Tuesday 17 September 2019

Third Time Lucky? The new law on extension of UK membership of the EU

Professor Steve Peers, University of Essex


One of the many recent controversies about the Brexit process has been about the ‘Benn-Burt bill’, a new Act of Parliament that was fast-tracked through the legislative process earlier in September against the government’s wishes. It requires the Prime Minister to request a further extension of the UK’s EU membership; he has said that he will not do so. Some believe (wrongly) that the new law bans a ‘no deal’ exit from the EU.

To explain and analyse the new law, given the broad public interest, this blog post takes a question and answer format. At the end, there’s a longer discussion of the linked question of whether the UK would have to nominate a new European Commissioner in the event of an extension of EU membership.  

Q             Does the bill ban a no-deal outcome?

A             No. Its main purpose is to provide for the possibility of a further extension of EU membership. However, to avoid a no deal outcome it is necessary at some point – whether before Oct 31 or at a later date if membership is extended – to either ratify a withdrawal agreement or revoke the notification to leave the EU. The new law makes no mention of revoking that notification, and although it refers expressly to the possibility of parliament voting again on whether to accept a withdrawal agreement, it does not require Parliament to accept an agreement (or even to vote on whether to accept one).  It also provides for the possibility of parliament voting to accept no deal – although this seems unlikely given that Parliament passed this Act with the express intention of avoiding an imminent no deal outcome.  

Q             Does the new law block Brexit?

A             No.  As noted already, it provides expressly for the possibility of Parliament voting again on whether to accept a withdrawal agreement, or Parliament voting to accept no deal. Both of them are forms of Brexit. Also as noted already, it does not refer in any way to the revocation of the notification to leave. Nor does it refer to another referendum on whether to leave. Although some supporters of the bill support another referendum, the bill itself is silent on this. Extending EU membership to another date still leaves intact the possibility of leaving on that date with no deal (as the default position), or leaving at that date or earlier if a withdrawal agreement is ratified.

Q             Does Boris Johnson have to request an extension of EU membership?

A             In principle, yes (if he’s still the Prime Minister). He must request an extension to January 31 2020. However, there are exceptions. If Parliament votes for a withdrawal agreement or for a no deal no later than 19 October, then the obligation to request extension is never triggered. If Parliament votes for either before 30 October, then the obligation to request extension ceases to apply: the Prime Minister in that case ‘may modify or withdraw the request’.

It seems unlikely that Parliament would vote for no deal (given that the new law was backed by opponents of this outcome), but what about a withdrawal agreement? Here’s there’s an apparent loophole, as pointed out by Jolyon Maugham: it’s possible that Parliament could vote in principle to approve a withdrawal agreement, thus disabling the obligation to request an extension, but then not pass further measures in time for the agreement to be fully ratified by October 31. (See further Maugham’s analysis of the limited time available to pass the further measures).

According to the ‘Kinnock amendment’ added to the Act, the request has to be for the purpose of passing a bill to implement the withdrawal agreement, including provisions giving effect to inter-party talks, particularly possible amendments to the political declaration on the EU/UK future relationship (discussed here).  However, this is not reflected in the letter of request which the Prime Minister must send (the letter is a Schedule to the new law), and does not impact upon the separate obligation to accept (subject to an unrelated exception) an extension decision if the EU adopts one. There’s no explicit obligation to hold a vote on a withdrawal agreement, or to publish and/or vote on a bill to implement that agreement.

Q             Does the EU have to extend membership?

A             No. That’s up to the political discretion of the EU. It must act to adopt an extension decision with the unanimous vote of the 27 Member States’ heads of State and government (not including the UK). (I commented earlier on the legal issues of the first extension decision and the second extension decision.) It remains to be seen what the EU will do; remember that rumours about Member States vetoing extension proved to be unfounded in spring.  The European Commission and European Parliament have no formal role in the extension decision, although they can express a point of view that might influence national leaders.

