Boris Johnson Takes "No Deal" Fight to UK Supreme Court

-edited

Boris Johnson has taken the Benn Bill legislation blocking No Deal to the UK supreme court.

The Telegraph reports Boris Johnson to Seek Supreme Court Ruling On No-Deal Brexit.

Several Government sources have told The Daily Telegraph that the Prime Minister is willing to go to the Supreme Court in an effort to avoid having to write a letter asking for a delay to Brexit, as set out in the Benn Act. The source said No 10 needed to find a legal mechanism to allow the Prime Minister to “at least say five days before [Oct 31] ‘I am literally not going to write that letter’.

“The real drama would be if Boris were in court calling it ‘the Surrender Act’. He would almost be happy if the judge said ‘you can’t call it that’.”

The Benn Act – officially the EU Withdrawal (No 2) Act but named after its architect, Hilary Benn, the Labour MP – requires Mr Johnson to ask the EU to delay Brexit if the UK cannot leave with a deal at the end of October.

Apparent Contradiction

Boris Johnson has stated many times he will abide by the law, yet not seek an extension.

Perhaps Johnson believes this is a legal battle he can win.

If so why did he not fight it earlier?

Killing Time?

Perhaps the delayed fight was on purpose, to kill time.

The key question here is whether a fight after something becomes law is as effective as blocking it upfront.

I believe, although no one really knows how courts will rule, is the Benn Bill was unlawful. It removed an explicit right of the prime minister to act on matters of trade as representative of the Queen.

Queen's Consent vs Royal Assent

Let's investigate a Legal Opinion on Queen's Consent and how it pertains to the Benn Bill.

Emphasis is original, not mine.

Queen’s Consent is a procedural requirement for any Bill passing through the Commons and Lords where the terms of the Bill would ‘affect’ the exercise of any royal prerogative if it was passed. The effect on the prerogative must be more than de minimis.

Queen’s Consent is normally a formality, because the government usually proposes (or more accurately for Private Members Bills, acquiesces to) all Bills that are successfully voted through both Houses. The current scenario could see a situation where a Bill passes in the teeth of trenchant opposition from the government.

Prerogative powers are legacy powers of the Crown that are now mainly exercised by the government. Conducting foreign affairs, and in particular the power to agree treaties and operate treaty powers, is an important part of the prerogative and is the relevant power for this post. Under that power, the UK government has agreed new treaties, and particular laws, at EU level over the last 46 years (and indeed continues to do so).

The story behind the passage of Cooper-Letwin is more complex than many realise. The drafting of the original version was masterly. Cooper-Letwin mandated the then Prime Minister (PM) to seek an extension to the Article 50 process. The word ‘seek’ is crucial. The reason it is so crucial is that it allowed the argument to be made that Queen’s Consent was not necessary for the Bill. This was because to ‘seek’ an extension does not actually have any effect in terms of changing the date of exit at EU level. Seeking an extension arguably does not ‘affect’ prerogative exercise as a matter of law.

The sheer cleverness of the drafting of Cooper-Letwin rests on the fact that it left entirely open what would happen after the extension was ‘sought’. The negotiations and agreement of a new exit date were without doubt exercises of prerogative power and any Bill that sought to regulate or supplant those aspects of securing an extension would certainly have required Queen’s Consent during the passage of the Bill.

The issue of Queen’s Consent was taken very seriously during the passage of the Cooper-Letwin Bill and was so controversial it resulted in a Formal Ruling by the Speaker. That ruling made clear that the original draft of the Bill did not require Queen’s Consent.

The Benn-Burt bill
If Benn-Burt had precisely followed the format of Cooper-Letwin and only mandated that the government seek an extension, then it would have placed no obligation on the PM to agree or accept any extension. That would remain part of the prerogative power to be exercised as the PM sees fit in his negotiations with the EU27.

However, Benn-Burt goes much further than Cooper-Letwin. It mandates that the PM must not only seek but also agree to an extension, either 31 January 2020 or another date if the Commons approves a date suggested by the EU27. Mandating that the PM agrees to an extension manifestly affects the prerogative. It is difficult to see how requesting Queen’s Consent can be avoided for this Bill. If so, it follows that the government must agree to the Bill being passed during Third Reading.

Did Johnson Voluntarily Give Up Rights?

