The Benn Bill requires UK prime minister Boris Johnson to request a Brexit extension that Johnsosn has vowed not to do. Yet, he insists he will not break the law.
For obvious reasons, Johnson has not explained how that is possible.
Coercion
Please consider 1969 Vienna Convention: Article 51 Coercion of a Representative of State
This article deals with one of the most ancient and firmly consolidated grounds of invalidity of treaties. A treaty concluded through the coercion exerted against State representative, be it a single human being or a group thereof, is without any legal effect. Moreover, the act of coercion itself can amount to an international wrongful act.
In the video above, Jeff Taylor says the EU is not a signatory of that convention.
However, The UK is, as are some EU member states.
Johnson can submit the letter, simultaneously declaring it null and void as it by demand, against his wishes and the wishes of the UK government.
This seems ironclad to me, but once again, no one really knows how a court would rule.
I suspect this is just part of the strategy.
Entire Strategy
- The Queen’s Speech debate starts Monday. The speech will lay out 22 new bills, proposed legislation. Debate on the Queen’s speech can last up to six days. That kills time. In this case I expect Johnson will attempt to kill the entire week.
- If Speaker John Bercow cuts debate short, I would not rule out Johnson proroguing Parliament until after Johnson comes back from Brexit negotiations on Oct 19.
- Article 51: Johnson may win in the courts.
- Article 51: Buys time even if it loses. But the clock does not start ticking until October 19. Brexit is on Oct 31.
- Once we get inside the 14-day window, Johnson could refuse to resign, disallowing a caretaker government to take over.
- If we get to October 31 with no agreement and no caretaker, No Deal happens by default.
Moot Point?
The entire point could be moot if the EU and UK manage top agree to a deal.
As noted on Friday, Secret Brexit Negotiations in the “Tunnel” to Begin.
If Johnson comes back with a deal, especially one in which the EU says no further extensions other than to ratify the deal or not, then the Benn Bill would be rendered ineffective without any legal dispute.
Mike “Mish” Shedlock
The coercion referred to in the Vienna convention is external. Hence it’s not applicable for bo.
Rather simpler, he sends the letter, requesting the extension, explaining that the May agreement has been rejected by Parliament three times and therefore is not on offer any more, and that the request for an extension is only to allow negotiation on a new basis: The UK will not pay any money, the UK will follow the Good Friday agreement and permit free travel and trade between the UK and Eire, Trucks traveling through the UK between Eire and the EU, will be subject to a large toll unless the EU permits them to enter without delay, and if the EU follows through with its claim that the UK is not a member of the WTO (some of us remember that one) then the EU agrees that the UK is no bound by other EU treaties, such as the CDO treaty.
I liked your comment, but learn to value the use of the paragraph. Huge blocks of unparagraphed material is difficult for most of us to read.
Ive always said boris either
a. doesnt sign the pre formatted letter
or
b. signs it and puts Vi Coactus (V.C.) is a Latin term meaning “having been forced” or “having been compelled”
no letter is valid if its signed under duress
and court will overturn that
and were still under EU law
EU law trumps UK law
were still in the EUSSR
I suggest you research the common law concept of `” best endeavours “. I’m writing this hiding from the EU Stasi who are searching the area for clandestine laptops… you are an idiot.
Good to hear you are ex-immigration officer, a toxic product as it were, it really explains everything about you and why you are a remainer to me. You obviously realise frontex and EU law signed by UK prohibits certain UK nationals returning to UK from EU and for no tangible reason , your comrade border stasi in EUSSR providing that service. In fact UK immigration does not even allow family to be imported as animals, would you believe. Keep trying though, you won’t figure out what I’m talking about.
Nobody knows what you are talking about, it may as well be a chimp typing.
A mere guess, I thought you were maybe more intelligent than that, but carry on as you are 98% of the way there.
you do understand that you are talking complete tosh don’t you?
I don’t know how many times I have to say this, there is no UK constitution. The constitution is what the majority in parliament says it is at any one time. Now as to coercion. It is impossible to describe forcing anyone to obey the law of the land as coercion. For example when I was an humble Immigration Officer I arrested people whom I had a reasonable suspicion of breaking the law. From that point on, using powers granted to me by an act of parliament, I was empowered to force a suspected immigration offender to obey me. This is not coercion, it is a reasonable use of force to make an offender obey the law. Now obviously the liar does not want to obey the law of the land but if he refuses to obey the law he becomes an outlaw. This government has given assurances to the court of Sessions in Scotland that were absolute in terms of obeying the law and to break these promises would be seen as contempt of court. A UK judge can incarcerate the offender sine die until the offender purges the contempt. The Scotts’ court has in any case stated that should the current Prime Minister refuse to obey the law then the court would issue a writ for the letter to be signed and delivered under its own powers. All this would concur with the law of the land. The ace in the hole is a damp squib.