Q             Does Boris Johnson have to accept an extension of EU membership, if the EU adopts one?

A             Yes, subject to a veto by Parliament. If the extension is to the date of January 31, the Prime Minister must accept it. Otherwise it’s possible for Parliament to veto it. It’s therefore false to claim, as some did, that the UK will be obliged to accept any extension decision, no matter what (see further my Prospect article on this point).

Some have argued that Johnson could veto the extension decision as a member of the European Council. This is false: Article 50(4) says that only the remaining Member States vote on this issue. The UK’s role comes at the stage of accepting that decision or not; and the new law specifically regulates that issue.

What if the EU sets conditions for extension? The CJEU has established in its Wightman judgment that the current status of a Member State cannot change during any extension; demanding that a Member State gives up its opt outs, etc would violate that principle.

There is a complicated question of the UK appointing a European Commissioner, which would conversely arguably be simply a matter of complying with its existing obligations as a Member State. I discuss this further below.

In the event that a modest extension goes ahead before the next election, this would shoot the fox of those arguing that the new law could mean the ‘imposition’ of a potentially indefinite or very lengthy extension, since it would be obvious that this had not taken place in practice.

Q             Would national law have to be changed to give effect to the extension of EU membership?

A             Yes.  The new law obliges this to take place automatically. The recent ‘commencement order’ setting the date of Brexit of October 31 would equally be delayed coming into force, as Professor Mark Elliott has explained.

Q             What else happens if an extension decision is adopted?

A             The UK will leave the EU on the new date without a deal, unless a further extension is granted, or it ratifies a withdrawal agreement, or it revokes the notification to leave the EU. It could also leave the EU beforehand if it ratifies a withdrawal agreement. Furthermore, some believe that the departure date can or must be brought forward to an earlier date if the UK requests it, but this interpretation is disputed. Note that, according to the Wightman judgment, the UK can revoke its notification to leave unilaterally, so cannot be subject to conditions like giving up opt-outs in return for staying.

The new law is silent on any of these further developments, including any further extension request. However, it does state that if an extension (presumably of any length) is granted, then the government must publish a report by 30 November 2019 on the progress of negotiations on the UK’s relationship with the EU. It must also table a motion in the Commons and the Lords about the report. If that motion is amended or rejected, the government must publish a further report by 10 January 2020 with a plan for further such negotiations. In any event, the government must make a further report on the progress of negotiations every 28 days starting on 7 February 2020 unless an agreement with the EU is reached or the House of Commons passes a resolution otherwise.

Politically, of course, developments in the period after an extension might be affected by a general election and/or a possible change of government.

Q             What if Boris Johnson refuses to comply with the law?

A             Politically, there might be challenges in Parliament. However, attempting to change the government in a short space of time might be legally and politically difficult. So might a further attempt by Parliament to pass another law circumventing the Prime Minister’s refusal to act. If the Supreme Court accepts that there are no judicial limits on the prorogation of Parliament, the government might advise the Queen to prorogue it again, which would cut off any attempts at legislation or confidence votes.

Legally, the possibility of non-compliance has already been brought before the Scottish courts, in a pending case.  It remains to be seen what remedies courts might be willing to order in order to enforce the law. Interim measures might be made in the event that the clock runs out before any appeals can be heard and/or decided.

Some have argued that the new law is illegal, because it infringes too much upon the executive’s power over international relations. If such an argument is raised in litigation, it would remain to be seen if a court accepts it; but the advocates of this view have not pointed to any precedents in which a court struck down an Act of Parliament on such grounds.

Q             Does the Act violate EU law?

A             No. This is an incredibly weak legal argument. Article 50 says nothing about a request for an extension, and therefore nothing about how a request must be made. It does refer to the withdrawing Member State accepting a request, but says nothing about how that process of acceptance takes place. It refers to national constitutional requirements determining whether a notification of leaving the EU is sent, but does not define what those requirements are. In the Shindler case (discussed here), the EU courts have said that it’s up to the UK’s legal and political system to define what these requirements are, and whether they have been met.

