Westminstenders: Extension or No Extension

[RedToothBrush]

Johnson has sent a letter he said he never would asking for an extension.

We now wait to see what the EU come back with.

It's likely to be a technical extension. At best.

France are really not happy with the idea of an extension and Macron is flexing his muscles with the EU at the moment. He has been prepared to upset all the other EU countries as he proved with blocking progress on accession to the EU for Northern Macedonia and Albania this week. Macron is fighting his own domestic battles.

It looks as if Johnson now has a majority for a deal. What that deal will ultimately look like will be dictated by the Withdrawal Agreement Bill which sets out implementation of the Withdrawal Act.

However, with the DUP firmly offside the chances of a vote of no confidence go up. As do the chances of an election.

And its also worth pointing out that whilst the WAB is legally binding if we have an election and Johnson gets a majority, then there can always be changes made to domestic law. (implementation of the WA rather than the agreement principles of the WA agreed with the EU).

Thus any 'assurances' over workers rights and regulatory standards are only as good as long as this parliament...

[PostNotInHaste]

Actually I think it was noon on Monday for amendment submission deadline.

[MockersthefeMANist]

It's "Extension Rebellion"

And I was hoping for the Tower of London, but if they stick BJ in the dungoens of Edinburgh Castle, that would do for me.

I like the cell where they did Rizzio in.

[NoWordForFluffy]

Surely the Letwin amendment stands as is? BoZo is also tabling the secondary legislation as well, apparently.

Why he can't just bloody do what he's been told to do and let the MPs have time to analysis the sodding deal, I don't know (well, I do, but it pisses me off how much of a twat he is).

[prettybird]

Two now dead cats forever with a special places in our hearts

I can see why Parliament won't go for a VoNC or a GE until the extension has been signed and sealed. The slippery bastard was hat we have as the misfortune of tholing as our PM will do literally anything to stop it so it has to be watertight.

I hope that the Scottish Court gives him what for tomorrow and makes him send the letter properly and rescind the accompanying letter & cover note - and gives him a flea in the ear in the process.

[RedToothBrush]

For the newfound constitutional geeks, introducing the Padfield Principle:

Laura Kuenssberg@bbclaurak
Unsurprisingly, given what's happened tonight, many of govt's opponents are furious about his approach to sending letter to Tusk, with his own extra correspondence - as it happens, Lord Pannick who beat the govt in Supreme Court case talked about possibilities earlier...

Fascinating to read what he said, here's 1st chunk - 'The Benn Act..does not, and could not, oblige the EU Council to grant an extension,nor does it prevent the PM reminding the EU member states that he does not want an extension, wants to leave on 31 October'....

He goes on..'and is sending the letter only because Parliament has required him to do so. I do not see that the Benn Act can sensibly be interpreted as requiring the Prime Minister to abandon his policy objectives.'

But Pannick says.. 'There is a very fine line between not frustrating the Benn Act and the PM making clear to other EU leaders that his policy is unchanged. What if the PM telephones another EU leader on Monday and encourages him or her to oppose or even veto an extension?'

And here, in Pannick's words, is the preview for what may happen next week - the peer and QC said, 'That would be an interesting Supreme Court case.' .. stage is set


David Allen Green@davidallengreen
A thread on Johnson's request for an extension under the Benn Act 1.

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 2.

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 3.

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 4

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 5.

Send a side letter?

But the problem here was our old friend Padfield

What could the government do about Padfield? 6

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 7.

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 8.

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 9.

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 10.

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 11.

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 12.

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 13.

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 14.

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 15.

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 16.

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 17.

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 18.

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

19 & ends

[AuldAlliance]

PMK with another kitten pic, for therapy.
No time to post, but thanks to all for their input and analysis.

[RedToothBrush]

Re Vonc

No incentive to until extension in place.

But once WA and WAB pass parliament it becomes in effect everything to play for again

Changes to implementation have to be the top political objectives for the opposition.

[NoWordForFluffy]

I agree, BCF.

They can then have a GE on the future relationship in spring, if the votes are still there for a VoNC.

We really do need to look at what's viable, but just what we want in an ideal world. I think we'll get the PV numbers answer next week, which should clarify / sharpen minds.

