Boris Johnson's Brexit Ace in the Hole Revealed

-edited

The UK PM is committed to obeying a law that requires him to do something that he says he will not do. What's the catch?

The Benn Bill requires UK prime minister Boris Johnson to request a Brexit extension that Johnsosn has vowed not to do. Yet, he insists he will not break the law.

For obvious reasons, Johnson has not explained how that is possible.

Coercion

Please consider 1969 Vienna Convention: Article 51 Coercion of a Representative of State

This article deals with one of the most ancient and firmly consolidated grounds of invalidity of treaties. A treaty concluded through the coercion exerted against State representative, be it a single human being or a group thereof, is without any legal effect. Moreover, the act of coercion itself can amount to an international wrongful act.

In the video above, Jeff Taylor says the EU is not a signatory of that convention.

However, The UK is, as are some EU member states.

Johnson can submit the letter, simultaneously declaring it null and void as it by demand, against his wishes and the wishes of the UK government.

This seems ironclad to me, but once again, no one really knows how a court would rule.

I suspect this is just part of the strategy.

Entire Strategy

  1. The Queen's Speech debate starts Monday. The speech will lay out 22 new bills, proposed legislation. Debate on the Queen's speech can last up to six days. That kills time. In this case I expect Johnson will attempt to kill the entire week.
  2. If Speaker John Bercow cuts debate short, I would not rule out Johnson proroguing Parliament until after Johnson comes back from Brexit negotiations on Oct 19.
  3. Article 51: Johnson may win in the courts.
  4. Article 51: Buys time even if it loses. But the clock does not start ticking until October 19. Brexit is on Oct 31.
  5. Once we get inside the 14-day window, Johnson could refuse to resign, disallowing a caretaker government to take over.
  6. If we get to October 31 with no agreement and no caretaker, No Deal happens by default.

Moot Point?

The entire point could be moot if the EU and UK manage top agree to a deal.

As noted on Friday, Secret Brexit Negotiations in the "Tunnel" to Begin.

If Johnson comes back with a deal, especially one in which the EU says no further extensions other than to ratify the deal or not, then the Benn Bill would be rendered ineffective without any legal dispute.

Mike "Mish" Shedlock

Comments (38)
No. 1-14
Quatloo
Quatloo

My impression from what you describe is that this legal matter would revolve around: (1) whether an extension of Article 50 is a treaty; and (2) whether requiring the PM to request the extension is “coercion...through acts or threats directed against him”.

On the first issue, the argument of the Remainers would be that this is some sort of membership agreement rather than a treaty, and the extension is even more different from a treaty. Leavers would argue that this is an international agreement on conduct, which is a treaty even if it is not called one.

On the second, Remainers would argue that no threats are involved, and that the acts of drafting the letter and requiring him to send it are not directed “against” the Prime Minister; rather they are simply an expression of the will of parliament embodied in a lawful instruction. The Brexiteer argument is that in reality Johnson is being coerced to do something he does not agree with.

Finally, I’m not sure but I assume jurisdiction of the issue of validity of an extension requested by the UK and accepted by the EU would lie with the EU courts, as the UK probably agreed when joining the EU to leave jurisdiction of such issues to the EU courts. The PM would argue that the extension request was not validly made under UK law because of the Vienna Convention, and therefore it is not capable of being accepted.

While I agree this is helpful to the PM, I don’t agree it is ironclad. I hope he has more arrows in his quiver.

Mish
Mish

Editor

I essentially agree with Quatloo's position. But if this is the tactic, it is a reasonable one. And it buys times. Johnson needs to get inside the 14 day window in which he has other options.

I suspect Eurointelligence will comment on this. Anyway, my base assumption has changed in favor of a deal, so this may all be moot.

Yancey_Ward
Yancey_Ward

We do know how the UK courts will rule- let's not pretend to be stupid- they have made it clear that they will rule however they have to to prevent Brexit.

Where this argument might arise, though, is in vetoes of the extension in the EU parliament. Johnson may well already have a country in the EU willing to issue such a veto using the Treaty on Treaties as the basis for doing so.

Yancey_Ward
Yancey_Ward

I have written it several times now- if the Remainers are serious about stopping Brexit, there is really only one way- get rid of Johnson and replace him with a Remainer.

Mish
Mish

Editor

"If the Remainers are serious about stopping Brexit, there is really only one way- get rid of Johnson and replace him with a Remainer."

That is extremely unlikely. There is no majority for remain nor a majority for Corbyn nor a majority (right now) for a temp govt of any kind.

Even if there was a majority for a temp, they still have to win an election.

Johnson, if nothing else, has done a better time management job than Theresa May.

