Constitutional Law Group October 1, 2019 UK government, UK Parliament

Krishan Nadesan: Asking the Impossible: Benn, Kinnock and Extending Article 50

Boris Johnson seems caught in an impossible bind. The European Union (Withdrawal) (No. 2) Act – the Benn Act for short – obliges him to seek an extension of Article 50 on 19 October. He can extend, honour the law, but break his promises. He can refuse to extend, honour his promises, but break the law. Or he can resign. The Benn Act appears to trap the Prime Minister between these unpalatable options. Nevertheless, he may be able to escape. For the Act may ask the impossible.

The Kinnock amendment

Fortunately for the Prime Minister, the Benn Act did not receive Royal Assent in pristine form. Amidst farcical scenes in the Commons, Stephen Kinnock mangled the Bill with an amendment. Section 1 of the original Bill created a simple statutory duty to extend Article 50. The Prime Minister was required to extend on October 19, unless Parliament ratified a Withdrawal Agreement, or approved No-Deal. But the Kinnock Amendment added the following provision to section 1(4):

‘The Prime Minister must seek … an extension of the period under Article 50(3) … in order to debate and pass a Bill to implement the agreement between the United Kingdom and the European Union under Article 50(2) of the Treaty on European Union, including provisions reflecting the outcome of inter-party talks as announced by the Prime Minister on 21 May 2019, and in particular the need for the United Kingdom to secure changes to the political declaration to reflect the outcome of those inter-party talks.’ [Kinnock additions emphasised]

As may be seen, the Amendment obliges the Prime Minister to fulfil his statutory duty for a statutory purpose. The Prime Minister must extend ‘in order to debate and pass’ a defined Withdrawal Agreement. The defined Withdrawal Agreement must include ‘provisions reflecting the outcome of inter-party talks’ – the May-Corbyn talks earlier this year. But, as a matter of fact, these talks had no outcome. Apparently, then, the Act asks the impossible. The defined Withdrawal Agreement cannot exist, for no agreement could include provisions reflecting an outcome which never occurred. If the defined Withdrawal Agreement cannot exist, it cannot be debated and passed. And if the defined Withdrawal Agreement cannot be debated and passed, the Prime Minister cannot extend in order to do so.

This strict reading of the Amendment wrecks the Benn Act. The Act obliges the Prime Minister to extend, but for a specific purpose. Fulfilling that purpose seems impossible. So surely the obligation to extend falls away? True, the Act’s original authors wished to oblige the Prime Minister to extend Article 50. But, if the strict reading is correct, the Amendment prevents them converting that wish into legislative reality.

Interpreting statutes: Gold and mischief

Given this, perhaps the courts should adopt a looser reading of the Kinnock Amendment? Two rules of statutory interpretation might permit this. The ‘golden rule’ enables the courts to avoid absurd results when interpreting statutes. The ‘mischief rule’ enables them to avoid unintended results. These rules seem singularly applicable to the Amendment. On a strict reading, the Amendment creates an impossible statutory duty – which is plainly absurd. And additionally, the Amendment defeats the Benn Act’s original purpose (to compel extension on October 19) – which seems unintended.

However, the courts do not have unrestricted licence to reinterpret the Amendment. Both the golden and mischief rules erect hurdles which the courts must surmount before departing from the strict reading. The golden rule requires that the strict reading produce ‘an absurdity … so great as to … justify the Court in putting on [the statute’s words] some other signification.’ (River Wear Commissioners v. Adamson p.764). In other words, the strict reading must be more absurd than any alternative interpretation.

The mischief rule requires that the strict reading suffer from ‘obscurity … such as might lead a court to prefer … alternative meanings in the interests of promoting rather than disappointing the purpose of the statute.’ (Yarl’s Wood Immigration Ltd & Ors v Bedfordshire Police Authority at 69). So the strict reading must be less faithful to Parliament’s intention than any alternative interpretation. The question arises – does any alternative interpretation surmount either hurdle? Other than the strict reading, there are three alternative interpretations of the Amendment.

Interpretation 1 – ‘two duties’

First, perhaps the Prime Minister can fulfil his statutory duty to extend, without fulfilling the statutory purpose? Post-Kinnock, it might be argued, section 1(4) of the Benn Act creates two statutory duties – one to extend, another to pass a defined Withdrawal Agreement. The duties are distinct – it is possible to fulfil one, and breach the other. Granted, the Prime Minister cannot fulfil his second duty, to pass the defined Withdrawal Agreement. But his first duty, to extend, remains.