[Butterymuffin]

The embarrassment of having this power-crazed toddler as our prime minister continues. Thankfully Tusk is a grown up and the non-signing of the letter has been ignored.
Surprised May spoke yesterday. Loyalty to the party really is all for her.

[lonelyplanetmum]

Yes thankfully Tusk is a statesmanlike grown up.

Looking at those letters it is clear to me that the government ( with the benefit of legal experts) did ensure that the side letter did not have any breaking of the Benn Act. The wording I referred to upthread makes it clear it was a valid request.

So who is the " I didn't sign it ner ner" spin actually for? The Faragist voter? The ERG member?

Thank you RTB.

[OhYouBadBadKitten]

Morning all.

Once more we wait in limbo.

[NoWordForFluffy]

It's for the 'I'll never request an extension' crowd, I think. He didn't sign it, therefore he didn't request it. Maybe. (Twisted logic, but a certain demographic will fall for it.)

Why isn't he dead in a ditch by now? I thought that was his preferred option? 🤔🤔

[Peregrina]

My thoughts after returning from yesterday's march:

I was delighted to see that the DUP went and voted for Letwin. Johnson would have won otherwise.

As for people heckling JR-M and son and Leadsom- are we sure they weren't agents provocateurs? I would not put it past a bunch of Brexiters/ERG types to organise a group of actors to do this. We found ourselves following Michael Heseltine at one point - no jeering and heckling there, of course.

I am pretty disgusted that Johnson didn't sign the letter - it makes him look puerile (word with Latin origin, how clever am I? ). I am surprised that old-fashioned Tories aren't disgusted by this behaviour.

As to Johnson getting a huge majority - May was supposed to last time, but it didn't happen.

[WorriedMutha]

Forget the letter. Tusk views it as a request for an extension so end of story. Taking Johnson to court and making him a martyr is just writing his election material for him. Classic Trump. Better to take the view that he said he would die in a ditch rather than extend but in the end he caved.

[OhYouBadBadKitten]

No more Letwin amendments

"Sir Oliver Letwin, author of that controversial amendment to the PM's deal, tells the BBC's Andrew Marr that he nonetheless will support the deal through its second reading.

Sir Oliver says he has no new plans to cause problems for the government.

"I am behind the government now," he says. "There will be no new Oliver Letwin amendments next week."

So a) does his amendment as voted through still stand? b) did yesterday count as the first reading?

[OhYouBadBadKitten]

I guess though that the amendment is considered nullified by the request for an extension as per the Benn act?

[borntobequiet]

PMK thanks again Red.

[bellinisurge]

Thank you for your tireless work @RedToothBrush . Although I'm sure you are as knackered by it as we all are.

[Tanith]

That an extension had to be requested is entirely the fault of the Government.
Had they got on with leaving in a sensible and controlled manner, without frittering away their time in proroguing Parliament and trying to leave with No Deal, there wouldn’t be this rushed through, back-of-an-envelope BJ deal.
Parliament rejected TM’s deal three times; why they think Parliament will accept an even worse deal, I really don’t know.

Regarding the heckling of the politicians yesterday, firstly no MP should be put in fear. Perhaps now they will take the abuse of MPs more seriously than they have done to date.

However, the clip I saw on the BBC did not show the kind of abuse that, for example, Anna Soubry has been subjected to. I’m also pretty sure the man yelling at Michael Gove was a Leaver. He didn’t have police protection, yet none of these scary Remain protesters were attacking him, nor even trying to drown him out.

[NoWordForFluffy]

The amendment stands. But what was the point of it if they'll vote for the deal before its complied with? That makes no sense!

[Driedlimes]

Depressing reading from Paul Waugh at Huff Post - if he's right:

