Brexit probably generated the most discussion over political events in contemporary British history. One of the key laws related to it is the Benn Act, which received Royal Assent in November 2019 and aimed to prevent a no-deal Brexit. Over time, many have asked a key question of this process: are there loopholes in the Benn Act?
This guide outlines the Benn Act, its purpose, how it works, and the extent to which politicians have attempted to circumvent it. We will break everything down into manageable sections to enable you to better understand this legislation and its place in the Brexit negotiations.
What Is The Benn Act?
The Benn Act is the common name for the European Union (Withdrawal) (No. 2) Act 2019. In September 2019, it received Royal Assent from Parliament. The Ben Act’s principal aim was to prevent the UK from leaving the EU with no deal.
At the time, numerous Members of Parliament worried that a no-deal Brexit would harm trade, jobs, and the economy. The Benn Act required the Prime Minister to request extensions from the EU if Parliament had not approved Brexit arrangements.
Why Was the Benn Act Introduced?
The Benn Act was introduced in a period of political crisis. Boris Johnson (the then Prime Minister) had described that there would be a deal or no deal by 31 October 2019, and the United Kingdom would leave the EU, “do or die.” Many MPs did not believe he could avoid leaving without a deal.
In order to limit the risk of a no-deal Brexit, Parliament legislated. The law required the Prime Minister to request an extension from the EU for an additional three months if no leave deal were able to be agreed upon at Parliament.
How Did the Benn Act Work?
The Benn Act was very clear. If Parliament had not agreed to a deal by 19 October 2019, the Prime Minister would send a letter to the EU requesting an extension and asking for a three-month extension.
The law provided the precise wording for the letter to try and prevent the Prime Minister from changing what was sent. The EU decided they would extend the leave negotiations.
Did the Benn Act have Loopholes?
Now we get to the interesting question: were there loopholes in the Benn Act? Some legal theorists contended the law was so tight there was no large amount of space for evasion. Yes, others have pointed to ways that the Prime Minister tries to weaken or delay the effect of the law. Let’s examine some of these potential loopholes.
Loophole 1: Sending a Second Letter
One suggestion was that the Prime Minister send the extension request letter required by the law but then send a second letter that says the UK government didn’t really want an extension.
This was a technical compliance with the law but still intended to try to influence the decision of the EU. Actually, Boris Johnson specifically did this. He wrote the required letter, which was not signed, and also sent another letter saying he personally did not support an extension.
Loophole 2: Delay Action or Challenge the Law
Another loophole is delaying acting until the last possible moment; the government could restrict Parliament’s options. Some speculated the prime minister would challenge the law in court or try to argue it was unconstitutional. However, the courts had already demonstrated strong support for Parliament’s role in Brexit, so this avenue of delay was more risky.
Loophole 3: Asking a Friendly Country to Block the Extension
Some speculated that the PM could comply with the law by requesting an extension and secretly requesting another EU country to object to it. It took consent from all 27 EU member states, so it only took the veto from one country to reactively prevent the extension.
The UK would technically have followed the law but still remain with a no-deal Brexit. However, EU countries had signaled that they preferred to avoid no-deal as much as we did, so this was not a viable plan.
Loophole 4: Use of International Agreements
Rather a few commentators suggested that the Government could use another international agreement or treaty to diminish the impact of the Benn Act. This was complicated and unclear and actually went to show that some commentators thought that it was questionable that the law would be fool-proof.
Did the loopholes work?
Ultimately, none of the above loopholes worked, the Benn Act got implemented, the PM was forced to send the letter, and the EU granted the extension to 31 January 2020. Listing the attempts at finding loopholes shows the law was enough to achieve its key aim: preventing a no-deal Brexit in October 2019.
The Impact of the Benn Act
The Benn Act has had a significant role in overall outcome of Brexit:
- It prevented a “no-deal” Brexit in October 2019.
- It placed more power in Parliament than the executive in terms of Brexit.
- It illustrated that MPs can act swiftly to put a stop to Government plans.
- It prevented the UK from leaving the EU until a deal was finally made.
- It created legal challenges, and prompted debates about the bounds of executive power.
- It provided a precedent showing how legislation could intervene to prevent an outcome.
- It exposed the tension between Government and Parliament during Brexit.
Are there loopholes in the Benn Act? The answer is both yes and no. Some loopholes were explored, and various attempts to create workarounds were scrutinised. Ultimately, the Benn Act achieved its purpose to extend and prevent a no-deal Brexit in 2019.
The Benn Act is relevant because it shows how politics, law and strategy meet. It reinforces the positions of political leaders who attempt to try to avoid their own rules to make their own outcomes, and shows that the system can hold, regardless of the efforts to attempt to get around the Bens Act. For anyone interested in Brexit, understanding the Benn Act is key to understanding how the UK left the EU.