This ‘two duties’ interpretation is difficult to square with either the golden or mischief rules. Applying the golden rule, it creates even greater absurdity than the strict reading. The strict reading results in absurdity, but confined to one statute. By contrast, the ‘two duties’ interpretation drives a coach-and-six through the whole field of administrative law. On this interpretation, the Prime Minister may exercise a statutory power, without fulfilling the statutory purpose. But it is trite law that powers conferred by Parliament may only be used for their statutory purpose. So the ‘two duties’ interpretation actually subverts long-settled case law governing the use of every statutory power.

Examples abound to show how this results in absurdity. Take local authority grants. Suppose an authority has a statutory duty to grant funds to a school for special needs provision. Suppose further that the school cannot make special needs provision – even with the grant. It would be absurd if the authority still must make the grant, even though the funds cannot be applied to the statutory purpose. The ‘two duties’ interpretation, then, does not clear the hurdle erected by the golden rule. While removing one absurdity, it creates countless others.

The mischief rule yields nothing better. It is difficult to see how the ‘two duties’ interpretation is more faithful to Parliament’s intention than the strict reading. The Explanatory Statement accompanying the Kinnock Amendment clearly states that passing the defined Withdrawal Agreement is the purpose of the duty to extend – not a separate duty. This conclusion is supported by the Amendment’s language. If section 1(4) created two duties, it would contain two imperatives. It would state that the Prime Minister ‘must seek … an extension‘ and that he ‘must seek to debate and pass‘ a Withdrawal Agreement. But section 1(4) contains just one imperative – the Prime Minister ‘must seek … an extension … in order to debate and pass‘ a Withdrawal Agreement. It follows that Parliament intended to create a single statutory duty – to exercise a power for a purpose. If the Prime Minister cannot exercise his power to extend to fulfil the statutory purpose, he cannot extend at all.

Interpretation 2 – ‘partial fulfilment’

Second, perhaps the Prime Minister can fulfil his statutory duty to extend, but partially fulfil the statutory purpose? Fulfilling the statutory purpose, it might be argued, is not all or nothing. Admittedly, no Withdrawal Agreement could include provisions reflecting the outcome of the May-Corbyn talks. But the Prime Minister could pass a Withdrawal Agreement, albeit without these provisions. Arguably, then, he remains under a duty to extend, to fulfil the statutory purpose to the farthest extent possible.

Again, this ‘partial fulfilment’ interpretation falls at the hurdles erected by the golden and mischief rules. Both rules forbid the courts to simply remove words from a statute. Rather, they enable the courts to prefer a looser interpretation, which avoids absurd or unintended results and ‘which the Court thinks the words will bear‘ [River Wear Commissioners at p.764, emphasis added]. However, the ‘partial fulfilment’ interpretation does remove words from the Kinnock Amendment. This interpretation allows the Prime Minister to pass a Withdrawal Agreement without ‘provisions reflecting the outcome of inter-party talks‘. But the Amendment does not regard ‘inter-party talks’ provisions as an optional extra to the Withdrawal Agreement. Instead of using permissive language, it requires the defined Withdrawal Agreement to include these provisions. So the ‘partial fulfilment’ interpretation effectively deletes these words – ‘including provisions reflecting the outcome of inter-party talks…‘ – from the Amendment’s definition of the Withdrawal Agreement.

Consequently, the courts cannot adopt the ‘partial fulfilment’ interpretation. Parliament deliberately defined the type of Withdrawal Agreement it wanted – for the obvious reason that an unwanted Withdrawal Agreement would suffer the same fate as Theresa May’s deal. The courts may reinterpret this definition, but not rewrite it. The Prime Minister, then, must extend only to pass a Withdrawal Agreement including ‘inter-party talks’ provisions. He must go for all or nothing.

Interpretation 3 – ‘unagreed outcome’

Third, perhaps the Withdrawal Agreement can reflect the outcome of inter-party talks? True, the May-Corbyn talks ended without agreement. However, the talks did lead to the preparation of an unagreed Withdrawal Agreement Bill, embodying ten Government concessions to the Labour Party. It might be argued that this unagreed Bill reflects the outcome of inter-party talks. The Prime Minister could then extend to pass a similar Bill, fulfilling the statutory purpose.

On its face, this ‘unagreed outcome’ interpretation clears the hurdle erected by the golden rule. Strictly, a Bill requires inter-party agreement to constitute the outcome of inter-party talks. Otherwise, it is simply a Government proposal, albeit one which takes account of Opposition concerns. However, ‘outcome‘ bears looser meanings – ‘result’, ‘consequence’, ‘effect’. So, loosely interpreted, a Bill shaped in inter-party talks can constitute the outcome of those talks, despite lacking final agreement. The golden rule apparently requires the courts to prefer the looser interpretation. It is not absurd to consider the unagreed Bill as the outcome of the May-Corbyn talks. But the strict reading does lead to absurdity – a Withdrawal Agreement which cannot exist.

