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There comes a moment in some No.10 Lobby briefings when we hacks know that we are getting a very carefully calibrated government line. After the to-and-fro over a vexed issue, the PM’s official spokesman will turn wearily to his big black folder and read out a phrase that reeks of hours of huddled meetings in Downing Street. It’s not quite the Gospel according St Boris, but you know it’s their latest formulation on A Big Policy Issue.
Today, when asked how Boris Johnson would comply with the Hilary Benn Act (that forces a Brexit delay beyond October 31), the black folder was opened once more. First we got the usual political oxymoron of ‘yes, the PM will comply with the law and we will be leaving on October 31’. But then we got something new: “The manner in which this policy is lawfully achieved is a matter for the government.”
Does that word ‘manner’ provide the wriggle room that many Tory MPs and Leave voters have been hoping for? Although the act is specific that it would require the prime minister to write a letter to the EU requesting an extension, could some other formal figure like cabinet secretary Sir Mark Sedwill write the letter on the PM’s behalf? Could that give him a better chance of telling voters his ‘do or die’ pledge was broken but his hands were tied? Johnson was doing his ‘man of the people’ thing at yet another NHS hospital today and he clearly won’t give up that mantle on Brexit.
Of course, the Benn Act’s compliance won’t just be ‘a matter for the government’, it will be a matter for the courts. Some Johnson allies can’t wait to bog the whole thing down in legal action in that tight window from October 19 (when Benn kicks in) and Halloween. The whole issue will get a reheat again tomorrow in the Scottish Court of Session.
What was notable about today was that parliament clearly felt confident that the Benn Act is so watertight that there’s no need - yet - to draft any fresh emergency legislation in case the PM pulls a fast one.
This morning confirmed again that the opposition parties are split over other issues, most obviously whether Jeremy Corbyn should be the caretaker PM after a vote of no confidence. But they are doggedly united in seeing the Benn Act as robust. I’m told there’s a consensus that there will be no push for any other safeguards this side of the EU summit on October 17-18.
And although the government nominally won its case in the Scottish Court of Session today, judge Lord Pentland’s written ruling had a very stern warning. “There can be no doubt,” he wrote, that Johnson “now accepts that he must comply with the requirements of the 2019 Act and has affirmed that he intends to do so”.
Pentland’s extra caveat was even more notable, and must have sent a shiver down the spine of attorney general Geoffrey Cox (who has been pushing hard for the law to be complied with): “It would be destructive of one of the core principles of constitutional propriety and of the mutual trust that is the bedrock of the relationship between the court and the crown, for the prime minister or the government, to renege on what they have assured the court that the prime minister intends to do.”
Mutual trust? Constitutional propriety? They are not concepts that either side in the Brexit Wars thinks their opponents adhere to these days. Many Leaver Tories think that the Speaker and Dominic Grieve and co have torn up parliamentary convention, as well as the fundamental democratic principle that referendum results have to be upheld. Remainers counter that illegal prorogations and bespoke ‘manners’ of complying with the law are the real crimes against the constitution.
Although some procedural ambushes may be tried tomorrow (and the PM is bound to have a proto-Queen’s Speech moment on domestic policy), the real showdown won’t take place this week. But just because the ‘Rebel Alliance’ are keeping their powder dry doesn’t mean there aren’t lots of avenues open to them too. Don’t forget they spent the entire summer wargaming this. So far their main weapon has proved remarkably resilient, but they have ammunition in reserve, if needed.
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