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As far as I can make out, we have now heard of 5 suggested routes around the Benn Act, the legislation which would compel the PM to seek a delay of Brexit until next year if Parliament had not approved a deal or no deal by 19 October. All, I think, are dead ends.
Route 1 (ht @owenjbennett): send letter requesting extension as required, but also an "explainer" which says that he doesn't really want one. Dead end because unlawful: the Act says he must "seek to obtain" an extension, and he wouldn't be doing so.

telegraph.co.uk/politics/2019/…
Route 2 (ht @JolyonMaugham): Get MPs to vote for a deal - so the duty to seek an extension falls away - but don't get them to vote for legislation to implement the deal. Under the EU (Withdrawal) Act 2018, that means HMG can't ratify. Hence no deal.

waitingfortax.com/2019/09/15/the…
Dead end, I think, because (a) there isn't a majority for a deal in the first place, and (b) would require the PM to whip MPs into an extraordinary double-think, saying "vote for the deal to get no deal", and (c) Parliament, now it's sitting, could legislate again to prevent this
Route 3 (ht John Major): simply try to use an "Order of Council" (or possibly Order in Council), a type of secondary legislation not requiring parliamentary approval, to suspend the Benn Act. A dead end because patently unlawful. See the Bill of Rights:
Route 4 (ht @JolyonMaugham): use an Order in Council, but under Part 2 of the Civil Contingencies Act, which allows the Government to suspend Acts of Parliament to deal with an emergency. Unlawful, because this isn't an emergency. See @ProfMarkElliott:
Route 5 (ht @JudgeJohnHack): argue that the Benn Act is itself unlawful under the EU Charter of Fundamental Rights. (While we are still in the EU, EU law prevails over UK law.)
thetimes.co.uk/article/eu-hum…
Dead end, I think, because it's hard to find EU lawyers who think there's a shred of sense in this argument.
So I don't think the PM can get round the Benn Act intentionally. But no deal could still happen by accident, by a variation of Route 3: MPs vote for a deal, but run out of time to pass the necessary legislation. See @ThimontJack here: instituteforgovernment.org.uk/blog/commons-m…
All in all, increasingly worried that Boris Johnson is picking a fight with the courts on purpose in order to burnish his Brexit credentials. This threatens the rule of law, as I explained here.
/ends
instituteforgovernment.org.uk/blog/boris-joh…
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More from @Raphael_Hogarth see all

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Raphael Hogarth
@Raphael_Hogarth
The @instituteforgov explainer on the Withdrawal Agreement Bill is now up. Here is what's in the bill.

instituteforgovernment.org.uk/explainers/wit…
@instituteforgov TRANSITION

instituteforgovernment.org.uk/explainers/wit…
NEGOTIATIONS ON THE FUTURE RELATIONSHIP

instituteforgovernment.org.uk/explainers/wit…
Read 10 tweets
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Raphael Hogarth
@Raphael_Hogarth
My instinct is this is legally fine. He's at pains to make clear that the request for an extension stands, is not being countermanded, and it's open to the EU to accede to it. This is just fluff - the EU will ignore it and to be honest I hope the rest of us can too.
I wish it wouldn't get written up this way though. "Ignore parliament - I'm not asking for a delay, says PM". He doesn't say that and, if he did, that would be unlawful. That's why he's not saying it.
My view on the legality of the "three letters" trick is set out more fully here, for anyone interested.

prospectmagazine.co.uk/politics/artic…
Read 3 tweets
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Raphael Hogarth
@Raphael_Hogarth
The passage of the Letwin amendment means that the Government will introduce the EU (Withdrawal Agreement) Bill. This bill will authorise the Gvt to ratify the Brexit deal, and give effect to the deal in UK law. Some crucial points about the bill, and potential flashpoints:
1/
The EU(WA)B is needed for 2 reasons. First, treaties don't become part of UK law, and enforceable before UK courts, until Parliament gives them effect in UK law. This bill will do for the withdrawal agreement what the European Communities Act 1972 did for the EU Treaties.
2/
Second, s13 of the EU (Withdrawal) Act 2018 says that the Government cannot ratify the deal *in the first place* unless Parliament has passed an implementing statute.