Nevertheless, the attractive appearance of this interpretation is deceptive. The courts would not create absurdity by reading the Kinnock Amendment in this way. But they would enter the realm of politics. The courts must try to construe statutes according to constitutional principles – one of which is the separation of powers (R v. Secretary of State for the Home Department, ex p. Simms, R (Miller) v. The Prime Minister). Consequently, the courts should reject interpretations which necessarily require them to make political judgments. The ‘unagreed outcome’ interpretation fails this test. Absent a published agreement, the courts would have to ascertain whether the May-Corbyn talks arrived at an outcome. Effectively, they would judge whether the unagreed Bill reflected the trend of the talks. It is difficult to imagine a more intensely political judgment, or one which the courts should steer farther away from. The upshot is that the Amendment should be read strictly – only an agreed outcome will do.

Applying the mischief rule throws up another obstacle in the way of the ‘unagreed outcome’ interpretation. This arises from the legislative history of the Kinnock Amendment. As its Explanatory Statement shows, the Amendment was originally accompanied by a proposed New Clause 1 – this effectively defined the unagreed Bill as the ‘outcome of inter-party talks‘. However, the House did not pass New Clause 1. The courts cannot adopt an interpretation which Parliament implicitly rejected. So surely the unagreed Bill cannot constitute the ‘outcome of inter-party talks‘? The Prime Minister would actually contravene Parliament’s intention if he extended to pass the unagreed Bill.

‘Garbage in, garbage out’

Despite its absurdity, the strict reading seems preferable to every alternative interpretation of the Kinnock Amendment. So, unwittingly, Stephen Kinnock may have released Boris Johnson from his bind. At least arguably, the Amendment absolves the Prime Minister from his statutory duty – he need not seek an extension on October 19, as he cannot fulfil its statutory purpose. Of course, on recent form, the courts will kick against this conclusion. But they should recall the pithy motto of Antonin Scalia, the late US Supreme Court Justice. When interpreting statutes, judges have but one duty – ‘garbage in, garbage out’.

Krishan Nadesan is a solicitor at Clyde & Co LLP. All views expressed in this post are the author’s own.

(Suggested citation: K. Nadesan, ‘Asking the Impossible: Benn, Kinnock and Extending Article 50’, U.K. Const. L. Blog (1st Oct. 2019) (available at https://ukconstitutionallaw.org/))

14Comments

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1

Max Thorneycroft on October 1, 2019 at 2:32 pm
Reply

A Government view on the Kinnock amendment (and the Bill more generally) was given by Lord Cillanan in the House of Lords during the passage of the Bill as follows:

“It is true that initially, during the fast-moving events at a late hour on Wednesday evening, it was our intention to ask the House to remove this amendment. However, since then we have looked at it further. My noble friend Lord Forsyth said that the Government do not support this Bill and do not favour it. We think it is flawed and that this Kinnock amendment tries, but does not succeed, to make it even worse. The amendment is confusingly drafted, is contradictory to the aims of the rest of the Bill and its deficiencies are such that its effect is rendered pointless.

I always hesitate to disagree with my noble and learned friend Lord Mackay but my strong advice is that this amendment is legally inoperable. It appears contradictory with other parts of the Bill because it requires an extension to pass legislation to implement a deal, when, under this Bill, the extension is being sought only because no deal has been agreed.”
2

Andrew Chapman (@AndrewChapman50) on October 1, 2019 at 3:19 pm
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Is it not perhaps the Bill that is to ‘provisions refecting..’, rather than the Agreement?

As for what the outcome was, there is some information in the PM’s speech here: https://www.gov.uk/government/speeches/pms-speech-on-new-brexit-deal-21-may-2019
3

Tom Murphy on October 1, 2019 at 10:24 pm
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In the House of Lords on 6th September, Lord Callanan, the Minister of State for the Department for Exiting the European Union, said:

“It is true that initially, during the fast-moving events at a late hour on Wednesday evening, it was our intention to ask the House to remove this amendment. However, since then we have looked at it further. My noble friend Lord Forsyth said that the Government do not support this Bill and do not favour it. We think it is flawed and that this Kinnock amendment tries, but does not succeed, to make it even worse. The amendment is confusingly drafted, is contradictory to the aims of the rest of the Bill and its deficiencies are such that its effect is rendered pointless.

“I always hesitate to disagree with my noble and learned friend Lord Mackay but my strong advice is that this amendment is legally inoperable. It appears contradictory with other parts of the Bill because it requires an extension to pass legislation to implement a deal, when, under this Bill, the extension is being sought only because no deal has been agreed.

“For all those reasons, as I have said, we think it is inoperable and largely pointless. I am happy to say that it was our original intention to take it out—we had discussions to that effect and so my noble friend Lord True is correct, as always—but since then we have looked at the matter further.”