But although that majority of 16 looked healthy today , Letwin is the first to say he will now back the PM’s deal when it returns in the form of legislation next Tuesday. If the threat of no-deal is finally, categorically removed by Johnson sending a letter to Brussels for an extension to the UK’s EU membership, he won’t be alone.
That 16 figure feels like it could be slowly washed away over the next three days, as at least six ‘whipless Tories’ like Letwin support Johnson’s deal. Philip Hammond, David Gauke and others have always said they want a deal and they will get their wish. Add in some Labour MPs in Leave areas who have just been waiting for no-deal to be legally outlawed for three months, and you can see the PM winning the day.
Politicos often ask themselves whether we’ve reached ‘Peak Corbyn’. But today it felt like we had reached ‘Peak Letwin’. And although the large crowd in Parliament Square roared when the vote was announced on a huge screen, that too felt like the last dying twitch of a movement that now looks doomed. Appearing to heckle Jacob Rees-Mogg’s 12-year-old son was also an ugly look for a movement that prided itself on being morally superior to the Leavers’ own aggressive tactics.
The pro-People’s Vote MPs will push one final time when the Withdrawal Agreement Bill arrives next week. But having waited and waited for their moment in the hope they can bring more MPs on board, that moment may have now passed. They won’t be able to amend the second reading of the bill, which may itself be passed with a hugely important vote for Johnson’s deal.
‌Most important of all, the People’s Vote campaign has been waiting for ‘moderate’ Tories to come on board (one claimed that half of the 21 would back a referendum), but those same Tories now look ready to call it a day and back the PM. The DUP are so upset with No.10 they are flirting with a second referendum threat, but few think that will happen.
The EU, which will probably hold off until Tuesday to see whether parliament really can pass the deal, may then offer only a short extension to say mid-November to allow time for the legislation and ratification by the EU itself. Again, that can only help Johnson and focus MPs’ minds once more on ‘this deal or no-deal’.
Some pro-EU MPs believe that Tory Brexiteers will peel off Johnson’s plans as soon as they see the cold reality of the Withdrawal Agreement Bill. I suspect that’s wishful thinking, particularly as the European Research Group (ERG) has today shown a unity and solidarity that may well survive the next few weeks. And with such tight numbers (Johnson may have a majority of just two next Tuesday), the pro-deal alliance will need to be ultra-disciplined over days of votes.
It’s often said that Boris Johnson’s worst enemy is Boris Johnson. And that could prove the one factor that halts what feels like a tectonic shift towards his deal. The PM reacted to the Letwin defeat today with a defiant line that “I will not negotiate a delay with the EU and neither does the law compel me to do so.” But he told EU council president Donald Tusk in a phone call on Saturday night that he would send the delay letter before 11pm, as the Benn Act demands.
If he hadn’t sent the letter, he would have triggered the resignation of some cabinet ministers and he swiftly put at risk the votes of all those Hammonds and Gaukes. Yes, he could get into a spat in the courts that would prove to Brexit Party voters that he was dragged kicking and screaming into delaying Brexit beyond October 31, but in the process he would have jeopardised his best electoral weapon of all: a deal.
However, his second letter to Tusk (making clear he doesn’t want that extension) means he may buy time to build his numbers next week. The EU could help him hugely by refusing to say anything by Tuesday - their silence effectively telling moderate Tory MPs ‘vote for this or you get no-deal anyway’. Even if the EU grant a short ‘technical’ extension possibly to mid-November, a pre-Christmas election would be impossible. Moreover, it feels we are moving towards a spring election. 
Despite a lack of support from the DUP, Johnson may also get his Queen’s Speech passed, then a Budget passed and end the year on a high. Meanwhile, Labour may well welcome a spring election with Brexit out of the way. Its hope is that Corbyn can ‘do an Attlee’: use a radical manifesto to defeat a sitting Tory PM coming off the back of a big victory, just as it did in 1945.
Johnson’s own slogan ‘get Brexit done’ sounds very much like the one the Tories used for Churchill: ‘Help him finish the job’. Yet the PM’s allies think Corbyn is no Attlee and history won’t repeat itself. The one person who won’t be standing in the election is Sir Oliver Letwin. For him, today really may be Peak Letwin. 

[bellinisurge]

What now?

[BestIsWest]

Pmk

[Driedlimes]

Apologies - that should have all been italicised & in paras

[BigChocFrenzy]

Britain Electss@britainelects*

On the deal which the UK government has just agreed with the EU:

Support: 32%
Oppose: 28%
Don't know: 40%

via @PanelbaseMD, 17 - 18 Oct

Westminster voting intention:

CON: 37% (-1)
LAB: 24% (+1)
LDEM: 16% (+1)
BREX: 12% (-)
GRN: 4% (-)

via @OpiniumResearch, 15 - 17 Oct, Chgs. w/ 04 Oct