A thread on Johnson's request for an extension under the Benn Act

Number 10 had a problem when the Letwin Amendment passed

Under the Benn Act there was an inescapable duty for an extension request to be sent

No way round it

Had the request not been sent, the Benn Act would have been breached

The averments (ie, promises) to the Scottish court would have been breached

The Lord Chancellor, Scottish Advocate General, Attorney General all would (or should) resign

A government breaching the law - or even just breaching the averments - would also be creating an immense moral hazard in all other legal cases

No court would ever give the government the benefit of the doubt when considering potential court orders again

Huge problem

So a letter would have been sent

The advice from government lawyers would have been unequivocal

The question then came how to dress it up

Send a side letter?

But the problem here was our old friend Padfield

What could the government do about Padfield?

Padfield is the constitutional principle that a government minister cannot do a thing (or not do a thing) that would frustrate a statute - in this case the Benn Act

The principle based on a leading 1968 case

Constitutional law 101

So any side letter had to avoid frustrating the purpose of the Benn Act letter

The Benn Act letter had to be a valid extension request

A side letter could not say :the other letter is not a Benn Act request", disregard the Benn Act letter or similar

And so the side letter would have been lawyered to the hilt

And it must have been personally signed off by the Attorney General and the Advocate General - because of the averments to the Scottish Court, they both had a professional obligation to ensure no breach of averments

And the side letter is (in my view) Padfield-compliant

The Benn Act letter retains its full legal force, and is a valid request for an extension, and there is nothing in the side letter which frustrates this

Side letter just legally inconsequential waffle

And the proof of Padfield-compliance is in the pudding

Tusk and the EU27 immediately accepted the Benn Act letter as valid

The other letter disregarded like Xmas wrapping paper

Statutory purpose of the Benn Act letter fulfilled

Had Tusk/EU27 came back and said "legal position unclear, please clarify" or "one letter contradicts the other" then there would have ben a Padfield problem

But they didn't

No hesitation for a moment

And the Number 10 had a further clever wheeze to distract the easily distracted

Let's say the Benn Letter was unsigned!

Utter red herring

No requirement whatsoever that it be signed

Letter was sent as set out in schedule to Benn Act

Full compliance with the Act

The "Number 10 source" then briefed that the government would see opponents in court, seeking court drama

Perhaps the Scottish Court on Monday will take matter further - I don't know

But it shouldn't, IMO

The Benn Act request has been sent and is accepted as valid

There is no need for court drama, still less this being "played out in the Supreme Court"

The government lawyers made sure that the side letter would not have, and did not have, any frustrating effect tot he Benn Act letter, and so it did not

I may be wrong - it may be that the Scottish courts, and Supreme Court - do wade in, and make a point of condemning side letter

I will eat my tweets in a brown bread sandwich

But - if the side letter was to get EU to reject the Benn Act letter as a valid request, it failed

If you remember the Article 50 notification, there were paragraphs of policy waffle - but it was the two or three operative sentences that mattered

The waffle was disregarded

Same again here

The brute legal fact is that there is a valid extension request in place

One which the government said it would not send

Once capable at law of leading to an extension

And after all "Number Ten Source" briefings and bluster, and clever-seeming amateur hour wheezes to evade Benn Act breathlessly repeated by uncritical media

After all that noise

All they had in the end was: "let's not sign the letter!"

Pathetic, really

Classic Dom

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