(Hansard, 6 September 2019)
https://hansard.parliament.uk/lords/2019-09-06/debates/34384387-BEBC-43AE-BA2E-D0538E16BF4C/EuropeanUnion(Withdrawal)(No6)Bill

The rule in Pepper v Hart [1993] AC 593 HL allows the Courts to take into account statements made in Parliament by Ministers of the Crown for the purposes of statutory interpretation.

If the Prime Minister were to try to use the literal wording of the Kinnock amendment to try to avoid his obliged to ask for an extension, it is arguable that the Courts may take the view that the amendment has no legal force and does not provide the Prime Minister with a means to avoid the duty imposed by the Act.
4

Flubber on October 3, 2019 at 12:53 am
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“If the Prime Minister were to try to use the literal wording of the Kinnock amendment to try to avoid his obliged to ask for an extension, it is arguable that the Courts may take the view that the amendment has no legal force and does not provide the Prime Minister with a means to avoid the duty imposed by the Act.”

So we’re in the realm of the courts making thinghs up as they go along? This will not end well. I dont remember voting to enable a court of academics to have more auythprity than either the queen or the government.

No one voted for a kritarchy.
5

Tom Murphy on October 3, 2019 at 2:08 pm
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The Supreme court is not “a court of academics”. The Lords Justice of the Supreme Court are the most senior judges in the land, and they all have a vast amount of legal knowledge and practical experience.

The Court would not be “making things up as they go along”. Acts of Parliament are often badly drafted. The wording may be vague, self-contradictory or would produce an absurd result if it were taken literally as written. When it is, the purpose of statutory interpretation is to determine what the actual intention of Parliament was when they enacted the legislation. Furthermore, if Parliament disagrees with how the courts have interpreted legislation, they always have the power to amend the legislation to make it absolutely clear what their intention was when they enacted it.

If the Supreme Court did apply the rule in Pepper v Hart, it would not be they who had said that the Kinnock amendment was legally inoperable. A Minister of the Crown has already said that.
6

Paul Stagg on October 3, 2019 at 7:12 pm
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It is important to remember that section 13(1) of the European Union (Withdrawal) Act 2018 sets four conditions without which the government cannot ratify a withdrawal agreement with the EU. Effectively, the agreement must be placed before Parliament, approved by a resolution of the House of Commons and debated in the House of Lords. The subsection also requires that an Act is passed “which contains provision for the implementation of the withdrawal agreement”.

There must, therefore, be a withdrawal agreement Bill which is passed into law before ratification. It is that Bill which is referred to in section 1(4) of the Benn Act.

As the article states, section 1(4), as originally drafted, did not provide for any particular purpose to the extension which the Prime Minister would be compelled to request. Kinnock’s amendment added the words from “in order to debate” onwards. During the debates on Kinnock’s amendment, he opened by referring to “the withdrawal agreement Bill that was drafted in May 2019 as a result of cross-party talks.”

See the link to Hansard here: http://bit.ly/2zPxvNZ

I have not been able in the time available to track down a copy of that draft Bill, but news reports from the time indicate that Labour had secured a number of concessions from the government in terms of the content of the political declaration (the statement of aspirations for a future deal between the UK and the EU). Furthermore, an additional amendment moved by Kinnock, required the publication of a draft Bill which set out the additional matters which had been agreed.

See page 6 of the list of amendments here: https://publications.parliament.uk/pa/bills/cbill/2017-2019/0433/amend/euwithdrawal6_daily_cwh_0904.pdf

The basic premise of the article is that section 1(4) asks Johnson to do the impossible, because the inter-party talks which took place collapsed. Therefore, some elaborate techniques of interpretation need to be employed to work out what, if anything, Johnson is obliged to do.

I entirely disagree with both the premise, and the suggested use of interpretative techniques.

Looking at the premise first, the article suggests that section 1(4) obliges the Prime Minister to pass a Bill. It does no such thing. Johnson is required to do only one thing: write and request an extension. The words “to debate and pass a Bill” do not create any additional obligation resting on the Prime Minister. They could not possibly do so: it is Parliament, not ministers, that debates and passes Bills. Furthermore, the subsection specifies what the content of the Bill must be, not the content of the resulting Act, because of course like any other Bill, it may be (and no doubt would be) amended during the course of passage.

So while the language of the amendment is certainly garbled, it seems to me that its intention is plain enough, and that it requires Johnson to write a letter for the purpose of seeking to get a withdrawal Bill passed by Parliament in whatever form can be agreed. The fact that the amendment merely sets out a purpose of the extension, rather than creating an additional obligation, is set out in the notes to the amendment on p3 of the amendments document.