However, it’s possible that the EU might have legal or political doubts about considering a request for extension that is not from the Prime Minister in person. This remains to be seen.

Q             Does the UK have to appoint a European Commissioner?

A             It’s complicated. Article 17 TEU says that there shall be Commissioners equal to 2/3 of the number of Member States, but the European Council can change this number. It did so in 2013, with a decision that says that the number of Commissioners is equal to the number of Member States. The preamble refers to the Commission having ‘one national of each Member State’. Article 17 says that Commissioners must be appointed ‘on the basis of the suggestions made by Member States’.
At the time of the second extension, it was debated whether the UK would have to hold elections to the European Parliament. It was decided that it would, since the usual obligations of membership continued to apply. Logically the same applies to another extension of membership as regards the Commission.

There are several legal issues and possibilities though. EU law does not expressly state that a Member State must nominate a Commissioner, although arguably that is an implicit obligation. This could be enforced by legal proceedings, which could in principle be fast-tracked. The EU might be willing to approve an extension without a nomination (although that might be legally challenged), or to overlook the absence of a nomination if the extension is short. On previous occasions, the appointment of a new Commission has been delayed for a few months or weeks for various reasons. It is not clear whether or not the actions of a Commissioner lacking in numbers would be legal or not; but the new Commission could hold off from making proposals until the status of the UK was clearer. Most obviously, the European Council could amend the law so that only 27 Commissioners need to be appointed (that requires a unanimous vote, including the UK, although there can be extensions).

The notion of appointing a Commission with two Commissioners from another Member State might be challenged in light of the preamble to the decision on the number of Commissioners, which (as noted above) refers to one national of each Member State. Another notion of appointing a British Commissioner whom the government did not suggest might be legally problematic, due to the reference in the Treaty to making appointments based on ‘suggestions’ from Member States. Politically, either of those two outcomes might backfire politically on Remain advocates, for obvious reasons.

Analogies with non-replacement of retiring Commissioners on previous occasions don’t work, because the Treaties have an explicit procedure for non-replacement in those cases, and this is distinct from appointment of a new Commission.

It would remain to be seen how the EU might try to address these issues in the event that it wishes to adopt an extension decision and the UK is unwilling to suggest a nominee for the new Commission. Politically, the refusal to nominate a Commissioner might be intended to deter the EU from offering an extension decision in the first place. Time will tell whether it becomes an issue in practice.

Barnard & Peers: chapter 27
Photo credit: Anadoku agency


  1. You say " If such an argument is raised in litigation, it would remain to be seen if a court accepts it; but the advocates of this view have not pointed to any precedents in which a court struck down an Act of Parliament on such grounds", but in fact the 1985 Weights and Measures Act was struck down by the courts in the Metric Martyrs' case. Mr Justice Lawes' judgment produced the principle that there are constitutional acts that can only be repealed by express language - in this case the Weights and Measures Act was deemed to contravene the European Communities Act 1972 without expressly repealing it. The EU withdrawal extension bill requires the prime minister to advise the queen to violate the Coronation Oath (see the Coronation Oath Act; the oath is "to govern us according to our laws", not laws made abroad), requires the PM to violate his privy council oath (not to hand the queen's pre-eminences and authorities over to a foreign potentate) and is arguably contrary to the Treason Act and a host of other acts, which all assume the prime minister has loyalty to the Crown, and does not serve the interests of foreign powers. The bill could be challenged on this basis, but it would still require the justices of the Supreme Court to wish to play ball. There is enough there to allow them to strike the law down if they wish to - with only their personal political views (improperly) amounting to any obstacle.

