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Benn Act avoidance thread: Cummings to @lewis_goodall said: "we will see what the law is on 19 October". Andrew Mitchell this morning on @mattfrei said PM should use any legislative or Parliamentary mechanism to get no deal through. But no one will say what they are planning. 1/8
Four mechanisms raised so far: 1. Major said PM might make an Order of Council to postpone the coming into force of the Benn Act so as to render it nugatory 2. Grieve suggested they may be whipping up unrest in order to declare state of emergency under Civil Contingencies Act 2/8
3. others have suggested two letters may be sent - one requesting an extension and another retracting the request. 4. Finally, a head of state (Orban/Salvini) may be persuaded to refuse an extension; unanimity being required for it to be granted. 3/8
There is a further possibility and that is section 23 of the Withdrawal Act 2018. This allows for secondary legislation to amend or repeal primary legislation. That provision is attached here. 4/8 
This is an extremely wide provision. When I asked the head of DexEU about it around 18 months ago, she was not able to say what it was for. But according to thhe notes it could be used to repeal an Act, including the Benn Act. The explanatory notes to it are here: 5/8
In my view an attempt to repeal or amend the Benn Act using section 23 would be unlawful and ineffective. The Benn Act is intended to stop the Withdrawal Act applying during any Article 50 extension. To deprive it of effect under s. 23 would therefore be extraordinary. 6/8
It would also require secondary legislation and it is difficult to see that Parliament would allow that legislation through; it would do something to stop it. Finally, it seems to me it would be contrary to section 10, attached, since it would result in a hard border.7/8
But we know that the reality of the legal and Parliamentary situation does not deter Mr. Cummings. I attach here, an excerpt from one of his blogs in March 2019. His views expressed there surely disqualify him from holding a public position; democracy is the rule of law. 8/8
