Looking for loopholes: How could Johnson avoid delaying Brexit?

Boris Johnson has said he will refuse to seek a delay to Brexit, raising fears he could try to exploit a loophole to bypass legislation aimed at preventing the country leaving the European Union without a deal.

The prime minister has made what appears to be two contradictory statements: he will obey the law, but will not request an extension to Britain's scheduled October 31 exit.

Junior Brexit minister James Duddridge was repeatedly asked by MPs in parliament how the PM could do both. He said the Government's "Plan A" was to get round the law by agreeing a Brexit deal.

Under the so-called Benn Act if, by October 19, the Government has not got parliamentary approval for a divorce deal with Brussels or for leaving the EU without a deal, Johnson must request a delay until January 31, 2020. The act even gives a text of the letter he must send.

So how could Johnson avoid a Brexit delay?

1) DOUBLE CROSS

Jolyon Maugham, a lawyer who is part of the legal team which defeated the Government over its decision to suspend parliament, said a weakness of the law is that if a divorce deal is approved by parliament on, or prior to, October 19, the obligation to request an extension will cease.

However, Maugham says further preconditions need to be met before the divorce deal can be ratified and no-deal avoided. In particular, a separate law implementing the withdrawal agreement needs to be approved by parliament by October 31.

He said there could be a scenario where lawmakers pass the divorce deal on or before Oct. 19, and therefore Johnson is not required to write the letter, but then the subsequent legislation gets blocked in parliament and Britain leaves without a deal.

2) GET EU TO REJECT EXTENSION REQUEST

The Government could comply with the letter of the law but not the spirit of it, by requesting an extension but seeking to get the EU to reject it.

It could do this in a number of ways:

a) Send a second letter - The law sets out the wording of the letter the PM has to send to Brussels to request the delay. British media have reported he was considering sending a second letter making clear the Government does not actually want a delay. Legal experts have said any second letter is likely to be considered unlawful however.

b) Veto the extension - Any extension has to be agreed by all EU member states. Some MPs have suggested Britain could seek to veto its own extension request. Or persuade a country friendly to Britain, such as Hungary, to veto it.

c) Threaten sabotage - The Daily Telegraph newspaper quoted a source in Johnson's office saying Britain would make clear it would sabotage any request for delay and then the delay itself. Britain could cause havoc to EU business during the delay, for example by vetoing key decisions.

"Once people realise our plans, there is a good chance we won't be offered a delay," the source was quoted as saying.