I am reinforced in this interpretation by the fact that the Kinnock amendment did not also amend the Schedule to the Benn Act, which sets out the text of the letter which Johnson must send to the European Council. The text of the letter makes no reference to a need to pass a withdrawal agreement Bill, still less in any particular form. There was an amendment proposed to the Schedule, set out on pp8-9 of the amendments document linked to above, but it clearly did not pass.

Once it is appreciated that the subsection creates an obligation and a purpose, rather than two obligations, the need to use particular techniques of statutory interpretation goes out of the window.

Johnson isn’t going to escape from his obligation under the Benn Act through this route.
7

Alex Latham-Gambi on October 3, 2019 at 10:27 pm
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Or, maybe the Prime Minister is under an obligation to seek an agreement that reflects the ‘trend of the talks’, with precisely what that entails a matter for him to judge. Just because there’s a legal obligation doesn’t mean the courts have to dictate every last detail of its content.

Also, I don’t think ‘garbage out’ is something anyone should ever aim for.
8

Andrew Chapman (@AndrewChapman50) on October 4, 2019 at 1:27 pm
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As I understand him, Paul Stagg is taking the clause beginning ‘including provisions..’ to be connected to ‘a Bill’, not to ‘the agreement’. The latter is I think more natural but the former seems possible grammatically.
9

Paul W on October 4, 2019 at 8:21 pm
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The Benn Act says
“The Prime Minister must …request an extension in order to debate and pass a Bill to implement the agreement between the United Kingdom and the European Union under Article 50(2) of the Treaty on European Union, including provisions reflecting the outcome of inter-party talks as announced by the Prime Minister on 21 May 2019, and in particular the need for the United Kingdom to secure changes to the political declaration to reflect the outcome of those inter-party talks.”

What would the answer be if this were a commercial agreement that the Court was asked to construe?

First, it is doubtful that the Court would construe the words ‘in order to debate and pass’ as a mandatory obligation (on someone) to debate then pass the WA. It would presumably construe it as meaning ‘in order to enable the UK Parliament to debate and, if thought fit, pass the WA’.

As regards the phrase ‘including provisions reflecting the outcome of the inter-party talks’, the Court would enquire whether that was sufficiently certain. Strictly it seems it is not, since the talks had no ‘outcome’ as such, except that they were abandoned. It is unlikely but not impossible that the Court would reconstrue the phrase to mean ‘any of the topics that were discussed during the inter-party talks’.

So the Court might put a blue pencil through those words as void for uncertainty. It might either say that the Act should be construed without those words or that the Act was inoperable.

However, read on.

The Act continues “in particular the need for the United Kingdom to secure changes to the political declaration to reflect the outcome of those inter-party talks.”

So it seems that the Act doesn’t require any changes to the Withdrawal Agreement itself, only the political declaration. (It could mean that both must be changed, but that would be rather otiose.)

And the political declaration is non-binding. One glance at the political declaration will show that it is simply a wish list of items requiring further negotiation and precision. So, the Act hasn’t required that the binding Withdrawal Agreement should be amended to include provisions that ought to be legally binding and legally certain but in fact are not. The WA can be ‘debated and passed’ as is.

as for the Political Declaration the Court – anxious not to find the Act void for uncertainty – can either say that, because the talks collapsed, nothing need be included in the PD, or it can say that in this case it must have been intended that the ‘outcome of the inter-party talks’ should be construed as ‘the topics aired in the inter-party talks’. And the Court would be indifferent to the answer, because the political declaration is too uncertain already to be enforceable, so adding a few other uncertain provisions is neither here nor there.

On that basis, the Court could easily construe the legal obligation as meaning that the Government must request “an extension in order to enable the UK Parliament to debate and if thought fit pass the Withdrawal Agreement and for the UK Government to secure that the political declaration be amended to include the range of topics discussed in inter-party talks”.

Given the radical law-making that the Supreme Court has already indulged in in Miller 1 and Miller 2, the above result would seem to be an easy one for it to arrive at, unless, that is, Lady Hale might be fearful that bragging that the Court now had a 3-0 win against the Government might further exacerbate the question of the Court’s impartiality.
- 10
  
  Paul W on October 6, 2019 at 5:32 pm
  Reply
  
  For clarity, the references above to ‘passing the Withdrawal Agreement’ are shorthand for ‘passing a Bill to implement the Withdrawal Agreement’
11

kevinclarke5217 on October 5, 2019 at 9:46 am
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In terms of duty to pass a Withdrawal Agreement Implementation Act that is already a provision of EUWA. It seems counterintuitive to have terms of exit under an agreement subject to primary legislation but not terms of exit absent agreement.
12

Brexit Highlights 30 September – 6 October 2019 – Middle Temple Library Blog on October 7, 2019 at 3:40 pm
Reply

