Initially published on 13th September and updated on 26th September
With the Brexit pea soup not looking any clearer whatsoever, Boris Johnson's hopes of an early general election are fading by the minute as I type this and of course Parliament being prorogued from the evening of Monday 9th September until 14th October. It's interesting to see what options Mr Johnson has and which of those avenues he will follow when he attends the EU summit in mid-October.
One option that the Prime Minister has is to activate the Civil Contingencies Act, 2004 by declaring a national emergency as reported on Sunday 8th September by Sam Coates, this would mean that the PM wouldn't need to request an extension from Brussels. However, the problem with declaring a national emergency when there arguably isn't one would certainly put Attorney General, Geoffrey Cox in a somewhat awkward position and likewise Justice Secretary Robert Buckland who has been reported to be on 'resignation watch' if this plan was to be followed through. This wouldn't require the approval of Parliament, providing these powers aren't exceeding of 30 days which would of course take us past the 31st October deadline if the Act was triggered on Parliament's return.
After the passing of the Hillary Benn Bill just the other day, the PM was left with very little option but to ask for an extension if a deal was failed to be struck up; however, even if Boris Johnson refuses to comply with this legislation he may not go to prison despite popular belief. A copy of the Bill shows that there is no sanction if the PM doesn't go along with the text of the Bill, although Corbyn has been quoted saying the PM can be imprisoned for not doing what the Bill says when it becomes law, The Institute for Government says Parliament's powers to punish contempt are "quite weak", and that "Parliament used to be able to imprison or fine perpetrators, as a court of law, but these powers have lapsed."
Apparently also according to the IfG the last time Parliament fined someone was in 1666. The last time it imprisoned anyone was in 1880 (in the Clock Tower). And the IfG state that there have been many calls to put the ability to fine on a statutory basis. Most punishments on non-members involves bringing them before the House to be reprimanded, presumably a member can be suspended; 5 days for a first offence and 20 on a second.
Despite the Remainers crying "coup" and "dictator" to the man asking for a general election and being denied by he who has been asking for two years, Boris Johnson would be regarded by most Brexiteers and Leavers as a 'hero' for standing up to the establishment and to Brussels, something which hasn't been done since one Margaret Thatcher. The greatest punishment for Boris Johnson seems to be suspension as an MP which in this current predicament could mean anything! This current political climate is one of extraordinary times when conventions fly out of the window, for example the impartiality of the Speaker, the concept of collective Cabinet responsibility and of course parliamentarians respecting and representing the wishes of the people.
Finally, another idea that has been floated about is that Boris Johnson would send a letter to the EU requesting an extension, however, would send an accompanying letter saying that an extension isn't the wish of HM government. This has been a subject for contest with legal experts arguing the legality of this proposal and whether or not this actually breaches the soon to be legislation which is the Benn Bill. Not only that, it has recently emerged that French President Emmanuel Macron will veto any proposed extension to Article 50 therefore boosting the chances of a Halloween Brexit and scuppering the plans of ardent Remainers before they even put them into action.
That taken into consideration, I think we should not have our last hope resting on foreign governments particularly that of France. Especially as I doubt, they will veto an extension with Macron only saying that for political means, and also given that none of the EU27 have so far supported Britain in any of their alternative proposals.
Although using the Civil Contingencies Act to temporarily nullify legislation, it would certainly be risky and political suicide for any politician in this current climate and in these extraordinary political times, therefore not really a viable option. The government has conceded that it will comply with the letter of the law although it need not comply with its spirit, that taken into account Boris Johnson has implied that he may be ready for a Supreme Court battle and de facto Chief of Staff to Number 10, Dominic Cummings, has conceded that he would be willing to take this legislation to the highest court if a deal cannot be reached. That being said a deal is unlikely to be reached and that being the case, the PM was quoted saying "I'd rather be dead in a ditch than ask for an extension" which could come back to bite Mr Johnson on the rear! Even Brexit Party Chairman, Richard Tice, admitted leaving on 31st October is unlikely now whilst on BBC's Question Time last week.
Additionally, an interesting point which was outlined in the government document, which is the first reference below, is that the Prime Minister cannot just implement any Withdrawal Agreement even if it has become an Act. This could be crucial when Mr Johnson meets the EU and EU leaders in mid October for the summit.
The Benn legislation, whilst stipulating what must be done, does not say what must not be done, consequently, this does not preclude the government from nullifying any extension request, nor provoking the EU into not offering one. Ultimately, only the EU can offer the extension, admittedly this extension can be as long or as short as we like, hence why it has been dubbed the 'Surrender Bill' as it leaves our future in another political entity's hands. It does appear that Dominic Grieve isn't exactly a fantastic lawyer as he has either failed to see this in the legislation or has completely and deliberately ignored it for his own political interests.
It was later reported by The Sun's Tom Newton-Dunn that Sir John Major himself had "found a way around the Benn Act (an Order of Council from Privy Councillors) which he suspects Boris Johnson will use to leave the EU on October 31st without a deal". Sir John said that his "fear is that the Government will seek to bypass Statute Law, by passing an Order of Council to suspend the Act until after the Halloween deadline." The former PM went onto say "it is important to remember that an Order of Council can be passed by Privy Councillors - that is Government Ministers - without involving HM The Queen."
Furthermore, Major warned the PM that "if this route is taken it will be in flagrant defence of Parliament and utterly disrespectful to the Supreme Court; it would be a piece of political chicanery that no-one should ever forgive or forget."
The Act does impinge on the Royal Prerogative and therefore it does apply as the Queen's Consent was never granted; it is an unconstitutional Act as Parliament has no business interfering in diplomacy and this remains a matter for the government, rather than backbench MPs who've been given more and more power by Mr Speaker, John Bercow himself.
References:
http://www.legislation.gov.uk/ukpga/2018/16/section/13/enacted
https://twitter.com/SamCoatesSky/status/1170768368900681728
https://www.instituteforgovernment.org.uk/printpdf/7467
https://www.instituteforgovernment.org.uk/explainers/contempt-parliament