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The Telegraph reports Boris Johnson to Seek Supreme Court Ruling On No-Deal Brexit.

Several Government sources have told The Daily Telegraph that the Prime Minister is willing to go to the Supreme Court in an effort to avoid having to write a letter asking for a delay to Brexit, as set out in the Benn Act. The source said No 10 needed to find a legal mechanism to allow the Prime Minister to “at least say five days before [Oct 31] ‘I am literally not going to write that letter’.

“The real drama would be if Boris were in court calling it ‘the Surrender Act’. He would almost be happy if the judge said ‘you can’t call it that’.”

The Benn Act – officially the EU Withdrawal (No 2) Act but named after its architect, Hilary Benn, the Labour MP – requires Mr Johnson to ask the EU to delay Brexit if the UK cannot leave with a deal at the end of October.

Apparent Contradiction

Boris Johnson has stated many times he will abide by the law, yet not seek an extension.

Perhaps Johnson believes this is a legal battle he can win.

If so why did he not fight it earlier?

Killing Time?

Perhaps the delayed fight was on purpose, to kill time.

The key question here is whether a fight after something becomes law is as effective as blocking it upfront.

I believe, although no one really knows how courts will rule, is the Benn Bill was unlawful. It removed an explicit right of the prime minister to act on matters of trade as representative of the Queen.

Queen's Consent vs Royal Assent

Let's investigate a Legal Opinion on Queen's Consent and how it pertains to the Benn Bill.

Emphasis is original, not mine.

Queen’s Consent is a procedural requirement for any Bill passing through the Commons and Lords where the terms of the Bill would ‘affect’ the exercise of any royal prerogative if it was passed. The effect on the prerogative must be more than de minimis.

Queen’s Consent is normally a formality, because the government usually proposes (or more accurately for Private Members Bills, acquiesces to) all Bills that are successfully voted through both Houses. The current scenario could see a situation where a Bill passes in the teeth of trenchant opposition from the government.

Prerogative powers are legacy powers of the Crown that are now mainly exercised by the government. Conducting foreign affairs, and in particular the power to agree treaties and operate treaty powers, is an important part of the prerogative and is the relevant power for this post. Under that power, the UK government has agreed new treaties, and particular laws, at EU level over the last 46 years (and indeed continues to do so).

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The story behind the passage of Cooper-Letwin is more complex than many realise. The drafting of the original version was masterly. Cooper-Letwin mandated the then Prime Minister (PM) to seek an extension to the Article 50 process. The word ‘seek’ is crucial. The reason it is so crucial is that it allowed the argument to be made that Queen’s Consent was not necessary for the Bill. This was because to ‘seek’ an extension does not actually have any effect in terms of changing the date of exit at EU level. Seeking an extension arguably does not ‘affect’ prerogative exercise as a matter of law.

The sheer cleverness of the drafting of Cooper-Letwin rests on the fact that it left entirely open what would happen after the extension was ‘sought’. The negotiations and agreement of a new exit date were without doubt exercises of prerogative power and any Bill that sought to regulate or supplant those aspects of securing an extension would certainly have required Queen’s Consent during the passage of the Bill.

The issue of Queen’s Consent was taken very seriously during the passage of the Cooper-Letwin Bill and was so controversial it resulted in a Formal Ruling by the Speaker. That ruling made clear that the original draft of the Bill did not require Queen’s Consent.

The Benn-Burt bill
If Benn-Burt had precisely followed the format of Cooper-Letwin and only mandated that the government seek an extension, then it would have placed no obligation on the PM to agree or accept any extension. That would remain part of the prerogative power to be exercised as the PM sees fit in his negotiations with the EU27.

However, Benn-Burt goes much further than Cooper-Letwin. It mandates that the PM must not only seek but also agree to an extension, either 31 January 2020 or another date if the Commons approves a date suggested by the EU27. Mandating that the PM agrees to an extension manifestly affects the prerogative. It is difficult to see how requesting Queen’s Consent can be avoided for this Bill. If so, it follows that the government must agree to the Bill being passed during Third Reading.

Did Johnson Voluntarily Give Up Rights?

Johnson elected to challenge the legislation now instead of denying Royal Assent and Queen's Consent upfront.

I believe Johnson had a rock solid case then.

But now?

By accepting the Benn Bill without legal challenge, did Johnson give up right of Queen's Consent related to trade matters?

That's the key question.

I don't know, but we are about to find out.

Smokescreen Alternative

Is this Johnson's primary strategy of avoiding Benn?

That's the second key question.

Alternatively, this could be some sort of smokescreen to convince Remainers this is his primary means of avoiding Benn.

I suspect a smokescreen.

There is always another amusing Brexit twist.

Mike "Mish" Shedlock