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I'm still worried about why the government hasn't introduced legislation clearly empowering the PM to agree an a50 extension. I think it's needed to ensure there simply can't be a legal challenge to the extension.
I'm not saying a challenge would succeed. HMG has decent arguments that might well win the day. But the challengers would also have decent arguments and (a) might even win; (b) could destabilise policy just by challenging. HMG should exclude the risk.
The arguments would mirror Gina Miller's. They'd say prerogative extension would frustrate the EU (Withdrawal) Act 2018 and would change the constitution temporarily, so going beyond the scope of prerogative. They'd say no clear words in the 2018 Act preserved this prerogative.
The risk of these arguments succeeding and "invalidating" the extension may not be big, but the consequences would be huge. There is *some* level of risk that the courts could rule that (and/or have refer to the ECJ the question whether) the UK had already crashed out.
This risk can be eliminated by a short Act giving clear statutory power to the PM to agree an extension. So why aren't they doing it?
Well, government lawyers might disagree with me, and think there's nothing to see here. "This is fine". But I doubt it. I was a government lawyer and think like one. I'd be willing to bet government lawyers have advised introducing a bill to avoid the risk.
Especially given what happened in the Gina Miller case. Defending prerogative in the Supreme Court once against creative legal arguments by campaigners may be regarded as a misfortune. But what would Lady Bracknell think if government lawyers weren't warning of a sequel?
I wonder whether the Law Officers have been asked to advise on the question. Traditionally ministers regard themselves as bound to act in accordance with such advice. So if no Bill is tabled, then either Cox hasn't been asked, or else he's advised the risk is acceptable.
One reason you might decide not to ask for Law Officers' advice is if you fear their answer. I suppose it's possible that some perceived political downside might mean ministers prefer to live with the risk rather than legislate, and so don't want to be bound by Cox's view.
They might also simply think by this point "Enough Geoffrey Cox already".
A further possibility is that government is in such crisis, with ministers and civil servants under such pressure of events, that this point has simply been lost sight of. There may be a government legal Cassandra who occasionally reminds everyone of this point but is ignored.
I'd better say for the avoidance of doubt that any resemblance to actual government lawyers named Cassandra is purely coincidental.
Let's see what happens. Maybe a bill will be introduced on Monday, followed by a formal exchange of letters between Tusk and May. I'd then breathe easy. If not, and if there is a legal challenge, I will say I told you so.
A final thought occurs to me on the staircase down from that thread. Might ministers plan to introduce a bill, but only once we know what happens about the third "meaningful vote"? And might the precise drafting of that bill depend on what does happen? That could be interesting.