[…] The UK Supreme Court’s Judgment in Miller/Cherry: Reflections on Its Context and Implications; Krishan Nadesan: Asking the Impossible: Benn, Kinnock and Extending Article 50; Alexandra Sinclair and Joe Tomlinson: Making Parliamentary Accountability Effective: Prorogation, […]
13

Franz Roberts on October 7, 2019 at 4:43 pm
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Asking the Impossible and Squaring the Circle!
Clearly many suggestions have been postulated since early September on just how the so-called Benn Act might be legally circumvented or frustrated, e.g.: the possible use of the Emergency Powers Act; convincing a “friendly” member of the EU to break ranks within the remaining 27 countries so that the EU ends up rejecting any request for an extension; threatening to wreak havoc on the workings of the EU for as long as the UK remains trapped within it to achieve the same outcome. The current position as set out by a senior Downing Street source is that: “The government will comply with the Benn Act, which only imposes a very specific narrow duty concerning Parliament’s letter requesting a delay ….and which can be interpreted in different ways. But the government is not prevented by the Act from doing other things that cause no delay, including other communications, private and public. People will have to wait to see how this is reconciled. The government is making its true position on delay known privately in Europe and this will become public soon.”

In the meantime, your very thorough article sets out an interesting hypothesis that the Benn Act might actually contain at least one fatal flaw or loophole that the government could choose to exploit in order to “test the law to the limit”. I can’t really add much to the particulars of your very cogent argument above in respect of the Kinnock amendment, other than to say (1) it would seem reasonable to concluded that the shock (passive) acceptance of this amendment (by virtue of no Conservative tellers for the ‘Noes’ having presented themselves for the vote), was likely to have been part of a deliberate government strategy to “queer the pitch” with this Act, and (2) the EU has so far stated that it would be prepared to consider a further extension beyond 31st October if requested by the UK government. However, the EU has also stated that there would have to be a good reason given for requesting such an extension before it would consider granting one. Clearly no reason (valid or otherwise) is set out within the letter which the PM is required to send, and you have raised serious concerns in your paper about the “impossible to deliver” reason for the extension as set out within the body of the Act itself. It would seem to me, therefore, that the PM could simply make up whatever (inadequate) reason he may choose to on the day, in the sure and certain hope that the EU will simply reject the request and the UK will leave on 31st October without a deal.

Your particular assessment of the Act does, however, add to my personal growing perception that perhaps those members of Parliament who assisted in drafting the legislation, and are now relying on it being sufficiently robust and watertight in order to prevent a no-deal Bexit on 31st October, are possibly being dangerously complacent in the face of the government’s confident and assertive claim that, it will obey the law (as it currently stands), but the UK will still be leaving the EU on 31st October 2019, with or without a deal. It has been a whole month since the Benn-Burt Extension Bill was first drafted, and I am sure that since then there have been regular and ongoing gatherings of the finest legal minds the government can muster to help it game-plan as many potential loopholes as they can possibly find to hopefully circumvented the Benn Act legally.

All attempts to get some insight into such possible loopholes within the Act have so far failed, and rather, there has been a consistent, strident, confident message emerging day after day from Downing St, the despatch box and the media that we “will be leaving on 31st Oct, come what may”. This despite what was contained in the government’s own letter presented to the Scottish court this past week. The more sanguine Members of Parliament seem to put all of this rhetoric down to sheer bluster and bravado on the part of the PM and government. However it is probably unnerving to quite a few, both within Parliament and across the wider country. It is actually possible it is all in fact simply about the government creating a climate of “creative ambiguity” (to quote the PM) aimed at diverting and distracting the opposition so that it can focus on pushing through its own agenda, whilst simultaneously trying to portray the PM as the strongman of British politics who alone can protect the electorate’s interests in the face of huge political opposition. However, opposition MPs would be well advised to remain vigilant at all times if they want to avoid such a single-minded Executive overriding what appears to be a clear Parliamentary majority position to prevent a no-deal Brexit. Any assumptions MPs might normally make or conventions that they would normally take for granted and rely on for the observance of good parliamentary democracy do not apply in these heightened political times. These are not normal times and this is not a conventional, conservative government. The side which stays alert, remains flexible to ever changing situations and shows the most fortitude is going to win this particular constitutional battle.

