This is the first of a two-part discussion of this theme. This first part addresses the obligations under the Benn Act and the legal response to attempts to frustrate it; the second part will address non-confidence motions, resignation and change of Government.

There has been significant confusion about options open to Government and the opposition parties after the enactment of the European Union (Withdrawal) (No.2) Act 2019 (the “Benn Act”). Prime Minister Boris Johnson (the PM) has affirmed repeatedly that he would neither breach the Act nor send the request for an extension of the negotiating period that it straightforwardly requires. This raises concerns about whether the Government has a clever plan to evade or neutralize the requirements of the Benn Act. It also has invited speculation about the possible role of a vote of non-confidence, prime ministerial resignation, and an early election.  All of these issues depend to a significant extent on constitutional law and convention and it is the aim of this piece to clarify the applicable rules and principles. The analysis suggests that the PM will have almost no legal or political latitude for escaping the duty to seek an extension under the Benn Act, apart from resignation in favour of a clear alternative government.

1. The art of the impossible: legal conditions for not sending the letter under the Benn Act

The Benn Act requires the Prime Minister to send a letter requesting an extension from 31 October 2019 to 31 January 2020 in the event that the Commons neither (a) approves the text of a draft withdrawal agreement, nor (b) approves no-deal.  If neither occurs by 19 October 2019, the letter must issue in terms set out in the Schedule to the Act. If the European Council accepts the proposed extension dates, the PM must agree (s.3(1)). If the Council counter-offers a different date, the PM must accept that different date if he cannot within two days persuade the Commons to pass a motion allowing him to reject it (s.3(2)-(3)).

Neither of the two conditions for avoiding the extension request under the Act have much prospect of being satisfied by 19 October 2019. The point of the Benn Act is to avoid a no-deal scenario, so the second door is closed. And as for agreeing the text of a deal before the 19th of October, it is important to bear in mind that section 13 of the European Union (Withdrawal) Act 2018 (a different statute) imposes onerous additional requirements for the ratification of a withdrawal agreement.  MPs will know this and, presumably, not pass a motion under the Benn Act unless those additional requirements will be met so that a no-deal Brexit can be avoided. The 2018 Act requires the Commons to approve not only a draft agreement but also a framework for the future relationship with the EU, and, more onerously still, that Parliament must pass an Act giving effect to the withdrawal agreement. The third of these alone would be impossible to do before 19 October 2019, and it would be extremely improbable, though not impossible, for it to happen before 31 October 2019.  Given that trust between Government and the Opposition is at a low ebb, the only realistic way to avoid sending the letter on the 19 October is if a deal were reached and either the EU gave a brief extension as part of the deal or Parliament amended or disapplied the 2018 Act.  This all seems quite unlikely.

This suggests that simply not sending the letter is not a realistic option for any person sitting as PM on 19 October 2019.  Should the PM refuse, a court would compel that a letter be issued, for example by deciding to ‘direct an official to sign the letter on behalf of the PM’ (as suggested by Lord Sumption in an interview).

2. Asking the European Council to ignore the request for an extension

An option mooted in the Daily Telegraph suggests that the PM might send two letters, the second asking the European Council to disregard the one required by the Benn Act.  It would be absurd as well as patently unlawful. The European Council would seek clarification and the matter would end up before a UK judge, who would make short work of it.  The statutory request is required by a law whose aim is clear, and the second letter would seek to frustrate the operation of that law.  The correct authority for that proposition is Miller v SS for Exiting the EU [2017] UKSC 5 (Miller No.1): there exists no foreign affairs prerogative power that would operate to frustrate the purpose of a statute.  A court would be required to declare that the second letter was issued without lawful authority.  The European Council would be instructed that that there is only one valid letter.

It is difficult to be certain about the legality of other acts of ‘sabotage’ such as vetoing an EU budget or appointing a wrecking candidate as EU Commissioner.  The position in brief is that such acts, if transparent attempts to frustrate the policy of the Benn Act, would be an instance of improper purpose and likely bad faith, and thus unlawful under recognized categories of UK public law.

