monday, 9 september of 2019


Boris Johnson ´sabotage´ letter to EU ´would break law´: UK

Senior judges and lawyers have warned that Boris Johnson would be in contempt of court if he applied for an article 50 extension while simultaneously trying to get the EU to reject it.

Reports in the Daily Telegraph suggested the prime minister had drawn up plans to "sabotage" parliament’s efforts to force through a Brexit extension to prevent the UK leaving the bloc without a deal.

He was said to be considering sending an accompanying letter to the EU alongside the request to extend article 50, which would say the government did not want any delay to Brexit.

Ken Macdonald, the former director of public prosecutions, warned that such a plan would be breaking the law. He said: "The act is quite clear in what it requires the prime minister to do. If he sends a side letter to the EU that deliberately conflicts with that requirement, he is deliberately in breach of the law."

Lord Macdonald added: "This is the sort of disreputable wheeze that might appeal to an adviser in Downing Street, but it is unlikely to appeal to a court. The predictable result would be an injunction requiring the prime minister to do what should be first nature to him: obey the law."

The Criminal Bar Association (CBA) condemned suggestions that the prime minister was planning to ignore legislation designed to stop a no-deal Brexit. The group’s chair, Caroline Goodwin, said: "We cannot expect people not to rob, rape and murder when a government declares it may break the law. We cannot lay rape to the rule of law."

Goodwin added: "As the CBA our role is not to say ‘remain’ or ‘leave’ but part of our role is to explain the law – criminal law – and play our part in upholding the rule of law."

Jonathan Cooper, a barrister at Doughty Street Chambers, said unless Brexiters could find a way to challenge the act preventing no deal, the government had to comply.

"There is only one building block to the UK system of government and that’s the sovereignty of parliament. That means parliament trumps the prime minister. The EU is required to take account of the UK’s constitutional framework. In deciding whether to give an extension, the EU will be guided by an act of parliament and not the prime minister. If the prime minister chooses to undermine parliament, the courts will step in and if need be hold the prime minister in contempt."

Susan D Shaw, managing partner at Living Law, based in Scotland, said recent events should be “ringing the alarm bells across the country for every citizen”, regardless of their views on Brexit. "The rule of law is being seriously eroded with each and every day that now passes and with it all of our hard-won rights as citizens. History shows us where this dangerous path leads."

She added that Johnson’s actions had "tainted the history and stature of our world-leading institutions and are diminishing our standing in the global order. On any rational view he is simply unfit to hold high office."

Earlier on Monday, Jonathan Sumption, a former supreme court justice, said it would not be legal for the prime minister to ask for an extension while rubbishing the request at the same time.

Lord Sumption told BBC Radio 4’s Today programme: "The bill, or the act as it is about to become, says that he’s got to apply for an extension. Not only has he got to send the letter, he’s got to apply for an extension. And to send the letter and then try and neutralise it seems to me to be plainly a breach of the act."

Sumption said he had read the bill and there was not "the slightest obscurity" about what the government was obliged to do. He said: "You have got to realise that the courts are not very fond of loopholes. They are going to interpret this act in a way that gives effect to its obvious purpose unless there’s something in the act that makes it completely impossible to do so and there isn’t."

Sumption said Johnson would not only be in contempt of court if he failed to do what the bill stated, but would risk the resignation of the justice secretary, the attorney general, and other members of his cabinet.

He added there were "plenty of ways" in which this kind of obligation could be enforced. "An application will have to be made to the court for an injunction. The simplest way of enforcing the injunction would be for the court simply to direct an official to sign the letter on behalf of the PM and to declare that his signature was to be treated in every legal respect as equivalent to the prime minister’s," he explained.

Parliament passes legislation

The UK’s House of Lords voted on Friday for legislation that blocks a no-deal Brexit, stymying efforts by Prime Minister Boris Johnson to strongarm the UK into leaving the EU without an exit plan.

The legislation counters explicit efforts by Johnson to impede Parliament’s ability to take action ahead of the current October 31 Brexit deadline. Johnson recently moved to suspend Parliament for five weeks to limit available working time leading up to the deadline.

This bill was sent to the upper chamber following a vote by the House of Commons earlier this week, where opposition MPs managed to convince 21 members of Johnson’s Conservative Party to leave his fold. Johnson lost his majority hold on Parliament, enabling the MPs to determine the agenda.

Once signed into law through royal assent, the legislation will force Johnson to seek another Brexit extension. The new proposed deadline is set at the end of January 2020, unless a Brexit deal is passed in Parliament or Parliament explicitly votes for a n0-deal Brexit before that time.

Despite these deliberations in the UK, it remains unknown whether the EU will allow another extension of the Brexit deadline past October 31.

Group Liberty Rights

The civil rights group Liberty has launched a judicial review case seeking to compel Boris Johnson to comply with a bill passed by rebel MPs obliging him to request a Brexit delay.

In a letter to the prime minister, Liberty said any attempt to evade legal obligations would have a "profoundly detrimental impact on the whole fabric of our legal system and constitutional order".

The organisation said it would withdraw its application for a judicial review if Johnson made a public statement in the next two days agreeing to comply with the provisions of the bill, which is expected to be given royal assent on Monday.

The prime minister has repeatedly insisted he will not ask the EU for an extension to Brexit, while saying he would comply more generally with the law. Downing Street has refused to explain how the contradiction might be squared.

The bill, which passed through parliament last week after MPs seized control of the Commons timetable, obliges the government to seek a Brexit extension to the end of January if by 19 October it has not passed either a departure deal or gained MPs’ consent to crash out of the EU.

In a statement explaining the judicial review bid, Liberty stressed it was not affiliated to any party and was neutral on Brexit. However, the group said it was vital to guarantee the principle of the rule of law.

“It is our fierce independence which makes this a case that Liberty must lead,” said Martha Spurrier, Liberty’s director. "At a time when public faith in parliamentary process is so low, it is essential that party politics are removed from this matter.

"People must know that this case is not fought on party lines or that it is anything to do with Brexit. This case is about ensuring that the government – whoever it is, or whatever its intention – acts within the law."

The letter said any decision to evade legislative obligations "would be a grave affront to the rule of law and the UK’s constitutional settlement and would have a profoundly detrimental impact on the whole fabric of our legal system and constitutional order".

Johnson will make another attempt on Monday to evade having to seek an extension by forcing a general election for 15 October. The Fixed-term Parliaments Act requires a two-thirds majority of MPs to vote for an early election, and with opposition parties opposed the motion seems set to fail.

Parliament will be suspended from Monday night until mid-October, No 10 has confirmed.

(Published by The Guardian, September 9 2019)

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