The prime minister intends to reject any extension of the article 50 period offered by the EU (Report, 16 September). Were he to do so, he would nevertheless be bound by European Union (Withdrawal) (No 2) Act 2019 to seek, by 19 October, an extension until 31 January 2020.
By fundamental constitutional principle, the prime minister is parliament’s servant. It follows that parliament must close the loophole spotted by Jolyon Maugham by which the prime minister might: (i) reach a withdrawal agreement with the EU; and then (ii) persuade the hardline no-dealers to support it in parliament, “safe” in the knowledge that he would thereafter refuse to comply with the various time-consuming requirements in European Union (Withdrawal) Act 2018 – including the passage of an implementation statute – for the implementation of any withdrawal agreement. Without that compliance or a revocation of the article 50 notification there would be a no-deal Brexit on Halloween.
The Scots court of session having concluded that, as a matter of fact, the purpose of the present prorogation is “to allow the executive to pursue a policy of no-deal Brexit without further parliamentary interference”, it is constitutionally essential that there be sufficient parliamentary time in which to hold the prime minister to account for his prospective actions and inactions. Any argument that this is non-justiciable and that it is for parliament to remove an errant executive can hardly apply when parliament is prorogued for the very purpose of preventing it from acting.
Max Weaver
Visiting professor, school of law and social science, London South Bank University
• Assuming Gina Miller does not succeed in her current action, another line of legal opposition to a no-deal Brexit may open up. If the prime minister does not comply with the legislation that requires him to make a request for a Brexit extension if a deal has not been concluded by 19 October, he would fall into (to borrow from Tony Blair) an elephant trap of his own making. Substantial coverage has been given to the prospect of all manner of domestic legal remedies being deployed – including imprisonment for contempt – to compel a recalcitrant prime minister to obey the law. But such extraordinary dramatics may be legally quite unnecessary for the purposes of preventing a no-deal Brexit.
The EU’s withdrawal mechanism, article 50, remains a part of UK law until we leave the EU. It requires that withdrawal is conducted “in accordance with [the withdrawing country’s] constitutional requirements”. Since one of our constitutional requirements is that government ministers must act as statute requires, it is quite plausible to suggest that if the PM refuses to comply with the new legislation, the withdrawal process would no longer be being conducted in accordance with our constitutional requirements. That process would then be in breach of article 50 and would come – as a matter both of EU and UK law – to a grinding halt. A simple declaratory judgment of the high court or court of session that a prime ministerial refusal to comply with the statute is unlawful would likely suffice for these purposes; no need would arise for a mandatory order to be issued against Johnson or for contempt proceedings be initiated against him.
Ian Loveland
Professor of Public Law, City, University of London
• Johnson’s certainty that we will leave without a deal makes sense when he says “I think that they’ve had a bellyful of all this stuff”, as revealed to Laura Kuenssberg. His behaviour is plotted to be sufficiently provocative to drive the EU to refuse to allow us an extension, so we will leave without a deal on the 31 October. Therefore he can lay the responsibility with the EU. The law will be an irrelevance.
Yvonne Singer
Bollington, Cheshire
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