05:54, September 27 289 0 theguardian.com

2019-09-27 05:54:03
'Benn Act is watertight': Gauke deems Major's Brexit fears misplaced

The former justice secretary David Gauke has said ministers cannot bypass a new law to force Boris Johnson to seek a Brexit extension despite fears the government has found a loophole to ignore it.

Gauke, one of 21 Tory rebels who had the party whip removed for voting for the Benn Act, warned Boris Johnson he would face instant legal challenge if he tried to avoid it. The act forces the prime minister to seek three-month Brexit extension if he is unable to get a withdrawal bill by 19 October.


Boris Johnson's parliamentary defeats

In the first vote Johnson faces as prime minister, 21 rebel Tory MPs vote with the opposition to seize control of the order paper to allow a debate on a bill that would block a no-deal Brexit. 

Against Johnson's wishes, the Commons passes  by 329 votes to 300 the second reading of the European Union (withdrawal) (No 6) bill proposed by Hilary Benn.

Later the same day the Benn bill passes the third and final reading needed to become law, this time by 327 to 299 votes.

Johnson responds by attempting to force an early general election. The 298 MPs who support him are short of the two-thirds majority required by the Fixed-term Parliaments Act, making it a third defeat in a single day for the government.

Dominic Grieve's bid to force the government to release documents related to the Operation Yellowhammer no-deal planning and on the decision to prorogue parliament defeats Johnson by 311 to 302.

Johnson's second call for an early general election is supported by 293 MPs, still short of the two-thirds majority required. Parliament is prorogued and MPs briefly occupy the chamber after the session is closed. 

The supreme court rules that Johnson's closure of parliament was unlawful and that MPs must return.

In the first vote in the reconvened House of Commons, MPs vote by 306 to 289 against a three-day recess to allow Conservative MPs to attend their party conference.

“The Benn Act is watertight,” Gauke told BBC Radio 4’s Today programme. “The overwhelming legal consensus is that the courts will declare that the Benn Act is effective, and the government will be forced to comply with it.”

Asked whether he would challenge any government attempt to bypass the act, Gauke said: “I don’t know whether it will be me personally, but if it is necessary for it to be challenged, it will be challenged.

“And there is time from the 19 October and the 31 October, to go to the courts and ensure that the law is properly applied.”

In a speech on Thursday night, the former prime minister Sir John Major said he feared the government would try to bypass the act through an order of council.

“It is important to note that an order of council can be passed by privy councillors – that is government ministers – without involving HM The Queen,” he told the Centre for European Reform thinktank.

But he added: “I should warn the prime minister that – if this route is taken – it will be in flagrant defiance of parliament and utterly disrespectful to the supreme court.

“It would be a piece of political chicanery that no one should ever forgive or forget.”

Prof Mark Elliott, the deputy chair of law at the University of Cambridge, said using the royal prerogative in this way would flout the 1688 Bill of Rights. He told Today: “Any suggestion that the prerogative could be used for this purpose is entirely without foundation, and would be directly contrary to the basic principle of parliament’s sovereignty.”

Mark Elliott (@ProfMarkElliott)

Attempting to use the prerogative to suspend an Act of Parliament would amount to an assertion of a dispensing power - a power that is explicitly denied by the Bill of Rights. /4

September 26, 2019

Elliott also said the government had no grounds for invoking emergency legislation to bypass the Benn Act, amid concerns that ministers are preparing the ground, citing fears of civil unrest.

A cabinet minister told the the Times there was a risk of a “violent popular uprising” if a second referendum overturned the result of the first.

Elliott told Today that the Civil Contingencies Act was not “a sound legal foundation for what seems to be planned”. He explained why in a series of tweets.

Mark Elliott (@ProfMarkElliott)

Ministerial assertion that there may be civil unrest if Brexit isn't delivered comes nowhere close to triggering powers under Civil Contingencies Act. Nor is it at all clear that, if there were civil unrest, suspending Benn Act would be necessary & proportionate (as CCA requires) https://t.co/meajk5Dcf5 pic.twitter.com/or2gzWXa6M

September 27, 2019
Mark Elliott (@ProfMarkElliott)

It is very difficult to see how those conditions could be met. An emergency means threats of serious damage to human welfare, the environment or national security. No emergency exists or is imminent that would justify suspension of the Benn-Burt Act. /9

September 26, 2019

In response to warnings about possible civil unrest, David Lammy, the Labour MP for Tottenham, which was the scene of riots in 2011, said: “Threats can never be used to get your own way.”

David Lammy (@DavidLammy)

I've seen the terror, chaos and pain of riots up close. This is intimidation by the government. It's crass, cheap and dangerous. Threats can never be used to get your own way. pic.twitter.com/L8KoBUbQ9j

September 27, 2019