Until yesterday, Boris Johnson had insisted that he would take the UK out of the European Union on October 31. The PM famously remarked that he’d “rather be dead in a ditch” than acquiesce to a law Parliament passed requiring Johnson to request another delay in Article 50 if a negotiated deal was not in place at that time. However, a government submission unsealed yesterday in a Scottish court contained a surprising claim that Johnson planned to comply with the Benn Act and request the extension if a deal did not materialize:
The UK government has promised a court that Boris Johnson will send a letter to the EU seeking an extension to article 50 as required by the Benn act.
The undertaking appears to contradict the prime minister’s statements on the UK leaving the EU on 31 October regardless and unattributed claims from Downing Street that he will find a way to sidestep the act.
The pledge has been given in legal papers submitted to the court of session in Edinburgh after anti-Brexit campaigners began legal action to force Johnson to uphold the act’s requirements.
That’s quite a surprising reversal … if it in fact is a reversal. Complying with the law and actually seeking a delay might be two separate things. Johnson wants to avoid a court order explicitly forcing him to cooperate with the Benn Act, which would put him at considerable legal risk if he tries to undermine its intent. Government lawyer Andrew Webster told the court in the submission that the issue was moot based on Johnson’s commitment to meet the letter of the law, but the plaintiffs claimed his public statements contradict that submission:
Claiming it would undermine the government’s negotiations with the EU to have its hands bound by the courts, Webster said: “What we have here is a clear statement made on behalf of the prime minister and on behalf of the government as to what he will do in respect of the requirements of the 2019 act. They have been put on record so they that there can be no doubt. [The] prime minister will comply with the law.”
But O’Neill quoted statements from a Downing Street source in a BBC story which O’Neill said directly contradicted Webster’s promises and proved why an interdict – an injunction to prevent to prevent Johnson breaching the Benn act – was needed.
The New York Times explains that Johnson’s team thinks there’s plenty of room in the Benn Act to sabotage an actual delay if they can keep the court out of it:
If no deal is reached, the prime minister would formally ask the European Union for a delay, as the law required, unnamed Downing Street officials told the BBC, but the government could still do “other things,” both publicly and privately, to foil an extension.
Mr. Johnson’s aides have suggested in the past that he could, for example, send a second letter contradicting the first, or vow to European officials privately that he has no intention of continuing to negotiate an orderly departure.
Those machinations could take center stage later this month, once the European Union offers a more definitive response to Mr. Johnson’s first proposal for the terms of Britain’s departure. So far, it seems doubtful that they will accept it.
The submission’s claim — sincere or not — contradicts the PM’s take-it-or-we-leave-it rhetoric regarding his latest proposal to the EU. Not that the rhetoric helped much anyway, as the EU pulled out of talks this weekend. They didn’t completely reject Johnson’s proposal, but made clear it was no basis for serious negotiations, nor do they think Johnson wants to seriously negotiate:
Boris Johnson’s Brexit plans look to be falling apart as the European commission said there are no grounds to accept a request from the UK for intensive weekend negotiations two weeks before an EU summit.
EU sources said there was no basis for such discussions, given the British prime minister’s insistence on there being a customs border on the island of Ireland.
Johnson’s chief negotiator, David Frost, along with a team of a dozen British officials, failed to convince their EU counterparts in Brussels on Friday that he had a mandate from Downing Street to compromise on what the EU sees as major flaws in the UK government’s proposals.
Frost had been seeking to rescue the British prime minister’s proposed deal after it was strongly criticised. The EU’s chief negotiator, Michel Barnier, had told diplomats on Thursday evening that the British needed to “fundamentally amend their position”.