“I don’t know how many times I have to say this, there is no UK constitution. The constitution is what the majority in parliament says it is at any one time.”
Poppycock.
Well well well another believer in unicorns. Pray tell where can one find this constitution? In what library is it housed? Who wrote it? Where is it in statute? All you have to know is that one parliament cannot bind another to know that nothing in the UK is fixed in immutable law and the law can be changed at any time by the majority in parliament. Live on in fantasy.
What you say about the constitution is correct as I understand it.
The problem though is that Parliament outsourced the decision on our membership of the EU to the people. That referendum should be a higher principle, and for the Parliament to take the decision back in house because they dont like the decision of the vote discredits the house and shows that it is corrupt. The vast majority of MPs in the house stood on a platform of seeing through Brexit, but it appears that a huge chunk of them never meant what they said when they stood for office.
Now they are exposing themselves as standing against the people, instead of offering to go back to the people and seeing what happens at a general election, they intend to squat where they are, having been elected on a false pretence and using their power to set what laws they like in order to subjugate the will of the people for as long as they can.
Does this not trouble you in any way? Are you quite happy for this coup against the British people to stand?
Coup? What coup? I see no tanks in the streets, we are not under martial law nor have there been mass arrests. Read Edmund Burke, you will then understand that parliament is a gathering of representatives not delegates. Hyperbole serves no one.
Article 51 is EU law which currently trumps British law.
BTW think you need to mind your manners avidremainer.
The next election will see many remainers ousted from their seats and rightly so.
Just over two weeks ’till we leave tee hee… 🙂
Keep going Boris!
Mind my manners, why should I? What has Article 51 got to do with anything?
Because you’re a whining twat? Just sayin’
Can’t please everybody.
Bercow being tasked as the parliamentary representative to take the extension letter to the EU, I can well believe. In fact, I’m surprised Johnson hasn’t pulled the trigger on that one yet.
But Bercow as interim PM supported by the EU? I can already hear the clatter of cart wheels bringing in the gunpowder to stuff under the House of Commons. Politics as we know it would disintegrate.
I love the idea of a coercion argument against the Benn bill but if Boris was going to use it, I wonder why the government was not more enthusiastic to agree with the latest Scottish Court action wanting to force him to to comply? i.e. the accusation of a “future crime”. It would have suited them to have lost the case, not won it.
.
I am hearing that Bercow has stepped down specifically to move into a position of interim PM, agreed recently with EU on his visit.
We heard last week that Labour, LibDem & SNP will support this so one question will be : will the Tory rebels back this? They might, as it kills Leave without guaranteeing a Labour govt.
Could the constitution accept a self selecting unelected Govt setting policy? Rather than acting solely in a caretaker capacity? Could the people?
It would be absurd wouldnt it?
A mix of politicians who hate each others politics, coming together to overturn the referendum result which all of them had promised to deliver.
We can be sure that a Bercow led government would have its mix of useful idiots, blackmailed and bribed individuals. Just how many of each group is difficult to say. The fact that someone is willing to go this far to overturn a democratic vote shows massive desperation. I wonder what it is they really fear?
If that happens, it will be tragic.
If true, very depressing, but it begs a question:
why is it that these obstructionists can keep going and going and coming up with endless ways to block forward momentum, and the ones trying to honour the referendum cannot match such tactics?
It’s the same dynamic in the US, seemingly as well.
Something is wrong with our political class these days.
As Trump would tweet: ‘Sad!’