    1. You have the facts of Thoburn wrong. It was a challenge to secondary legislation, not an Act of Parliament, and that challenge failed. Referring to EU law as the basis for challenging the validity of Acts of Parliament only works if those Acts arguably conflict with EU law; Factortame did not create some general rule allowing the courts to strike down an Act of parliament on any basis. Having referred to implied repeal, you make no arguments that the Acts you refer to are constitutional statutes, which is an essential part of the doctrine. There is nothing in the new Act (it's not a bill now) requiring the PM to advise the Queen; and the new Act, like other legislation related to the membership of the EU, is made in the Westminster parliament, not "abroad". Suggesting that an Act of parliament on extension of EU membership concerns "foreign powers" is jingoistic legal nonsense.

  2. Professor Peers, you won't post this, but you are clearly a pretty embittered Remainer. The fact is the 1985 Weights and Measures Act came after the 1972 ECA and allowed for metric measures. It should have been upheld. The Acts I referred to are constitutional statutes - the Metric Martyrs judgment specifically cited the Coronation Oath Act as a constitutional statute. I don't believe the Treason Act was so cited, but it is clearly a constitutional statute too. You are right, the new Act doesn't require the PM to advise the Queen of anything, but rather to go behind the Queen's back and agree to whatever other nations agree to impose on Britain - which would prevent the Queen from governing us according to our own laws. Heath's advice to the Queen in 1972 to assent to the ECA was of course illegal, and no doubt why for years the government refused to publish the text of the privy council oath in Hansard. The Act was made in Westminster, but clearly provides for continued imposition on the UK of legislation on all sorts of matters from abroad. You are completely wrong to claim that the EU Withdrawal Extension Act does not concern foreign powers. No prime minister can give the Queen's authorities, pre-eminences and jurisdictions to a foreign potentate (the exact wording of the privy council oath), so our membership of the EU was all along a kind of coup.... I can't imagine the left-wing claptrap you teach your students in university. Are you in one of the universities that has effectively abolished freedom of speech and of debate? You're part of the problem.

    1. There's nothing in my post about what is the best way forward. In fact I have no strong objection to leaving the EU with a withdrawal agreement. But in any event that doesn't affect my analysis of the law. In particular, I don't agree with the "Brexit is illegal" or "it's illegal to leave on a no deal basis" takes. Since I believe simultaneously that a no deal outcome is a terrible idea but that it is the legal default in the absence of a withdrawal agreement or revocation, the claim that my legal reasoning is driven by my political preferences is plainly nonsense.
      Again you have misunderstood the Thoburn case. To repeat: the Weights and Measures Act was not itself at issue; secondary legislation amending it was; and the validity of that secondary legislation *was* upheld. And you have made a further inaccurate claim: para 62 of the Thoburn judgment does not mention the Coronation Oath Act as a constitutional statute.
      As I suspected, your argument rests on the presumption that the EEC membership of the UK was illegal from the outset. This is utterly absurd: as judgments such as Miller 1 have confirmed, the UK's membership of the EEC/EC/EU was based on a combination of the exercise of the prerogative and Acts of Parliament.
      In fact, your argument defeats itself, since Thoburn famously recognised that the ECA *is* a constitutional statute. So to defeat its validity on the basis of a prior constitutional statute (even if you could prove that the Acts you refer to were constitutional statutes, which you have not), you would need to work out a hierarchy *between* constitutional statutes. Thoburn does not discuss this issue. And just for fun, I would submit the possibility that the Benn-Burt Act is *also* a constitutional statute.
      Finally, as for your wild speculation about what the university does and what I teach, these inaccurate and irrelevant ad hominems merely show that you have run out of any substantive arguments to make.

    2. To add to my points: para 207 of the Supreme Court's HS2 judgment makes no mention of the Acts you refer to in its list of "constitutional instruments"; and the issue of conflict *between* constitutional statutes/instruments which I refer to is raised in para 208 of that judgment, but not further discussed. Needless to say, HS2 is *another* Supreme Court judgment which takes as a given that EU membership was, at the time, legal (there are, of course, others).