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Prorogation of Parliament ruled unlawful by Supreme Court
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Prorogation of Parliament ruled unlawful by Supreme Court
Gina Miller leaves Millbank in Westminster, after judges at the Supreme Court ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
Gina Miller leaves Millbank in Westminster, after judges at the Supreme Court ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
Alan Duncan MP, former Foreign Office speaking to media after a ruling that the prorogation of Parliament was unlawful in London,UK on September 24, 2019. The Supreme Court ruled that Prime Minster Boris Johnson acted unlawfully when he requested that the Queen prorogue parliament for more than a month, and that parliamentarians should reconvene "as soon as possible." (Photo by Claire Doherty/Sipa USA)
Joanna Cherry, SNP MP and QC, who led the cross-party legal action in Scotland against the Prime Minister speaks to media after a ruling that the prorogation of Parliament was unlawful in London,UK on September 24, 2019. The Supreme Court ruled that Prime Minster Boris Johnson acted unlawfully when he requested that the Queen prorogue parliament for more than a month, and that parliamentarians should reconvene "as soon as possible." (Photo by Claire Doherty/Sipa USA)
First Minister Nicola Sturgeon delivers her statement, in response to the Supreme Court ruling, at the Scottish Parliament, Edinburgh.
Prime Minister Boris Johnson (left) meets US President Donald Trump at the 74th Session of the UN General Assembly, at the United Nations Headquarters in New York, USA. PA Photo. Picture date: Tuesday September 24, 2019. Mr Johnson will return to the UK Wednesday following the decision at the Supreme Court ruled that his advice to the Queen to suspend Parliament for five weeks was unlawful. See PA story POLITICS UN. Photo credit should read: Stefan Rousseau/PA Wire
Prime Minister Boris Johnson addressing US business leaders at Hudson Yards in New York after judges at the Supreme Court in London ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
Former Work and Pensions Secretary Amber Rudd leaves Millbank in Westminster, after judges at the Supreme Court ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
Prime Minister Boris Johnson in New York after judges at the Supreme Court in London ruled that his advice to the Queen to suspend Parliament for five weeks was unlawful.
Businesswoman and campaigner Gina Miller, (C) who launched legal proceedings against Prime Minister Boris Johnson's government over the suspension of parliament leaving the Supreme Court after a ruling that the prorogation of Parliament was unlawful in London,UK on September 24, 2019. The Supreme Court ruled that Prime Minster Boris Johnson acted unlawfully when he requested that the Queen prorogue parliament for more than a month, and that parliamentarians should reconvene "as soon as possible." (Photo by Claire Doherty/Sipa USA)
Sinn Fein Vice President Michelle O'Neill (centre) with party colleagues Caral Ni Chuilin (left) and Chris Hazzard (right) outside the party's headquarters in Belfast, as they react to the Supreme Court ruling that suspending Parliament was unlawful.
Speaker of the House of Commons John Bercow on College Green in Westminster, announcing that the House of Commons will resume business from Wednesday, after judges at the Supreme Court ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
A protester holds a giant P45 with Prime Minister Boris Johnson's name on it outside the Houses of Parliament in Westminster, after judges at the Supreme Court ruled that his advice to the Queen to suspend Parliament for five weeks was unlawful.
Speaker of the House of Commons John Bercow on College Green in Westminster, announcing that the House of Commons will resume business from Wednesday, after judges at the Supreme Court ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
Labour delegates react as the Supreme Court rules Boris Johnson acted unlawfully when he asked the Queen to suspend Parliament for five weeks, on the fourth day of the Labour Party annual conference at the Brighton Centre in Brighton. Picture dated: Tuesday September 24, 2019. Photo credit should read: Isabel Infantes / EMPICS Entertainment.
Jeremy Corbyn reacts as the Supreme Court rules Boris Johnson acted unlawfully when he asked the Queen to suspend Parliament for five weeks, on the fourth day of the Labour Party annual conference at the Brighton Centre in Brighton. Picture dated: Tuesday September 24, 2019. Photo credit should read: Isabel Infantes / EMPICS Entertainment.
Speaker of the House of Commons John Bercow on College Green in Westminster, announcing that the House of Commons will resume business from Wednesday, after judges at the Supreme Court ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
Labour delegates react as the Supreme Court rules Boris Johnson acted unlawfully when he asked the Queen to suspend Parliament for five weeks, on the fourth day of the Labour Party annual conference at the Brighton Centre in Brighton. Picture dated: Tuesday September 24, 2019. Photo credit should read: Isabel Infantes / EMPICS Entertainment.
(left to right) John McDonnell and Rebecca Long-Bailey react during Jeremy Corbyn's speech to the news of the Supreme Court ruling Boris Johnson acted unlawfully when he asked the Queen to suspend Parliament for five weeks, on the fourth day of the Labour Party annual conference at the Brighton Centre in Brighton. Picture dated: Tuesday September 24, 2019. Photo credit should read: Isabel Infantes / EMPICS Entertainment.
A man wearing a giant Boris Johnson mask, dressed as a prisoner, outside the Supreme Court in London, where judges have ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
SNP Westminster leader Ian Blackford MP leaving the Supreme Court in London, where judges have ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
(Left to right) Leader of The Independent Group for Change Anna Soubry, Plaid Cymru Westminster Leader Liz Saville-Roberts, SNP Westminster leader Ian Blackford MP, and Green MP Caroline Lucas, outside the Supreme Court in London, where judges have ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
Gina Miller speaks to the media outside the Supreme Court in London, where judges have ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
(Left to right) Leader of The Independent Group for Change Anna Soubry, Plaid Cymru Westminster Leader Liz Saville-Roberts, SNP Westminster leader Ian Blackford MP, and Green MP Caroline Lucas, outside the Supreme Court in London, where judges have ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
Anna Soubry reacts outside the Supreme Court in London, where judges have ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
SNP MP Joanna Cherry and lawyer Jolyon Maugham speaking to the media outside the Supreme Court in London, where judges have ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
A man reacts as he leaves the Supreme Court in London, where judges have ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
Protesters celebrating outside the Supreme Court in London, where judges have ruled that Prime Minister Boris Johnson's advice to the Queen to suspend Parliament for five weeks was unlawful.
Protesters outside the Supreme Court in London, where judges are ruling on the legality of Prime Minister Boris Johnson's decision to suspend Parliament for five weeks.
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3) TWO CONFLICTING LAWS

While the Benn Act requires Johnson to seek an extension to Brexit if parliament has not approved either a deal or leaving without a deal by October 19, a different law, the European Union Withdrawal Act, states Britain will leave the EU on October 31.

It is not clear which of these laws takes precedence.

Pro-Brexit Conservative lawmaker Bill Cash pointed to this in parliament on Thursday saying: "There is an apparent inconsistency between that (Benn) Act and the Withdrawal Act... the reality is compliance is not just a simple question. It is a matter of grave importance in terms of which law is the law of the land."

The Government has repeatedly said only that it will comply with "the law", without specifying which one. It may try and argue that it is following the law by taking Britain out on October 31.

4) IGNORE THE LAW

Former Conservative leader Iain Duncan Smith has urged Johnson to ignore the law and said he would be a Brexit "martyr".

If this happened, Johnson could be found in contempt of court and risks being jailed.

Anti-Brexit campaigners have filed a legal challenge in Scotland in an effort to compel Johnson to seek an extension to membership of the EU.

The case is being fronted by Maugham, who said this week the case could end up before the Supreme Court in mid-October. Maugham said that if Johnson refuses to seek an extension they would ask the court to make the extension application on the prime minister's behalf.

5) OTHER LOOPHOLE?

It is possible the government could have identified another unknown loophole. Questioned about the delay law in parliament on Thursday, Junior Brexit minister James Duddridge said it was "not perfect".

He specifically cited an amendment to the law, put forward by opposition Labour lawmaker Stephen Kinnock, which sets out that a delay should be used to debate and approve a Brexit deal based largely on the agreement reached by Johnson's predecessor Theresa May.

"The Kinnock amendment that was passed, the Government believes does have deficiencies and its effect is unclear," he said.

Asked whether he thought the law requires the Prime Minister to write a letter requesting an extension, he said: "The government will take legal advice on this."

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