Mish, I’ve always had a different take: that the fundamental basis of English Common Law is illustrated in the Coronation Oath and the Privy Council Oath and that the Benn Act can be nullified in the following way. There is no law specifyng there should be a monarchy – that is something “from time immemorial”, i.e. dating back centuries. There is no law specifying that there should be a Parliament – that is also from time immemorial (the 13th parliament building on the pre-Conquest Witan). The Monarchy and Parliament are given in the Common Law, which is our fundamental law. Statute law is just a subset of that (and not the other way round), as Crown in Parliament modify the Common Law to update for modern circumstances. The Queen is bound by her oath to govern us “according to our laws and customs” – not laws handed down by a foreign bureaucracy. The Prime Minister may not lawfully advise the Queen to violate her oath (although Edward Heath did). The Prime Minister is bound by his Privy Council oath, which may be read on Wikipedia, making it illegal for him to seek to hand over the Queen’s authorities, pre-eminences or jurisdictions to a foreign potentate (i.e. handing over legislative authority to the EU was always illegal). In this context, the Benn Act has failed to a) abolish the monarchy; b) abolish the need for the PM to adhere to the Privy Council Oath; c) abolish the prohibition against the PM advising the Queen to violate the Coronation Oath; or d) abolish the requirement for the Queen to adhere to her oath, or give her life trying to do so (as Charles I did). The 1985 Weights and Measures Act was ruled of nil effect by the courts in the Metric Martyrs case because it stepped on the 1972 European Communities Act – and although later laws are meant to repeal earlier ones, Mr Justice Lawes ruled that constitutional laws can only be repealed by express language. There are numerous old constitutional statutes relating to the Coronation Oath as well as the Treason Act that are contradicted by, but not repealed by, the Benn Act. I would urge Johnson to argue he is bound by his Privy Council Oath and that is not removed by the Benn Act. He could also advise the Queen to sack the 11 justices of the Supreme Court and replace them – an Order in Council appointing the Master of the Rolls to examine the legality of the Supreme Court verdict on prorogation could be wrapped up in a number of days and show the political bias of the court, leading to the removal of the errant judges. The Queen would have to play along – but Johnson could point out his other option would be to campaign on a manifesto commitment of an abdication otherwise, as the Queen vowed to govern us according to our laws, and cannot be allowed to back out of that. Queen Elizabeth, play along – or pack your bags!
Very interesting. Not well versed in law, but have instinctively assumed that many fundamental conventions are violated by the Surrender Act. As you wrote: “There are numerous old constitutional statutes relating to the Coronation Oath as well as the Treason Act that are contradicted by, but not repealed by, the Benn Act.”
In Courts as in business, and especially dealing with thorny, multi-faceted issues, it’s often best to choose one or two clear, precisely defined points and hammer them home, rather than a shotgun blast covering a wide area but with insufficient impact to penetrate into the heart of the matter.
You suggest: “I would urge Johnson to argue he is bound by his Privy Council Oath and that is not removed by the Benn Act.”
Whether or not that is a valid approach, or the one they choose, it’s the sort of nugget that the SC would have to chew on and digest with some degree of specificity – which was outrageously lacking in their kangaroo court judgment last month which relied on a premise for which there was no precedent at all (namely that the Govt didn’t provide a reason for prorogation, let alone a ‘good reason,’ whereas in fact the reason they gave, legally speaking, was that it wasn’t a justiciable issue so no reason should or would be proffered.)
I love your ending solutions about Queen and the SC – no doubt tongue in cheek – but deplore the underlying deficit in the current constitutional dynamic, namely an overly weak Monarchy, either for valid constitutional reasons, or because of the personal consitution of the particular individual now fulfilling that Oath. Although not a great fan of the Windsors, my hope is that Queen Elizabeth’s long reign, which has generally been peaceful and prosperous, can go out with a little glory, and a good Brexit with a good follow-through could provide that – a real sense of lift and optimism for the first time in many long decades….
What did you make of the Queen’s frowning performance during the Queen’s Speech yesterday? Was she sending a signal she is anti-Johnson? Or is she just 93 and tired and not much can be expected of her now?
Well, she was frowning slightly when she met me (when I was a schoolboy oh-so-many-moons ago) and I learned then and there not to read too much into it!
But if I had to guess: she didn’t like being shunted into a ceremonial performance which didn’t really make sense because there really should have been an election first and then the speech. And – since she is still a human being and a very disciplined, loyal one at that – she probably didn’t like that ghastly Bercow character preening in front of her. Horrible little man!
“If the Remainers are serious about stopping Brexit, there is really only one way- get rid of Johnson and replace him with a Remainer.”
That is extremely unlikely.
There is no majority for remain nor a majority for Corbyn nor a majority (right now) for a temp govt of any kind.
Even if there was a majority for a temp, they still have to win an election.
Johnson, if nothing else, has done a better time management job than Theresa May.