      Also, at para 207, the UKSC confirms the interpretation in Thoburn that the ECA is a constitutional statute. It may be that that EU Withdrawal Act 2018 is another constitutional statute; but as I note in my blog post, the Benn-Burt Act *expressly amends* a provision in the 2018 Act referring to the process of amending 'exit day', thus answering any "no implied repeal" argument that might conceivably be made in this respect.

    3. Professor Peers, your statement that secondary legislation was at issue in the Thoburn case is not a weighty point, because if all acts of parliament ranked equally then secondary legislation under the 1985 act would have been upheld. You are right that I was wrong to say the Weights and Measures Act was "struck down", as it appears to be in force still. But you are obviously twisting yourself into a pretzel not to notice that I'm pointing out the (claimed) hierarchy of acts of parliament. You are probably right on paragraph 62 of the Thoburn judgment, which I haven't had time to look up again, but one of the judgments consequent on the Metric Martyrs case mentioned the Coronation Oath Act. I will leave you to look up whether it was the parking fines case that followed on from it (where it was pointed out that, if the Bill of Rights is unamended, then parking fines are illegal as not handed down by a judicial authority, with the case being waived away in 2 minutes by a judge who said parking fines are not "fines", but "civil responsibilities"). One of the judgments in the upper courts referencing the Thoburn case mentioned the Coronation Oath Act. In any case -- and being a professor of law you must be able to understand this -- whether something is or is not a constitutional act does not depend on being listed in the Thoburn judgment. The judge was just listing examples of the type of acts that could be included, not giving a comprehensive list. It would remain open to any future judge to hold that the Treason Act and the Coronation Oath Act were constitutional acts -- or even that the ECA 1972 didn't expressly repeal all previous constitutional acts it stepped on... I don't have time to look it up: maybe you can tell me whether the ECA 1972 repealed all relevant parts of the Act of Union? The Act of Union specified that England and Scotland were to be governed by a single parliament in Westminster - not by Brussels. So you see the Thoburn judgment was problematic from a number of angles.
      You say the judges -- and they are Remainers because membership of the EU gives scope for judicial activism -- hold that membership of the EU and preceding bodies was based on exercise of the prerogative and Acts of Parliament. But the Queen simply has no lawful right to contravene the Coronation Oath. The Queen did not assent to the Oath with the words "all this I promise to do unless I decide to exercise my prerogative right not to do it". Judicial judgments upholding membership of the EU are judicial perjury -- a violation of their judicial oaths of office.
      Finally, the Benn-Burt act is not a valid constitutional act, although it is an act that, if upheld, touches on the constitution. The point of what I am saying is this (and you have sought not to understand): arguing that the ECA outranks later acts of parliament reflects a decision by the judiciary that the correct way round would be to leave the EU first, and then parliament can do what it wants regarding provisions of the ECA act. In a similar fashion, the Benn-Burt act would need to first abolish the monarchy and then its provisions would stand. To argue we still have a monarchy, still have a Queen required (it's not a choice) to govern us "according to our laws and customs", still have a political class in the privy council prevented from seeking to transfer the queen's authorities to foreign persons or organisations, still have a duty of loyalty to the crown and a legal requirement (Treason Act) not to work for foreign governments -- and still have the Benn-Burt Act on the statute books is an absurdity. The Benn-Burt Act impliedly repeals the entire constitution, it impliedly abolishes the monarchy and impliedly abolishes the loyalty of the Queen's ministers to the Queen. The whole of English common law goes if this little Actlet is upheld.