Johnson elected to challenge the legislation now instead of denying Royal Assent and Queen's Consent upfront.

I believe Johnson had a rock solid case then.

But now?

By accepting the Benn Bill without legal challenge, did Johnson give up right of Queen's Consent related to trade matters?

That's the key question.

I don't know, but we are about to find out.

Smokescreen Alternative

Is this Johnson's primary strategy of avoiding Benn?

That's the second key question.

Alternatively, this could be some sort of smokescreen to convince Remainers this is his primary means of avoiding Benn.

I suspect a smokescreen.

There is always another amusing Brexit twist.

Mike "Mish" Shedlock

Comments (13)
No. 1-8
Mish
Mish

Editor

" If there was any fairness - you should be forced to live it in it instead of infecting more sane areas with your political foolishness."

Asinine comment of the year - and obviously false too

I support reduced government and government spending. Trump ought to try it.

I am against public unions and have been all my life. Never once voted for a union candidate which makes 2banana a liar.

Trump did nothing on that score. Nor did he propose bankruptcy reform which easily would have passed.

For that, 2banana exposes his anti-Mish bias to the nth degree.

He is clearly a delusional "Trump can do no wrong kind of idiot" hiding behind a TDS accusing mask.

And on top of it, he proposes a policy that amounts to once you are born in a blue state you cannot leave it.

2banana you are really pathetic.

Thanks for exposing yourself

Je'Ri
Je'Ri

"... although no one really knows how courts will rule ...."

Gee, I guess 11 non-elected Remain-supporting elites could render a fair ruling. Lulz. Brexit is dead, or, at best, will be BRINO.

abend237-04
abend237-04

What a delightful goat rodeo to watch. Every bureaucrat in Brussels is screeching at Boris Johnson, and every leftist in London is certain that the serfs will get it right if they can just keep them voting long enough. What if they give a Brexit crisis and nobody comes...the common people who own and run the country just keep on truckin. And all this after Brussels was high-fiving on having the UK as a colony. Some colony...

Yancey_Ward
Yancey_Ward

Really, there was never any doubt how the court would rule- either before or now, here in October. They will rule that Queen's Consent isn't needed. Indeed, if push came to shove, the court might even be willing to rule that Brexit itself is illegal.

You think I am joking, don't you?

George Phillies
George Phillies

He will write a letter. It will note that the May proposal has been rejected three times by parliament and is dead, and therefore it will be necessary to negotiate from the beginning, for which 90 days is requested. The UK will, he notes, not agree to paying the EU any money. The UK rejects all backstop proposals. There is no agreement, so the UK has not agreed to PDO. The UK recalls that the EU said three years back that the UK is not a member of the WTO any more, so it is an outsider, in particular, PDO rules will need to be renegotiated And by the way, the USA in California grows vast amounts of olives, so there is no concern about olive oil. Having said that,he is happy to begin negotiations, and , by the way, the EU budget is full of waste and fraud, so he will not be agreeing to any proposals on which the UK can vote.

The UK has recall of MPs. Does someone know the conditions, and whether Johnson could simply start recalling MPs who left his party?

Herkie
Herkie

I doubt if BJ is going to put all his, or any, eggs in Lady Hale's basket after she as much as called the queen past it, too addled to have consented to a prorogue because she allowed herself into being gulled by Johnson who the remainers claim lied to the queen about something though what that was supposed to have been we shall never know. Hale, thus taking away the queen's right to prorogue and reserving it for the court to decide, appears not to have considered even the remotest nuances of the law here, or the fact that the parliament refused a no confidence request from Johnson, as well as a general election request, she just took a meat ax to the law and tied the governments hands so that the court and parliament are no simply issuing orders to the PM and ignoring the queen. See why I despise parliamentary governments?

Mish
Mish

Editor

"Other than Wagner and his many Tesla-obsessed aliases, 2banana is probably the biggest troll here. He's not an idiot, he knows how corrupt the Fed and the bankers are, but for some reason is determined to be a partisan jackass anyway. The last few times I called him out he didn't even respond."

Would not surprise me in the least if they are the same person.

Deep Purple
Deep Purple

This is not really important.

No matter what the decision is, the opposition needs to unite and put up an interim government. Nothing can help them if they don't do this. Actually, I think it would be politically better for BoJo if he would lose the case. It would support his anti-establishment pose.