Do Or Die; Dead In A Ditch
The British PM is overly fond of the big statement: the chance of a “no deal” Brexit is a million to one; the UK will leave the EU with or without a deal on 31st October, do or die; he’d rather be dead in a ditch than ask the EU for an extension to the UK’s A50 notice and so on. He has engaged similar rhetoric about the Brexit negotiations and his determination to get a deal, but the EU has pointed out that whilst meetings have been held, there has yet to be any substantive negotiations.
Last week, the UK finally sent the EU its proposals for a new withdrawal agreement. The EU was cordial in its response, but it quickly became clear that, from their perspective, the offer was unacceptable. Many commentators believe that the UK offer was tailored to be rejected such that the EU could be set up as a fall guy for the inevitable “no deal” Brexit that followed. This impression has been furthered by hostile, unattributed press communications from Downing Street suggesting that the German Chancellor was insisting the Norther Ireland remain permanently in the EU Customs union and that any EU nation supporting an extension would be “at the back of the queue” for post Brexit co-operation with the UK. These moves have been roundly condemned by many politicians – even former Conservative ministers.
However, despite the rhetoric, UK law requires the PM to ask for an extension to A50 notice unless he secures a deal from the EU that passes parliament or gets parliament to approve a “no deal” exit. Neither of these eventualities look credible.
An action in the Scottish High Court that would have required an interdict (injunction) requiring Johnson to comply with the Benn Act was lost; it could have resulted in the Court nominating somebody to request the extension on Johnson’s behalf. The decision is being appealed, but it is not the defeat that it first may seem. The government submitted an undertaking to the court which stated that the PM would comply with the Benn Act. The pertinent section of the Judge’s decision reads:
“The Advocate General has set out clearly and unequivocally the Prime Minister’s intention to comply with his statutory duties under the 2019 Act.
“This has been done so by way of detailed and specific averments in written pleadings put before the court on the professional responsibility of those acting for the Prime Minister and the government and with the express authority of the Advocate General for Scotland; he himself is, of course, an officer of the court.
“The Prime Minister and the government having thus formulated and presented to the court their considered legal position, there is no proper basis on which the court could hold that they are nonetheless liable to fail to do what they have in effect undertaken to the court that they will do.”
In other word, the court has accepted that Johnson will ask the EU for an extension, if required to do so, and will not attempt to subvert the act of parliament requiring him to do so.
It is highly unlikely that the EU would refuse to grant an extension and there is some discussion that they would propose an extension until next summer. This would probably give the UK time to mount a further referendum or/and hold a general election. The Benn act grants Johnson no discretion in this regard and it would be for parliament to decide to accept such an EU offer.
Most political observers expect that a vote of no confidence will be called in the Johnson administration once an extension has been obtained. This process could lead to the formation of an alternative administration (if adequate support if found in parliament) or would trigger a general election should such an administration not be formed within 14 days. In short, Brexit uncertainty rumbles on.