Having read your article, I decided to delve a little bit further into this matter. Among the many articles I came across was one entitled, ‘The Benn-Burt Extension Act: A roadblock to a No-deal Brexit?’ by Oliver Garner in the U.K. Const. L. Blog (13th Sept. 2019). Oliver Garner’s article set out three ways to potentially come out of the EU by 31st October, namely (a) the House of Commons approves a Withdrawal Agreement under section 1(1), or (b) the House of Commons approves withdrawal without an agreement under section 1(2) before 19 October, or (c) the House of Commons decides, under section 3(3) of the Act, to reject an extension proposal from the European Council to a date other than 31 January 2020.
However, everything I read led to me surmise that there may be more potential loopholes and risks out there that people may be currently overlooking, and which could lead to the UK leaving the EU without a deal. My next obvious (and much overdue) step was to actually read the text of the EU (Withdrawal) (No.2) Act 2019 itself rather than to somewhat lazily continue to rely on other peoples’ usually very rosy interpretations of it. I am not a lawyer but I have spent many years of my professional life attempting to write unambiguous and robust technical specifications. This experience, albeit in a very different domain, has at least given me some insight into reviewing and assessing carefully constructed statements. After I briefly perused the wording within the Act a couple of times, I started to become increasingly uneasy with what I was reading. As I have said above, I had already been somewhat uneasy about the possible risks and implications of the Kinnock amendment before reading the very thorough assessment in your article. Now I began to see some other possible chinks of light through what experts have been consistently saying is clearly a “tight and well written piece of law”.

One of the first lessons I was taught in my professional life when trying to write watertight specifications is to always avoid saying what you don’t want to happen and focus rather on saying what you do want to happen – i.e. always avoid stating the negative and accentuate the positive. In short, negative statements are considered bad, and double negatives are a recipe for disaster, so an absolute No-No (if you will excuse the pun). I am not sure however, if this same principle applies equally in the legal field, so please bear with me for now. Clearly avoiding negative statements is not the same thing as turning a blind eye to any potential negative impacts that may need to be identified, considered and handled properly. It simply means that planned responses to any possible negative impacts must be clearly stated in terms of the positive outcome(s) being sought. The other lesson I learned early on in my career was, “words matter” – a lesson some people in public life apparently still haven’t grasped. Verbs in particular are very important as they define and drive behaviour. I have in mind at this point, verbs such as “decide”, which will hopefully become clearer later.

Applying these principles to the actual text of the Benn Act, then in addition to the EU simply rejecting any request for an extension, I quickly came to the conclusion that there may be another potential way for the UK to leave the EU without a deal on 31st October. This was triggered by reading the double negative statement within 3(3) which was sufficient to set my “spidey senses” tingling and drive me back to rechecking the linkage between this subsection and the apparently very unambiguous statement in 3(2). For (my) convenience I prepared a partial merge of the two subsection to help clarify in my mind the essence of the requirement. My reading of these two subsections is as follows (the emphasis is mine):
“If the European Council decides to agree an extension ….. to a date other than 11.00pm on 31 January 2020 the Prime Minister must ……. notify the President of the European Council that the United Kingdom agrees to the proposed extension but (this) does not apply if the House of Commons has decided not to pass a motion approving an extension to the period which the European Council has decided”

As they say, the devil is always in the detail and there is a lot of critical detail built into these two apparently straightforward subsections that need to align perfectly for the Act to work as its authors intended. Unfortunately it looks like these details may also leave plenty of scope for those who might want to frustrate the power of the Act to achieve its intended purpose.
The first detail is to do with timing, and as we all know, timing is everything. Subsection 3(2) and 3(3) both set out a “2 calendar day” window beginning with the end of the day on which the European Council’s decision is made (or before the end of 30 October 2019, whichever is sooner), within which both the PM and Parliament must react positively in the event that the EU proposes a date other than 31st January 2020. Clearly it is possible that the prescribed period could start late on a Thursday or Friday evening, after MPs have passed an adjournment motion, and expire late on a Saturday or Sunday during which period the HOC would not normally be sitting. This situation can in theory be avoided and/or handled quite easily provided MP keep their wits about them.

The second and third details are closely related, in that the law requires the HOC to decide on a motion to be moved by a Minister of the Crown within the specified period of two calendar days beginning with the end of the day on which the European Council’s decision is made. Any significant delay introduced at this point in the specified, time-limited, process could result in the HOC not actually being presented with the opportunity to make a decision. Were this to happen, the PM would not have to accept the EUs alternative offer to extend the leaving date to something other than 31st January 2020. There may be some slight embarrassment that the PM actually had to ask for any extension, but I believe this would be very short-lived as the end result would be that the UK would (barring any other blocking action Parliament may successfully take) be on its way out of the EU on 31st October without a deal, and without having broken the law (as set out in the Benn Act). Clear such a loophole would only appear if the EU were to decide on and propose one or more date other than the date requested in the letter. However, as Oliver Garner clearly warns in his article, “It is paramount, therefore, that the European Council is aware that the consequences of a decision to set an extension date other than 31 January 2020 could set in motion events that may lead to the United Kingdom withdrawing without agreement on 31 October. This would arguably even be the case if the European Council grants a ‘flextension’”.