That’s not terribly surprising, given that Johnson’s proposal requires customs checks in Ireland and allows the DUP to veto the backstop workaround as soon as next year. The EU and Ireland have staunchly opposed customs checks as a violation of the Good Friday Agreement, and the DUP veto practically exists as a provocation to Dublin. If Johnson was serious about his court submission in Scotland, he’d be better off bargaining this weekend for the delay on the basis of his proposal. Nonetheless, Johnson assured his supporters yesterday that it was full steam ahead, and not through ditches:
— Boris Johnson #StayAlert (@BorisJohnson) October 4, 2019
If Johnson truly desires a no-deal Brexit, he’s well on his way, unless outside intervention spoils his plan for undermining the Benn Act. What happens if the court doesn’t believe Johnson? Sky News’ Lewis Goodall thinks that might play well for Johnson too, even if it means acquiescing to a delay and avoiding ditches at the same time:
In response [to the Benn Act], Downing Street hinted that it might withhold royal assent from the bill, precluding it from becoming law: it didn’t. It hinted that Mr Johnson might disobey the law, before saying that he wouldn’t. Then they said there were ways around it, loopholes to exploit and, if necessary, they would take it to the courts.
Reader, let me let you into a little secret: there isn’t and they probably won’t. The truth is that for all Downing Street’s bluster, it has already, in the brief period since Mr Johnson entered Number 10, amassed quite the history of flirtation with constitutional cataclysm, only to never quite follow through.
When it did press a big red button, in the form of an unlawful and political prorogation, it backfired and insiders got badly singed. They will talk tough again, but anyone who has read the deftly drafted Benn Act knows there is no way around it. The admission in the court today was a recognition of a reality that sooner or later this prime minister will extend the Brexit deadline. …
So why the vehemence? Why, even now, is Mr Johnson tweeting that there will be no Brexit delay? The truth is the vehemence is a political act in itself. I suspect Downing Street calculates that it is better for Mr Johnson to extend but do all he can to signal to his supporters that he doesn’t wish to. That he is being dragged to it kicking and screaming and, crucially, that those doing the dragging are, you guessed it, those wicked Remainers and the institutions they dominate: parliament, the media and the courts.
The stage will be set for an election he has clearly for so long yearned to fight: he as the people’s champion versus the “corrupt” political institutions of which he has been so long a part, but apart from which he now wishes to stand.
An extension would destroy any remaining excuse for Mr Corbyn and the opposition parties not to acquiesce to an election (though there might still be some resistance). After that, Number 10 strategists think they will finally be able to go to the country, argue that they were made to extend, that the cost of not doing so would have been a Corbyn government and that if Mr Johnson is given the majority he so craves there will be no more extensions and the EU will have to deal with him without one hand tied behind his back.
Goodall hits the nail on the head — at least from the Tory point of view. They want a showdown in an election that has been primed for Brexiters’ populist messaging against the Establishment, which would complete a fascinating transformation of the Conservative Party. A court order forcing compliance with the Benn Act to extend the (somewhat) unpopular membership in the EU will outrage the Leavers and leave the Remainers wrong-footed, theoretically at least and very possibly realistically too.
Once Labour agrees to an election, Johnson can run against both the Establishment and against Jeremy Corbyn’s anti-Semitism, since Labour has been so incredibly stupid as to leave him in charge of their party despite very good advice from former Labour PM Tony Blair. In the current mood, Johnson may well get an outright majority — which would then allow him to dump the DUP and govern on his own. He could then offer a serious replacement for the backstop, perhaps by leaving Northern Ireland in the EU’s customs union as the EU first proposed. However, having stoked populist passions, that kind of solution would likely never pass Parliament, even with a Tory majority. Some might wonder why Johnson would take a worse deal than Theresa May proposed, and the same deal they forced her to reject two years ago.
That’s the problem with this strategy, and all of the others. A new election will certainly give British voters the opportunity to make the next mandate clear on Brexit, but only at the most superficial Leave/Remain level. In the end, Johnson has to solve Brexit’s Irish border problem, and do so without prompting a reunification vote and without losing Scotland to independence. Despite three years of negotiations, pledges, and delays, Johnson still doesn’t have a solution, nor does it look like he’s ever going to have one.