stop the prime minister pursuing that course unless MPs approve it, but the government trundles on undeterred. When de facto deputy prime minister Michael Gove was asked a week ago whether the government would obey such a rebel law to stop no deal, he made the astonishing decision to demur, saying that the government would wait and see what the law said before promising to obey it.
The government appeared to be saying, then, that it would only obey the law if the law was not too inconvenient. The prime minister’s spokesman appeared to backtrack when asked about this the next day, confirming that “every government adheres to the law.” The prime minister said similar in the House of Commons.
Yet a master plan briefed to the Telegraph is supposed to give the government a way to duck and dodge the effect of the “Benn bill,” which will become an Act of Parliament when the Queen gives it Royal Assent, as the government has promised that she will.
The Benn bill requires the government to seek parliament’s consent for a withdrawal agreement or for a no-deal Brexit. If the government gets parliamentary backing for neither, then it must send a letter to the president of the European Council, requesting an extension of the Article 50 negotiating period until 31st January 2020. If the EU agrees, that is the end of the matter. If the EU suggests a different date, the prime minister must agree to it unless the House of Commons tells him not to.
The Telegraph reports that the prime minister will send the required letter, but a second letter too, suggesting to the EU that it ignores the first letter—“a political explainer perhaps, as to where the government’s policy is.”
This will not work, because the EU is bound to look at the letter the UK government was required to send and sends in clear language, not the cajoling one that the government sent to muddy the waters.
In any event the plan is bound to be found unlawful. The courts are normally loth to find that a minister is acting dishonestly or in bad faith, but where a minister sends one letter intended to affirm that another is sent dishonestly or in bad faith, he gives the courts carte blanche to intervene. It is a well established principle of public law, too, that the government’s powers must be exercised for the purpose intended by parliament. Parliament’s purpose in enacting this bill is clear, and by sending his “political explainer,” the prime minister would be acting to frustrate it.
The worrying thing is that the government must know all this. If the government is really contemplating this plan, it must want a fight with the courts, and want to be found to be acting unlawfully in service of Johnson’s “do or die” Brexit mission. The prime minister says the UK is committed to the rule of law, but his is a “gotcha” version of the rule of law. His commitment looks like a commitment, until it turns out to be a ploy.