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/))