Benn Act: what does it say - and will Johnson have to comply?

With hopes fading of a Brexit deal by 31 October, the spotlight is returning to the Benn Act.

Under the new legislation, the prime minister would be forced to ask for an extension to negotiations if a withdrawal agreement is not agreed with the EU by the Halloween deadline.

But Boris Johnson has repeatedly stated that Britain will leave the European Union by the end of October “come what may” and said he would rather be “dead in a ditch” than ask for an extension - fuelling speculation that he might have found a way to circumvent the act.

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What is it?

The Benn Act, officially called the EU Withdrawal (No.2) Act, is legislation presented by Labour MP Hilary Benn, “and has been signed by opposition leaders and recently sacked Conservatives, including Alistair Burt and Philip Hammond”, says The Sun. The act is designed to force Johnson to ask the EU for an extension to the Article 50 negotiation period.

The legislation states that unless MPs approve a Brexit deal or specifically vote for a no-deal Brexit by 19 October, the PM must write a letter to the president of the European Council that actively “seeks” an extension until the end of January 2020.

Those behind the act believe it leaves little wiggle room. As Benn explains: “If the European Council proposes an extension to a different date then the prime minister must accept that extension within two days, unless the House of Commons rejects it.”

What do critics of the Benn Act say?

The underlying aim is to prevent a no-deal Brexit at the end of October, but critics have dubbed it a “surrender act”. Johnson and his supporters argue that by taking the no-deal option off the table, the act has weakened Britain’s hand in negotiations.

When criticised for using the word “surrender” to describe the Benn Act, Johnson responded that he could also call it the “abject capitulation act”.

Can Johnson circumvent the legislation?

Former PM John Major is among those who have warned that Johnson may try to get around the legislation.

Major said last month that 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,” said the former Tory leader.

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.”

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Government sources said the scenario outlined by Major was “complete nonsense”. However, Dominic Cummings, Johnson’s senior adviser, reignited speculation when he told Sky News: “There are obviously loopholes here because the Remain lawyers are all babbling away on Twitter about the loopholes. So, they’ve said themselves that there are loopholes.”

Many MPs believe Downing Street is considering exploiting the Civil Contingencies Act 2004, which grants special powers in the event of a national emergency, as a way to get around the act. Some insiders have even suggested Johnson will “squat” in No. 10 if MPs attempt to unseat him.

After Johnson warned of unrest over Brexit delays, Labour’s Brexit spokesperson, Keir Starmer, said: “Whipping up the idea of riots or even deaths if we do not leave the EU on 31 October is the height of irresponsibility. But it is also pretty obviously being orchestrated.”

David Gauke, the former justice secretary, has said that ministers cannot bypass the Benn law. Gauke, one of 21 Tory rebels stripped of their whips for voting for the legislation, said: “The Benn Act is watertight. 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.”