Shortly before midday on Tuesday, politicians across Europe began a finger-pointing exercise of continental proportions after Downing Street claimed the EU had made a
Brexit deal “impossible”.
Sources close to
Boris Johnson laid the blame solely at the feet of German Chancellor
Angela Merkel, whom they claimed had made clear that an agreement was now “overwhelmingly unlikely”.
Cue much shouting on
Twitter from politicians of all stripes.
Labour’s Shadow Brexit Secretary Keir Starmer said the comments were a “cynical” attempt by No 10 to “sabotage” negotiations with the EU.
Nigel Farage went all Braveheart and said it was “time to choose freedom”.No
British Government could ever accept
Germany telling us that part of the
UK has to stay in the EU. The choice now is clear: A clean break Brexit, or stay in a new militarised empire. Time to choose freedom.—
Nigel Farage (@Nigel_Farage) October 8, 2019Donald Tusk, the president of the European Council, told Johnson to stop playing “some stupid blame game” – before immediately blaming him for the current impasse..@BorisJohnson, what’s at stake is not winning some stupid blame game. At stake is the future of Europe and the UK as well as the security and interests of our people. You don’t want a deal, you don’t want an extension, you don’t want to revoke, quo vadis?— Donald Tusk (@eucopresident) October 8, 2019But leaving aside all the noise, mud-slinging and generally tedious antics of our elected officials, the basic situation remains largely unchanged: The PM has maintained his position that the UK is leaving the EU on October 31, deal or no deal, while opposition MPs are working to force him to request an extension if a deal cannot be reached in time.
Oh, and there’s a slight chance we could end up in a situation where the
Supreme Court once again decides what happens.
Here’s where things currently stand.What’s the latest from Brussels?Regardless of the contents of Merkel’s call with Johnson, we already knew EU leaders weren’t satisfied with what the UK was proposing – on Friday evening member states agreed they “do not provide a basis for concluding an agreement”.
MPs have given Johnson a deadline of October 19 to agree a Brexit deal with the EU or ask for a delay to the UK’s exit until January 2020.What about the Benn Act?Last month’s passing of the so-called Benn Act forces Johnson to ask for an extension to Article 50 to avoid a no-deal exit on October 31.On Monday, legal action aimed at forcing Johnson to send a letter requesting an extension was dismissed by a Court of Session in Edinburgh, after judges accepted the PM’s lawyers’ assurances that he would do just that.
But the manoeuvring from Downing Street has led critics to believe Johnson is planning to somehow bypass the law.What manoeuvring?For a start, the PM’s tweets. He has repeatedly stated “no delay” regardless of whether or not he can strike a deal with the EU.New deal or no deal - but no delay. #GetBrexitDone#LeaveOct31 🇬🇧— Boris Johnson (@BorisJohnson) October 4, 2019In addition, on Tuesday the government released its “No-Deal Readiness Report”.
Although it reiterates that the government would prefer to leave the EU with a deal and says “will work to the final hour to achieve one”, it’s difficult to view this as anything other than an acknowledgement that a no-deal Brexit on October 31 is increasingly likely."In any significant endeavour, it is the responsibility of government to assess all the risks involved & ensure plans are in place to deal with every eventuality."👆 @MichaelGove on the Government's No-Deal Readiness Report 👉 https://t.co/StCppk2Ztmpic.twitter.com/65wxVZrxnN— Cabinet Office (@cabinetofficeuk) October 8, 2019But... what about the Benn Act?Johnson has already said he would rather be “dead in a ditch” than ask for a delay as specified by the Benn Act. But just how he’s going to circumvent the law is currently a mystery.
Chancellor Sajid Javid joked at the Conservative party conference that there could be more than five ways around the Benn Act, and other cabinet ministers have hinted there may be a way of wriggling out of it, PA Media reports.
1) EU law supremacy?
Commons Leader Jacob Rees-Mogg told a fringe event at the Tory conference that “Article 50 and EU law overrides the Benn Act”.
As Article 50 is outlined in EU law, this could, if Rees-Mogg’s assessment is correct, supersede the Benn Act.
2) Ask
Brussels to reject an extension
Johnson could fulfil the pledge to request an extension if a deal is not agreed by October 19, and then reject it.
It is thought he could do this by sending a second letter making clear the government does not want a delay. He could also veto the extension – or ask another member state to veto on his behalf, although he isn’t exactly on the best terms with them at the moment.
3) A loophole in the law
In a speech last week, former prime minister Sir John Major said Johnson could use “political chicanery” and act “in flagrant defiance of parliament”.
Major said a legal mechanism called an Order of Council could be used to suspend the law prohibiting a no-deal Brexit until after October 31, by which time it would be redundant as the UK would have already left the EU.
4) Use a different loophole on the law
Use an Order in Council under the Civil Contingencies Act which allows the government to suspend laws to deal with an emergency.
5) Trick MPs
Persuade MPs to vote for a deal, but then don’t allow them to vote for the legislation implementing it. Where does the Supreme Court come into it?On Sunday, the Telegraph reported that Johnson was prepared to go to the Supreme Court in order to avoid having to write a letter asking for a delay to Brexit, as stipulated by the Benn Act.
This extraordinary situation would see Lady Hale and her fellow justices potentially having the final say how and when the UK leaves the EU.
In such a scenario, Johnson would have to give evidence to the court explaining his decision, and government sources have said it is vital for him to be seen to be forced to write the letter rather than doing so voluntarily.
One source said: “The real drama would be if Boris Johnson were in court calling it the ‘Surrender Act’. He would almost be happy if the judge said ‘you can’t call it that’.”
The Supreme Court has already dealt Johnson one huge blow when last month it ruled that his controversial decision to suspend parliament was unlawful.Related... Donald Tusk Tells Boris Johnson To Stop Playing 'Stupid Blame Game' In Angry Tweet Amber Rudd Brands Dominic Cummings 'Angry And Desperate'