I will breathe a lot easier inside 14 days and will declare victory inside 3 days.

krage
krage
  • Boris cannot be replaced - too late for this
  • Only willing UK Gov can extend
  • So extention is only is Boris decides to do it
  • EU tactics now is to agree that "deal is almost done except asmall thing UK should do but no time left, so let's extend to continue finilizing the agreement"... and if Boris does not extend - hard Brexit is UK to blame.... as EU would be almost there...
djwebb1969
djwebb1969

Mish, I've always had a different take: that the fundamental basis of English Common Law is illustrated in the Coronation Oath and the Privy Council Oath and that the Benn Act can be nullified in the following way. There is no law specifyng there should be a monarchy - that is something "from time immemorial", i.e. dating back centuries. There is no law specifying that there should be a Parliament - that is also from time immemorial (the 13th parliament building on the pre-Conquest Witan). The Monarchy and Parliament are given in the Common Law, which is our fundamental law. Statute law is just a subset of that (and not the other way round), as Crown in Parliament modify the Common Law to update for modern circumstances. The Queen is bound by her oath to govern us "according to our laws and customs" - not laws handed down by a foreign bureaucracy. The Prime Minister may not lawfully advise the Queen to violate her oath (although Edward Heath did). The Prime Minister is bound by his Privy Council oath, which may be read on Wikipedia, making it illegal for him to seek to hand over the Queen's authorities, pre-eminences or jurisdictions to a foreign potentate (i.e. handing over legislative authority to the EU was always illegal). In this context, the Benn Act has failed to a) abolish the monarchy; b) abolish the need for the PM to adhere to the Privy Council Oath; c) abolish the prohibition against the PM advising the Queen to violate the Coronation Oath; or d) abolish the requirement for the Queen to adhere to her oath, or give her life trying to do so (as Charles I did). The 1985 Weights and Measures Act was ruled of nil effect by the courts in the Metric Martyrs case because it stepped on the 1972 European Communities Act - and although later laws are meant to repeal earlier ones, Mr Justice Lawes ruled that constitutional laws can only be repealed by express language. There are numerous old constitutional statutes relating to the Coronation Oath as well as the Treason Act that are contradicted by, but not repealed by, the Benn Act. I would urge Johnson to argue he is bound by his Privy Council Oath and that is not removed by the Benn Act. He could also advise the Queen to sack the 11 justices of the Supreme Court and replace them - an Order in Council appointing the Master of the Rolls to examine the legality of the Supreme Court verdict on prorogation could be wrapped up in a number of days and show the political bias of the court, leading to the removal of the errant judges. The Queen would have to play along - but Johnson could point out his other option would be to campaign on a manifesto commitment of an abdication otherwise, as the Queen vowed to govern us according to our laws, and cannot be allowed to back out of that. Queen Elizabeth, play along - or pack your bags!

jubejube
jubejube

I am hearing that Bercow has stepped down specifically to move into a position of interim PM, agreed recently with EU on his visit.

We heard last week that Labour, LibDem & SNP will support this so one question will be : will the Tory rebels back this? They might, as it kills Leave without guaranteeing a Labour govt.

Could the constitution accept a self selecting unelected Govt setting policy? Rather than acting solely in a caretaker capacity? Could the people?

JustASimpleMan
JustASimpleMan

Bercow being tasked as the parliamentary representative to take the extension letter to the EU, I can well believe. In fact, I'm surprised Johnson hasn't pulled the trigger on that one yet.

But Bercow as interim PM supported by the EU? I can already hear the clatter of cart wheels bringing in the gunpowder to stuff under the House of Commons. Politics as we know it would disintegrate.

I love the idea of a coercion argument against the Benn bill but if Boris was going to use it, I wonder why the government was not more enthusiastic to agree with the latest Scottish Court action wanting to force him to to comply? i.e. the accusation of a "future crime". It would have suited them to have lost the case, not won it.

.

avidremainer
avidremainer

I don't know how many times I have to say this, there is no UK constitution. The constitution is what the majority in parliament says it is at any one time. Now as to coercion. It is impossible to describe forcing anyone to obey the law of the land as coercion. For example when I was an humble Immigration Officer I arrested people whom I had a reasonable suspicion of breaking the law. From that point on, using powers granted to me by an act of parliament, I was empowered to force a suspected immigration offender to obey me. This is not coercion, it is a reasonable use of force to make an offender obey the law. Now obviously the liar does not want to obey the law of the land but if he refuses to obey the law he becomes an outlaw. This government has given assurances to the court of Sessions in Scotland that were absolute in terms of obeying the law and to break these promises would be seen as contempt of court. A UK judge can incarcerate the offender sine die until the offender purges the contempt. The Scotts' court has in any case stated that should the current Prime Minister refuse to obey the law then the court would issue a writ for the letter to be signed and delivered under its own powers. All this would concur with the law of the land. The ace in the hole is a damp squib.

Gulliverfoyle
Gulliverfoyle

Ive always said boris either

a. doesnt sign the pre formatted letter

or

b. signs it and puts Vi Coactus (V.C.) is a Latin term meaning "having been forced" or "having been compelled"

no letter is valid if its signed under duress

and court will overturn that

and were still under EU law

EU law trumps UK law

were still in the EUSSR

Yancey_Ward
Yancey_Ward

I liked your comment, but learn to value the use of the paragraph. Huge blocks of unparagraphed material is difficult for most of us to read.

George Phillies
George Phillies

Rather simpler, he sends the letter, requesting the extension, explaining that the May agreement has been rejected by Parliament three times and therefore is not on offer any more, and that the request for an extension is only to allow negotiation on a new basis: The UK will not pay any money, the UK will follow the Good Friday agreement and permit free travel and trade between the UK and Eire, Trucks traveling through the UK between Eire and the EU, will be subject to a large toll unless the EU permits them to enter without delay, and if the EU follows through with its claim that the UK is not a member of the WTO (some of us remember that one) then the EU agrees that the UK is no bound by other EU treaties, such as the CDO treaty.

Waileong
Waileong

The coercion referred to in the Vienna convention is external. Hence it's not applicable for bo.