I will breathe a lot easier inside 14 days and will declare victory inside 3 days.
There is a majority in Parliament for extension if no deal is passed. The only question is the person of the interim PM. This question is practically left for the day when the answer is needed.
If Johnson finds a deal with EU and gets it through the Commons, then the question will never be asked. The problem is that the acceptance of the EU and the British hard right (DUP/ERG) are mutually exclusive, therefore this deal scenario is impossible in the real world.
I have written it several times now- if the Remainers are serious about stopping Brexit, there is really only one way- get rid of Johnson and replace him with a Remainer.
We do know how the UK courts will rule- let’s not pretend to be stupid- they have made it clear that they will rule however they have to to prevent Brexit.
Where this argument might arise, though, is in vetoes of the extension in the EU parliament. Johnson may well already have a country in the EU willing to issue such a veto using the Treaty on Treaties as the basis for doing so.
Think you are wrong on both. If I was Johnson, I would not trust an EU state blocking this, and I doubt he does either. That does not mean it’s impossible, rather it’s a subject he cannot bring up for fear of leaks.
The courts made a plausible ruling. That does not mean we have to agree with it, just understand it.
Brexit is a treaty change. We do not know how they would rule.
Then again, the whole point of such an exercise might be to by time. Such a tactic would indeed buy three days minimum.
I essentially agree with Quatloo’s position. But if this is the tactic, it is a reasonable one.
And it buys times. Johnson needs to get inside the 14 day window in which he has other options.
I suspect Eurointelligence will comment on this. Anyway, my base assumption has changed in favor of a deal, so this may all be moot.
The withholding of Assent was the best chance. The SCUK would blow this argument out of the water in a matter of minutes by citing the Benn Act, as an Act of Parliament, as superceding even the Vienna Treaty as it is “last in time” (which in jurisprudential terms means that because it was passed after the Convention, it must necessarily supercede the Convention unless Parliament expressly subordinated it to the Convention… since BoJo did not stop Assent, it cannot be said that he was coerced to accept the Benn Act).
I totally agree that Assent should have been withheld from the Benn Bill simply because it was unconstitutional. However, we are where we are. If the Benn Act, as the Speaker ruled (see Hansard) did not require a Money Resolution (it did) and did not require Queen’s Consent because it did not impinge the Prerogative, then it must follow that the Royal Prerogative in regard to Treaties and Foreign Relations is unaffected. That being the case there is nothing to stop Boris from abrogating all EU Treaties and this is what he should do.
My impression from what you describe is that this legal matter would revolve around: (1) whether an extension of Article 50 is a treaty; and (2) whether requiring the PM to request the extension is “coercion…through acts or threats directed against him”.
On the first issue, the argument of the Remainers would be that this is some sort of membership agreement rather than a treaty, and the extension is even more different from a treaty. Leavers would argue that this is an international agreement on conduct, which is a treaty even if it is not called one.
On the second, Remainers would argue that no threats are involved, and that the acts of drafting the letter and requiring him to send it are not directed “against” the Prime Minister; rather they are simply an expression of the will of parliament embodied in a lawful instruction. The Brexiteer argument is that in reality Johnson is being coerced to do something he does not agree with.
Finally, I’m not sure but I assume jurisdiction of the issue of validity of an extension requested by the UK and accepted by the EU would lie with the EU courts, as the UK probably agreed when joining the EU to leave jurisdiction of such issues to the EU courts. The PM would argue that the extension request was not validly made under UK law because of the Vienna Convention, and therefore it is not capable of being accepted.
While I agree this is helpful to the PM, I don’t agree it is ironclad. I hope he has more arrows in his quiver.
Quatloo,
I think that the argument saying that there is no coercion is wrong. Remainers are taking Boris to court in Scotland, what is the point of that if there is no sanction for him not complying with the Benn act?
Indeed, if there is no sanction, then Boris can simply not comply with the act and we leave the EU. It is probably better for him politically if he complies with the law and delivers the letter but makes it clear that he is doing so against his wishes, as that according to the letter of the law delivers Brexit and he doesnt break the law.
As for the first point, arguing that this is some sort of ‘membership agreement’ hardly holds water. Google tells me that a treaty is – a formally concluded and ratified agreement between states. The words or the spirit of the Vienna convention apply to exactly this situation.
The only way out of this I can see is a corrupt court or a corrupt Parliament taking over from Boris and forcing an extension or even cancelling Brexit entirely.