Brexit Trap Set: But Who is the Trapee?
I strongly disagree with that synopsis.
Johnson has a number of options at his disposal, some of them truly bizarre. It's the bizarre ones that have gathered the most attention.
Let's discuss all of Johnson's options along with Remainer options to circumvent them.
First let's discuss the Benn Bill and how it allegedly ties Boris Johnson's hands. That link shows the actual bill in Tweet form.
Benn's Own Synopsis
What Benn Says his bill does is easier to understand.
The politician said:“The purpose of the Bill is to ensure that the UK does not leave the European Union on the 31 October without an agreement, unless Parliament consents.
“The Bill gives the Government time either to reach a new agreement with the European Union at the European Council meeting next month or to seek Parliament’s specific consent to leave the EU without a deal.
“If neither of these two conditions have been met, however, by 19th October – ie the day after the European Council meeting concludes – then the Prime Minister must send a letter to the president of the European Council requesting an Article 50 extension until 31 January 2020.”
Mr Benn added: “If the European Council agrees to an extension to the 31 January 2020, then the Prime Minister must immediately accept that extension.
“If the European Council proposes an extension to a different date then the Prime Minister must accept that extension within two days, unless the House of Commons rejects it.”
The October 19 is a Saturday. Perhaps Commons agrees to meet Sunday the 20th.
If not, October 21.
Either way, the date is well within the 14-day window in which Parliament's hands may be tied.
14 days pertains to the timeframe and options given to a prime minister losing a motion of no confidence.
Benn Bill is Illegal - Challenge on Monday?
The Benn Bill passed the House of Lords on Thursday and a Legal Challenge May Come Monday.
The bill is clearly illegal. I discussed the legal reasons above, in detail
In short, the Bill is illegal because it strips the government of its legal rights to conduct international negotiations.
The Bill passed the House of Commons because Speaker John Bercow ruled the Bill did not require "Queen's Consent".
Undoubtedly, the Bill does require Queen's consent.
Thus, Johnson may pursue a legal challenge. But when?
Weird Turn of Events
On Thursday, September 5, I reported Another Weird Brexit Turn.
Out of the blue, after filibustering for hours, the government Whips not only halted their own filibuster but also instructed Tories to vote for the Benn Bill.
Johnson may have set a date trap.
"Never Request an Extension"
- Boris Johnson has stated he will "never request an extension".
- He also stated "I'd rather be dead than ask for a delay".
I suspect both statements are a lie especially the second.
Boris Johnson's Nine Options
- Commit Suicide.
- Submit Legislation Requesting an Immediate Election.
- Hold a Motion of No Confidence Against Himself.
- Mount a Legal Challenge Against the Benn Bill.
- Allow Royal Assent but Refuse to Comply With the Law.
- Allow Royal Assent, Request an Extension but Somehow Block It
- Ask the Queen for a Delay to Study the Legality of Benn.
- Allow Royal Assent, Request an Extension
I believe that covers all the bases.
1-Resign: This is possible but only inside a 14-day window before the Brexit legal default day of October 31. However, it is extremely unlikely as it gives up all control.
2-Commit Suicide: No Realistic Chance.
3-Submit Legislation: No Chance. This would only require 50% of Parliament to agree. But any legislation Johnson submits would be amendable with likely dire consequences.
4-Hold a Motion of No Confidence Against Himself: This is possible but only inside a 14-day window before the Brexit legal default day of October 31.
5-Mount a Legal Challenge : A "Queen's Consent" legal challenge is possible. But when? Note that "Queen's Consent" and "Royal Assent" are not the same thing. For details and discussion, please see Legal Challenge May Come Monday.
6-Allow Royal Assent but Refuse to Comply: Under this scenario Johnson simply refuses to honor the Bill.
7-Allow Royal Assent, Request an Extension but Somehow Block It: Under this scenario Johnson provides "Royal Assent" and the bill become law. This is possible, and perhaps the most likely scenario as further discussed below.
8-Ask the Queen for a Delay to Study the Legality of Benn. The purpose of this move would be to kill time and add uncertainty. Johnson would have the leisure of going along on October 14 or perhaps then asking the Queen to let the courts decide.
