Boris Johnson could circumvent a law preventing him from delivering a no-deal Brexit by utilising a major loophole in the legislation because there’s a flaw in the so-called Benn Act which was enacted by parliament earlier this month, that could force MPs opposed to a no-deal to take countermeasures.
The loophole means that the prime minister would be able to legally take Britain out of the EU without a deal even if MPs had voted for an agreement and under the terms of the Benn Act, Boris Johnson must ask the EU for a further delay to Brexit if MPs have not approved an exit deal by 19 October.
Under the terms of the Benn Act, Mr Johnson must request the EU for a further delay to Brexit if MPs have not accepted an exit deal by 19 October and if a deal is approved, the duty to request an extension would be overridden.
Nonetheless, there is no legal duty on the government to actually implement the terms of the deal, even if MPs have approved it, so Boris Johnson could therefore just decline to bring forward the Withdrawal Bill, which is required to implement the deal in law.
In that situation, MPs would have approved a deal but it would not have been formally approved in law, meaning the United Kingdom would leave the EU on 31 October without a deal in position.
The suggestion provoked speculation that Boris Johnson could tell Eurosceptic Tory MPs in the European Research Group (ERG) to vote for a deal while secretly declaring that he would not implement it and the 2018 EU Withdrawal Act sets out additional obligations that the government must reach before a deal can be completely approved, including a new law implementing the agreement.
Summing it up, if the Commons supports the withdrawal agreement but these further obligations are not settled before 31 October 2019, then two results follow. First, the Benn Act will not apply to require the Prime Minister to request an extension from the EU. And, second, we will leave with No Deal.
So, imagine the Prime Minister says secretly to the ERG ‘support my withdrawal agreement and I will deliver no-deal.’ In those circumstances, with the assistance of some Labour MPs, the Commons might support even Theresa May’s withdrawal agreement.
The Prime Minister would, therefore, have avoided the obligation in the Benn Act to request an extension and could deliver no-deal and it follows reports that Dominic Cummings, Boris Johnson’s top adviser, has told government aides that ministers could prorogue parliament again in October if the Supreme Court, which will hear an appeal this week, rules that the initial suspension was illegal.
And it’s thought that Boris Johnson could suspend parliament again once MPs had voted in support of a Brexit deal, thereby circumventing the Benn Act, therefore denying his opponents the chance to pass further legislation blocking a no-deal.
The loophole has been discussed with MPs and they’ve been compelled to take countermeasures. This should include refusing to vote for any Brexit deal before 19 October, and those who want the Withdrawal Agreement should refuse on the grounds that, by voting for it, they may well be delivering a no-deal.
Boris Johnson would then be required to ask for a Brexit continuation until 31 January, giving loads of time for the withdrawal agreement to be approved and completely approved, if MPs consented to it but passing a deal which relies on votes from the Tories who have been stripped of the whip and the duo and or a fair number of Labour MPs who back a deal.
Nevertheless, if there’s a scent of underhand dealing like this, obviously Labour isn’t going to support it and it’s likely the whip-less Tories won’t either and if the deal makes different arrangments for Northern Ireland then the rest of the United Kingdom, it’s also possible to put off the DUP and perhaps the ERG consider Boris Johnson enough of a liar not to trust him to keep his word and go without a deal but whichever way he turns, this despicable Prime Minister has no support for his derangement.