There may be various other scenarios out there that one might be able to imagine that could further increase the risk of the UK leaving the EU without a deal, but once again, without the law being broken. For example, just as a passing thought which I don’t propose to develop further here, suppose that (as now seem highly probably if not yet certain) the PM were to prorogue Parliament yet again between now and 19th October (ostensibly, and probably quite properly for the purpose of holding a Queens’ Speech). Now further suppose that either just prior to the start of the prorogation period or during it, the PM were to request from the EU as per subsection 3(4) of the Act, his own choice of date of departure. Anything that might subsequently ensue with the EU in response to such a request within the period while Parliament was still prorogued could not be challenged by the HOC until it returned at the end of the prorogation period. I am not sure whether or this could happen or what the possible outcomes might be, and I certainly don’t want to get into wild conspiracy theories with this particular scenario which may appear to be a little too far-fetched to be realistic. However, it may be possible that with just a few minor tweaks it could throw up some alternative strategies that people may actually need to start worrying about.

Historically during my lifetime, the general public has chosen not to get too involved in day-to-day politics, and most of us have tended to rely heavily on the better informed minds and the extensive parliamentary experience which our duly elected MPs bring into parliament to achieve what we hope are the best outcomes for our country as a whole. However, that all change for many more voters (including me) with the outcome of the Brexit Referendum, with all its subsequent political twists, turns and shenanigans that have been on full display daily in Parliament via our TVs , radios, computers and newspapers.

The government’s consistent mantra over the past year or two is that majority of the British electorate voted for Brexit in 2016, and the vast majority British electorate today are totally fed up with Brexit and just want to get it done (“by whatever means” – implied). However, I would suggest that no one knows exactly what the vast majority of the British electorate currently think about Brexit and no one political group can legitimately claim that they have particular insight and a national mandate to follow through on their particular vision of Brexit. A key aspect of real democratic government within any country is that it provides for its citizens to change their minds both individually and collectively on an ongoing basis in response to: changing situations within their own country and in the wider world; more information coming to light and; the perceived effectiveness or otherwise of the current ruling party.

Now getting back to your article above, since I started to pay a lot more attention to what is actually going on within the UK Parliament, I have been surprise just how often some of our most able MPs (and members of the media for that matter) seem to blithely trot out that the PM has now been boxed into a corner by the Benn Act, and that is absolutely clear in both the letter and intent of the Act, that (assuming no deal has been agreed in parliament by 19th October), the government has to chose between either requesting an extension with the EU (which it says it won’t do) or breaking the law (which it also says it won’t do). It is actually quite painful and frustrating for those of us who can only look on from the sidelines, when we watch MPs and interviewers trying to get clarification from Ministers on how the government is actually going to “square this circle” come 19th October, and see their questions being so easily brushed aside with claims that such questions are totally “hypothetical” and hence irrelevant. What happened to the democratic principle of holding the government to account? You do have to give the government some credit, however. They have held their counsel well, not letting anything slip out in terms of their strategy for getting around the Benn Act, and both government ministers and Conservative backbenchers do seem to be speaking with one voice, albeit with essentially the same response to almost every question. The purge of rebels on 4th September clearly has worked and those MPs that are left within the party all have the same message to proclaim ad nauseam, even if they haven’t all been given the inside gen behind the government’s plan.

Assuming that the government does actually manage to find a way through or around the Benn Act, and we appear to be heading towards a no-deal exist on 31st October, it seems that Parliament would still have two potential “backstops” of its own to fall back on. The first would be to call for a vote of (no)confidence in the current government when it is reasonably certain that opposition MPs can actually defeat the government and then coalesce around a “caretaker PM” acceptable to the majority, so as to form an effective and temporary so-called “government of national unity” capable of preventing a no-deal Bexit and planning for a General Election and/or a Confirmatory Referendum in the coming months. However, all indications are that personal and political egos and ambitions will be allowed to get in the way of and hence stymie this otherwise viable backstop option. The ultimate “nuclear option” to prevent the UK ultimately dropping off the edge of a cliff into the abyss of a no-deal Brexit, which the majority of MP say they will try to avoid “at all costs” is to simply vote to revoke Article 50 before 31st October. However, should the need ever arise to consider this extreme option seriously, it will be fascinating to see just how many MPs are actually prepared (metaphorically speaking) to put their hand on, and push the big red button. We do live in interesting times!
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David Simpson on October 10, 2019 at 2:04 pm
Reply

I disagree. The requirement is to seek an extension. The purpose is in more general terms, accordingly a Court should enforce the extension request with a view to seeking the purpose. The possibility of the purpose not being fulfilled does not negate the requirement to make the request. I anticipate that you will say that the purpose is impossible to achieve, but, as I say, I read it in more general terms.