9-Allow Royal Assent and Honor the Extension Request: No Chance
Five Primary Options
The primary options are 4-8. Option 4 would likely occur as a result of number 6. Option 8 would morph into something else, adding uncertainty.
Let's discuss the five most likely options.
Discussion: 6-Allow Royal Assent but Refuse to Comply
Under this scenario Johnson allows the Benn Bill to become law. He could then perhaps make a legal after-the-fact claim that Commons violated procedure to get the law passed and thus passage of the law was illegal.
Option 5 (a legal challenge) within option 6 strikes me as odd because the law will already have passed. But perhaps Johnson could mount a claim he was illegally obliged to vote against the government and thus passage itself was illegal. Curiously, Johnson might select this path even knowing it is doomed, simply to buy needed time.
Alternatively, Johnson could refuse to comply then use that as the basis to file a motion of No Confidence against himself or resign. A motion of no confidence under these any refuse-to-comply scenario would surely pass. But it takes a day of debate and then a vote.
Resignation in a refuse-to-comply scenario would allow the opposition to immediately come up with an alternate candidate caretaker government. The caretaker would in turn immediately request an extension and perhaps do other damaging things. This is why I rule out resignation.
Assume the Commons outs Johnson. They vote for a caretaker government. The law is unclear as to what happens if Johnson refuses to resign.
Johnson's options may be limited and circumvented but so might Parliamentary options once we get inside the 14-day window.
We do not know what other tricks or traps may be in place by either side.
Discussion: 4-Hold a Motion of No Confidence Against Himself
If Johnson selects this option, it would most likely be in conjunction with option 6 discussed above.
It's possible, perhaps as a final act of desperation.
Discussion: 5-Mount a Legal Challenge Against the Benn Bill
This may happen Monday or after option 6 discussed above.
I strongly believe a legal challenge would win, but that could give Parliament a huge incentive to to oust Johnson sooner rather than later.
If Johnson does not mount a legal challenge on Monday, it will be on purpose, not because a challenge would lose.
Thus, Johnson may allow the bill to become law without challenge, knowing full well that it is illegal. I am unsure if that completely rules out a legal challenge later. Who really knows how the courts might decide?
Perhaps Johnson understands he could not realistically mount a legal challenge after the bill received Royal Assent, but goes ahead anyway. That tactic would kill some perhaps crucial days as the case proceeded through the courts, no doubt fast-tracked.
Issuing a legal challenge even at a late state is more likely than refusing to comply with the law without offering a reason.
7-Allow Royal Assent, Request an Extension but Somehow Block It
Sorting through the options, this could easily be Johnson's best bet.
What might he do?
Get a commitment from France or Hungary to block the extension request. Yet, it's risky because France and Hungary might lie.
Even if Johnson put in place a poison pill, the EU might all go along knowing full well that Parliament would then elect a caretaker government and pass emergency legislation.
Neither side one can be trusted here.
A trap may have been set for Johnson. But we do not know what other tricks may be up Johnson's sleeve. There are potential traps both ways.
I have an idea but will not write it up here as I do not want it to be public. Instead, I will pass it on to Nigel Farage hoping he will listen.
Discussion: 8-Ask the Queen for a Delay to Study the Legality of Benn
A delay chews chews up time and adds uncertainty. Instead of asking the Queen to rule, Johnson asks for time.
Then on October 14, Johnson could grant assent, advise the Queen the bill is illegal, or ask the queen to allow the courts to decide.
Eventually, option 8 would morph into 4, 5, 6, or 7. It also kills a lot of time.
Who is the Trapee?
Parliament is suspended by order of the Queen from the end of the session on Monday, September 9 until October 14.
That suspension is iron-clad having already survived multiple court challenges.
Given the options discussed above, I caution against premature conclusions no matter what "apparently" happens on September 9.
Do not despair if Johnson fails to file a "Queen's Consent" legal challenge. It will be for a reason.
This is a very complicated mess right now.
Mike "Mish" Shedlock