3. Asking another Member State to veto the request

The Government might be encouraged to prompt another Member State of the European Council to refuse the request.  Only one dissenting vote would suffice under Art. 50 of the Treaty of the European Union.  Such a move, if made publically, would be unlawful on the same grounds covered above.  What if ministers sought to do so through quiet diplomacy?

Any person who considers helping to plan or execute such a scheme should think very carefully.  As made clear above, the scheme would be unlawful and notoriously so.  Executing it in secret might well constitute the crime of misconduct in public office, an indictable offence carrying a maximum penalty of life imprisonment.  That is a bold claim, but not made lightly.  The misconduct at issue would have such extreme consequences, and probably be discoverable only after the fact, that demand for a criminal law response would be difficult to resist.

The elements of the offence were explained in Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868 [61].  The offence is committed when:

• a public officer acting as such;
• wilfully neglects to perform his duty and/or wilfully misconducts himself;
• to such a degree as to amount to an abuse of the public’s trust in the office holder;
• without reasonable excuse or justification.

We can apply these elements to our hypothetical scenario: the minister would act as a public officer, and in my view the behavior patently would be without reasonable justification. The minister would wilfully misconduct himself by either intentionally  breaching a duty not to frustrate the Benn Act, or by acting with reckless indifference as to whether procuring a rejection of the request would be unlawful under the Act.  Proof of such wilfull misconduct, above all in the context of notorious public concern over the legality of the Government’s conduct,  is quite plausible.  The decision to act in secret could well be supporting evidence for an awareness that this is a culpable attempt to breach the Benn Act.

As for whether the plan would amount to an abuse of the public’s trust in the office holder, the standard recognized in the caselaw is that it must amount to ‘serious misconduct’:

Whether it is serious misconduct in this context is to be determined having regard to the responsibilities of the office and the office holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities. (Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 [86], approved in Attorney General’s Reference No 3 [46], [57]).

In the Attorney General’s Reference No 3, the Court of Appeal also gave weight at [57] to ‘the seriousness of the consequences which may follow from an act or omission.’  Evidently, these standards will not assist a defendant in the considered scenario.

Furthermore, any person who assists or encourages such a crime might arguably be guilty of secondary or accessory liability.  Any civil servant or special adviser asked to facilitate such a plan should thus be vigilant and take appropriate steps to avoid any such risk, and to consider withdrawal if she or he has already been involved.  One single leak, which would be hard to avoid on such a momentous decision implicating major official action in two or more countries, could precipitate a criminal investigation backed by relentless public pressure.

4. An early election?

Section 2 of the Fixed-term Parliaments Act 2011 (the “FTPA”) sets out the only two routes to an early election. Either the Commons must pass a motion with two-third affirmative support of all MPs, or the non-confidence procedure must be triggered and the fourteen day period expire before any Government can gain or regain the confidence of the House of Commons.  The current Government could not use either route to obtain an early election in time to avoid having to send the letter under the Benn Act.  Under section 3(1) of the FTPA, Parliament cannot be dissolved any less than twenty-five working days before polling day.  The Prime Minister would be stuck in office (as caretaker) on 19 October 2019 and thus have to send the letter.

The author would like to thank Mark Dsouza, Robert Hazell, Tom Hickman QC, Gavin Phillipson, Sir Stephen Sedley, Jack Simson Caird, and Alison Young for written comments, and Alan Renwick for a helpful earlier discussion.

Jeff King is a Professor of Law at UCL, and a Legal Adviser to the House of Lords Select Committee on the Constitution. He writes in a personal capacity only.

(Suggested citation: J. King, ‘The Prime Minister’s Constitutional Options after the Benn Act: Part I’, U.K. Const. L. Blog (9th Oct. 2019) (available at: https://ukconstitutionallaw.org/))