    4. Another argument based on misconception of basic constitutional law. Of course secondary legislation has a different legal status from primary legislation: the former can be found ultra vires and be struck down by courts; the latter (except for breach of EU law) cannot.
      You have not answered the point about how to resolve a conflict between constitutional statutes. The most obvious approach - giving precedence to the most recent one - would not help your cause. You can't name the case which refers to the Coronation Oath Act, having previously falsely claimed that Thoburn did; it's up to you to prove your argument. Adding it to the list, if it happened, does not answer the point about how to resolve conflict between constitutional statutes.
      It's notable that HS2 does not suggest the conflict is resolved by holding an Act invalid; and you have suggested no authority to support your implied claim that this is the case.
      The judiciary has clearly not said that Parliament must leave the EU before amending the ECA; indeed Miller referred to action by Parliament first, and the Withdrawal Act was passed before exit day. It's literally a non sequitur to claim that classifying the ECA as a constitutional statute follows from determining the process to leave the EU, since Thoburn long predates Miller. I haven't 'sought not to understand' this argument, since you didn't make it before and it's confused, for the reasons I point out.
      And you conclude with more legal jingoism. The notion that judges are all doing illegal things by upholding our EEC/EU/EC membership - based on Acts of Parliament and a government, responsible to parliament, exercising the prerogative - remains utterly absurd. And you expect the judges who you believe have been acting illegally for decades will overturn this Act? It's an incoherent argument.

  3. Of course, the whole thing can deliberately go round and round in circles. But our fundamental law is not statute law; it is the Common Law. The Queen's right to reign is a Common Law right (the Act of Succession brought in the House of Hanover, but the fact that there is a monarchy stems from "time immemorial" and is a facet of the Common Law). Parliament's right to sit -- although there are laws incl the Bill of Rights about the need for frequent parliaments - is ultimately a Common Law right to sit (it would be circular for Parliament to decide whether Parliament had the right to sit). The Royal Courts of Justice also sit by virtue of the Common Law (once again there are statutes on this, but the ultimate history shows that the courts exist by virtue of the Common Law dating back before the conquest, and to the post-conquest tussle between royal courts, ecclesiastical court, etc). The Coronation Oath and the Privy Council Oath - are fundamental to the whole of our law. The Treason Act 1351 makes it an offence to "be adherent to the King’s Enemies in his Realm, giving to them Aid and Comfort in the Realm, or elsewhere". All foreign countries, even those notionally allied, are the king's enemies, as no country has permanent allies, only permanent interests as Palmerston said. The EU is one of the Queen's enemies, and statutes claiming that the PM has to work for the EU against UK interests are not validly on the statue books.

    1. If you're suggesting that Parliament cannot amend the common law, that's not a serious claim. Again: defining the EU as an enemy is jingoistic legal nonsense. I notice that you do not adduce case law to support any of your arguments here.

    2. Professor Peers, I accept that the self-interest of the judiciary may mean that they claim rights they do not have, and your call for "case law" merely relates to previous judgments by the judges. Sir Edward Coke, Lord Chief Justice in the early 1600s, argued that the courts could overturn statutes that violate the common law. How did we get from there to the point where the judges all agree that statute law is the fundamental law of the land and not the common law (where do they think Parliament's right to sit came from?). I did not actually say Parliament cannot require the PM to negotiate an EU treaty from the EU's interests. I simply argue that Parliament would need to abolish the monarchy first. Read the Privy Council oath. If I were Johnson I'd refuse to violate the Privy Council Oath,. If the SC ruled against him on this, I'd advise the Queen to use her reserve powers to suspend the SC - or pack her bags. He needs to tell her he will run in the next election on an explicit platform of deposition of Elizabeth II if she continues to govern in contempt of the Coronation Oath. This Royal shtick of "ooh, Philip, I had my fingers crossed when I took the Coronation Oath, and anyway I was advised to violate it, and anyway convention says that I must violate the Oath when advised to" is really getting old.

