Oliver Garner: The Benn-Burt Extension Act: A roadblock to a No-deal Brexit?

UK Constitutional Law Association

Introduction: extension and the Rule of Law

On 9 September, the EU (Withdrawal) (No.2) Act 2019 (‘Benn-Burt Extension Act’) received Royal Assent.  The Benn-Burt Extension Act imposes a statutory duty upon the Prime Minister (if the relevant conditions are met) to request and accept an extension of the withdrawal negotiating period under Article 50(3) TEU.  However, the Prime Minister has repeatedly stated that he will not request such an extension, ostensibly in clear conflict with the statutory obligations in the Act.

This reticence has prompted criticism over the Government’s commitment to the Rule of Law, and has given rise to speculation as to whether the obligations of the Benn-Burt Extension Act can be circumvented legally.  The Foreign Secretary has even stated that the Government will ‘test the law to the limit’.  Boris Johnson faces a trilemma: (1) avoiding an extension to Article 50; (2) remaining Prime Minister; and (3) not…

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