So the bill isn't only required to make the treaty *work*. It's also required to *make the treaty*.
3/
Read 14 tweets

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BBC News (UK)
@BBCNews
A #BrexitDeal has been agreed by the UK and EU, but what does it all mean?

We answer some of the questions we have received from readers THREAD ⬇️
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Under law, yes he does

The Benn Act says that Boris Johnson would be required to request a three-month #Brexit delay - unless he can pass a deal, or get MPs to approve a no-deal exit by 19 October

More on this: bbc.in/31mERDX
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Jon Worth
@jonworth
There are 3 important #Brexit developments possible in next 48h

1️⃣Outer House of Court of Session decision on @JolyonMaugham nobile officium case

While this is not likely to be final (will go to Supreme Court), it's important to see if Johnson can find a way around the Benn Act
2️⃣Prorogation order should be published

That this hasn't yet been published is odd - as the Prorogation is due to start end of Commons business tomorrow. Is there some trick they're going to pull? Or delay it?
3️⃣Order paper for post-Queen's Speech should be out, will give date of vote on Queen's Speech

Timetable post-Queen's Speech overlaps with the European Council - and if Johnson were to lose vote that's normally a resigning matter. Vote 18 or 21 October?
Read 5 tweets
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Peter Foster
@pmdfoster
So Q I hear being posed in Brussels and Whitehall: as @BorisJohnson enters the Westminster firestorm, does he still have credibility to do a #Brexit deal ahead of Oct 31?

In short, it looks very hard, as I argue here after asking around.

1/thread

telegraph.co.uk/politics/2019/…
@BorisJohnson "Technical talks" continue in Brussels today, but not even, we are told, at the level of David Frost, the PM's sherpa.

Throughout #Brexit technical talks have always been a byword for marking time in the hope that something better shows up. See negotiations passim. /2
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In a sentence, the UK wants a trade border in Ireland to resolve the #Brexit trilemma. The Irish do not. /3
Read 17 tweets
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Mark Scott
@markscott82
Now that a ‘No Deal’ #Brexit is looking like the most likely outcome, I would (again) bang the drum for how this is really bad news for anyone who moves data btwn the UK & EU, and vice versa.

Here’s why:
Right now, as an EU country, the UK is part of the region’s privacy regime, meaning that anyone (tech company, bank, retailer) can move data freely across the EU-28. It’s the lifeblood of the economy, particularly for professional services — something that the UK does really well
But in a no-deal scenario, that ready access is turned off overnight. No ifs, ands or buts. The UK says it’ll keep data moving from its side to the EU (yay!). But the EU says you won’t be able to move data from EU-27 to UK, unless you have special mechanisms in place
Read 22 tweets
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tony nog #FBPE
@tony_nog
1) So what is the Labour #Brexit GE platform?

As far as we can make out we'd be voting for more negotiations (which the EU will not agree to) to get a better deal (which likely doesn't exist)

The entire Labour platform is based on promising a Brexit they cannot deliver
2) "Vote Labour even though our #Brexit platform depends on 27 other governments all doing what they've all said they absolutely won't do"

That's not a manifesto, it's just wishful thinking
3) but even if Labour's GE promises on Brexit were real, why should any Remainer support a GE?

The Tories have led Brexit but at least they are starting to say it may not happen. Corbyn's leadership team won't even consider the idea that Brexit could be stopped
Read 8 tweets
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katya adler
@BBCkatyaadler
EU diplomats shrug at what they view as U.K. hysteria over Canada+ or Chequers #Brexit debate. The EU says the choice was never the UK’s alone 1
EU viewsChequers as a U.K. government position. Not an end in itself. Brussels aim: to navigate between Chequers and EU red lines.. 2
Accusation I often hear in Brussels is that U.K. Brexit negotiators are fine wordsmiths but that there’s often little meaning behind the words 3
Read 19 tweets

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