    3. With friends like you, the institution of constitutional monarchy needs no enemies.

  4. Mr. Peers, Your Patience is admirable!

  5. So in amongst all of this legal jargon, can you explain how supreme Court judges were able to intervene on perogation as the PMs actions were apparantly unlawful as they had the effect of thwarting parliamentary democracy. Given that the Benn act was allowed to be heard by a self serving speaker and passed no scrutiny being its 2nd hearing, being that it blocks not only parliamentary democracy but DOES pass control of our country by rebel MPS to a foreign body, it surely IS treason. The verdict of supreme Court surely applies the same principle as was used against him? I really don't believe he would be calling a 2nd queen's speech if the Queen did not agree with his actions. I believe he abstained from providing a witness statement in court so as not to make officially public the queen's view on brexit. It seems perfectly clear to me that he has her backing

    1. It was Parliament's decision to deal with the Benn Act on the fast-track basis that it did. The Act, like any Act, is the *exercise* of parliamentary democracy; it was Parliament's choice to take that approach to requesting another extension of EU membership. As I point out, Parliament retains the power to turn down an extension that is other than the date of Jan 31st, therefore the Act does not give 'control of our country...to a foreign body'. This quite obviously does not meet the legal definition of treason. Whether the PM has the Queen's backing was not a legal issue for the Supreme Court's judgment, which was mainly concerned with the legality of the advice that the government chose to give the Queen.

  6. Prof Peers, an interesting discourse for sure. however pray explain :- does Parliament have full power to turn down an extension with any possible conditions required by the EU, ON Jan 31st itself? If Parliament could be thus tied in ANY way, then the act does indeed give control of our country -- to a foreign body ?
    Also, are you entirely happy or sure that (inter alia) Article 50 allows the EU to effectively hive off and force us to accept that a portion of our country must remain BOTH in the customs union and single market in potential or indeed actual perpetuity ? If our "constitutional requirements" were so severely disregarded then surely this would not only be also treasonous but would contravene their own (TEU) law.
    The tying of our own Executive, Parliament, and Monarch's hands seems to me to have been tolerated not only beyond all reasonable limits, but must contravene so many legal provisions, far beyond those above.
    Your expert views on these two points will be greatly appreciated.

    1. Parliament has passed this law, and could always change its mind; and parliamentary sovereignty means that it can limit the powers of the executive/monarch. I won't publish any further comment hysterically claiming "treason". The critics of the law have not adduced any serious argument that it is unlawful. Constitutional requirements refers to the withdrawal process, and it's up to the UK to determine what they are. The Supreme Court has said that only the unification of Ireland triggers the principle of consent. Northern Ireland is not in the single market in perpetuity on any interpretation of the withdrawal agreement; the customs union can be replaced by different arrangements. I think there is an issue of how quasi-permanent the backstop provisions are, but that's a different issue. Parliament has bound the UK to accept an extension to Jan 31st if offered, but as I point out the conditions of membership could not be changed. In extremis parliament could vote to amend the Benn Act if it had a problem with an extension to Jan 31st after all for whatever reason.

  7. Given the Benn Act did not get Queen's consent for the diminution of the prerogative, Johnson may argue any effects of the Act do not touch use of the prerogative, and thus he may reject the EU's terms for an extension. This would end up in the courts - I recommend he advise the Queen to sack the 11 errant "justices" of the "Supreme Court" by use of the reserve powers and appoint new ones. If the Queen demurs, just tell her her power is to counsel, advise and warn, but having delivered a warning, she must follow the PM's advice on use of the reserve powers. This would put Brenda Hale where she belongs on the dole queue...

    1. Complete nonsense. Queen's consent comes in at the debate stage, and ends debate on a bill if there is no necessary consent. On the Benn bill the Speaker ruled that Queen's consent did not apply, so no issue arises. You must know that the PM cannot simply claim that Acts of Parliament are invalid or do not bind him.

    2. Professor Peers, Bercow incorrectly ruled the Act did not touch the prerogative because the Cooper Letwin Act did not require Queen's Consent. But the Cooper Letwin ACt did not require May to accept the EU's extension, but the Benn Act does - do it does touch the prerogative. Johnson could argue the Benn Act is valid, but its only effects are those that do not touch the prerogative.

    3. He would need to convince a court of this interpretation. Until he manages to do that, the law applies and the PM has obligations pursuant to it. I note that the government has not adduced this argument in the litigation in Scotland.