The House of Commons has now forced the Prime Minister to send to the European Union the letter set out in the Schedule to the European Union (Withdrawal) (No.2) Act 2019 (“the Benn Act”). This is the letter which requires the Prime Minister to request on behalf of the United Kingdom a three month extension to the Article 50 period.
The purpose of this contribution is not to discuss at length the ins-and-outs of the motives of Sir Oliver Letwin and those who voted through his amendment preventing a meaningful vote on the Johnson Deal. It is inevitable to offer a few brief comments. The reason for the three-month extension in the Benn Act was ostensibly to allow for more negotiations or for consideration of what to do next should negotiations wholly fail. The period is not really necessary for passing the legislation if a decision is taken to conclude the Johnson Deal. It might well have been better had the Prime Minister spiking Sir Oliver’s guns by requesting a three week extension for that purpose alone. The real effect of this latest Letwin intervention is to create the possibility of a referendum requirement to be introduced into legislation before a Deal is actually completed – it would be of very little use afterwards. Doubtless Sir Oliver would protest otherwise. Although he is doubtless very clever and will be supporting the Johnson Deal, he has apparently been taking legal advice from Lord Pannick – who is cleverer and doubtless opposed to the Deal.
The purpose of this contribution is to counter the argument that the Prime Minister is somehow violating the Benn Act to writing to the EU discouraging its acceptance. It has been argued by many in the Remainer interest that this would be “frustrating” the Act.
The argument would be that the spirit of the Act is to obtain an extension to Article 50 in the absence of any deal with the EU. For the Prime Minister to seek to make obtaining an extension less likely is to violate its spirit.
Substantive requirements of the Benn Act
The problem with this argument is that the spirit of an Act is only relevant insofar as it can affect the construction of substantive requirements of the law concerned, or show how a Minister or other decision-maker ought to exercise his or her discretion.
In the Benn Act, the substantive requirement is that an extension of three-months should be sought by the Prime Minister in the absence of a deal being made and approved by the Commons. The Schedule to the Act sets out the precise letter which much be sent to make the request.
It should be perfectly obvious that this requirement for the Prime Minister to make an extension request will only be frustrated if something is done that prevents a legally valid request reaching the EU, and then sitting in the EU’s in-tray whilst it decides what to do. The Act contemplates acceptance by the EU up to 30 October 2019, so it would undoubtedly frustrate the Act if the Prime Minister were to withdraw the request.
So there is no frustration of the substantive requirement in the Prime Minister arguing against extension. There is an offer that is available for the EU to accept. If the EU accepts it, then Article 50 is extended.
Spirit of the Act
What of the general spirit of the Act?
It is difficult to see what part of the Act requires the Prime Minister to “say it like you mean it”. The spirit of the Act from its background history and to the fact that the Prime Minister is told precisely what the request letter should say makes it clear that the Prime Minister does not agree with the letter. There is no statutory duty to promote the acceptance of an acceptance placed on anyone that might be informed by a general “spirit of the Act” – the spirit of the Act was precisely that nothing about this extension request could be left to the Prime Minister’s judgement.
It follows that the Prime Minister has said the truth in saying that the Act is that the letter is Parliament’s letter. Parliament has dictated it to an unwilling Prime Minister. It does not disobey the spirit of the Act for the Prime Minister to point out what is not just true but notoriously true. What would disobey the spirit (and letter) of the Act would be if the Prime Minister disavowed the letter such as it ceased to be legally effective as an extension request.
Any argument that opposing extension violates the spirit of the Act can be easily tested:
- Does the Prime Minister telling EU leaders he does not want an extension prevent the EU from granting an extension? Obviously not.
- If the Prime Minister said nothing in the first instance and was asked for his opinion by one or more EU leaders, does the Benn Act require him to express support? Again, obviously not.
- If the EU sought reassurance from the Prime Minister that an extension would be well-used, does the Benn Act require the Prime Minister to give such reassurance? Again, obviously not.
- If the Prime Minister expresses his opposition to the extension in the House of Commons, does the Benn Act require him to contradict himself in correspondence and discussion with the EU? If the Benn Act does that, then does the Prime Minister have to do so in a convincing way?
If the Prime Minister can give his views to the EU if asked – and it is hard to see how the Benn Act could forbid this – then how can the Benn Act be read as forbidding him from pre-empting such questions. It is as if the Prime Minister has done what private and public bodies often do, that is, when making a proposal deal with “Frequently Asked Questions”. In this case the Prime Minister deals with, “Is this request a good idea?”
An Act that sought to regulate how the Prime Minister conducts business with foreign countries is such a constitutionally extraordinary thing that it requires express words. The Benn Act does this as to the making and form of the extension request. The Benn Act does not seek to regulate conversations around the granting of the extension, and the above examples show how difficult this would be even with express words. There are no clear words to import into the Benn Act by way of judicial interpretation some sort of general duty of positivity from the Prime Minister.
Only the request itself counts?
This leaves Remainers with only one argument left. They would need to say it was not the Prime Minister opposing the extension that matters, but that he did so in the “extension request” correspondence. The absurdity of this argument should be clear. The covering letter and absence of signature said nothing that anyone paying attention did not know. To say that these things were illegal as the frustrated the Benn Act, but telephone conversations with President Macron were legal is obviously nonsense. The covering letter of itself adds little. It would have been quite possible for the Prime Minister to achieve the same effect by simply sending off a signed letter absent any commentary whilst making it clear through every other medium what he really thought.
This argument by Remainers would be essentially an argument that the Benn Act required the Prime Minister not to undermine the extension request, but that this applied only in the exact correspondence under which the extension request is made.
The argument would flicker between an overly expansive reach of the “spirit of the law” unsupported by any substantive obligations of the Benn Act (i.e. a duty to avoid negativity towards the extension request), to a narrowly formalistic approach as to when this duty applies (i.e. only at the time of making the request, but the Prime Minister is free to criticise the request at all other times).
The Benn Act requires the making of a stated extension request and that the request not be withdrawn from the table. It says nothing about the Prime Minister having to support the request. The entire Act is a monument to the fact that he does not, and that the personal opinions of the Prime Minister can be rendered irrelevant.
Titus is a young legal academic who prefers to remain anonymous