He called it the “surrender bill” – but it’s Boris Johnson who may have to submit to it.
The new law, designed to stop the UK leaving the EU without a deal, means he can no longer promise to leave the EU at the end of October, “come what may”.
The MPs’ legislation even includes the letter the prime minster must write asking for an extension if he fails to get an agreement.
It is quite a novel idea to put the actual text of the letter into law – but that is what MPs have done.
Philippe Sands QC was asked by opposition MPs for an assessment on whether anything in the legal text can be swerved.
Professor Sands has previously offered legal advice to politicians in both the Remain and Brexit camps so I went to meet him in his office in North London to independently stress-test the legislation.
He told me: “I’ve asked myself the question where’s the wiggle room? Where’s the way out? It’s been very carefully drafted, plainly, by people with a lot of legal experience.
“It essentially creates a regime which says: ‘If the prime minister is unable to obtain support from parliament for either no-deal Brexit or for a new agreement, then on, or before, 19 October he must write a letter to the European Council asking for an extension to the departure date of the United Kingdom from the European Union’.
“There doesn’t seem to be any wiggle room in that text.”
It was reported in the Telegraph the prime minster was considering ways to somehow send the letter to the EU, as the law requires, but then do something to sabotage it such as send a second letter which effectively says “PS ignore the previous letter”.
Every legal opinion I spoke to in the last 24 hours have trashed this idea.
Legal and constitutional experts, including a former supreme court judge have all told me that it would disrespect the intention of the legislation.
Professor Sands agrees. He adds: “The letter itself is extremely carefully drafted and the principles that are to be applied in determining whether and when it must be sent have been equally carefully drafted.
“So, I think the prime minister is well and truly boxed in and I think he’s been told he’s boxed in by the attorney general and by the solicitor general.
“We’ve noticed a change of tone by the prime minister. There is no more talk of ‘I’m not going to comply with this act of parliament’ or ‘I might not comply with the act parliament’. I think the reason that has happened is he’s been read the riot act by his law officers.”
But what if the prime minister decided to go down that road anyway.
He could just say: “I’m not going to comply with this.
“I’m the prime minister and it’s up to me to send that letter I’m just not going to send it.”
What happens then?
Professor Sands believes he would immediately lose his government legal advisers.
He said: “His attorney general the solicitor general, Geoffrey Cox and Robert Buckland, would resign immediately.
“They would have to resign because you can’t as a decent self-respecting member of the bar give your name to such a course of action.
“The House of Lords has ruled very clearly the prime minister is not above the law.”
If, despite resignations the prime minister refused to meet all the requirements of the act, the next step would be legal proceedings.
But there’s another scenario.
What if Brussels was being demanding and Mr Johnson was able to imply that the extension came at a greater cost than parliament envisaged?
Let’s imagine a hypothetical.
He comes back to London on 17 October and says the European Union is demanding that the price of an extension is a billion pounds a day.
He might say that parliament hadn’t intended such a circumstance.
He may choose himself to go to the courts and ask the question – did parliament intend to impose upon the United Kingdom that obligation?
Professor Sands said: “That question would then go to court and be dealt with very expeditiously.”
He continued: “Exactly the same answer would come as I gave earlier. The function of parliament is to read the act and according to what it says in its plain terms it doesn’t submit of any exceptions.
“He would buy a few days whilst these matters went through court. But well before 31 October he would be on the receiving end potentially of a contempt order and that would I think concentrate his mind.”
A spokesperson for Downing Street repeated on Monday that the government will obey the law, but that the prime minister will not be asking for an extension.
It sounds like they still see a loophole, but I’ve not been able to find it.
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