According to one constitutional legal opinion, the Kinnock amendment makes the Benn Act impossible to satisfy:

‘The Prime Minister must seek … an extension of the period under Article 50(3) … in order to debate and pass a Bill to implement the agreement between the United Kingdom and the European Union under Article 50(2) of the Treaty on European Union, including provisions reflecting the outcome of inter-party talks as announced by the Prime Minister on 21 May 2019, and in particular the need for the United Kingdom to secure changes to the political declaration to reflect the outcome of those inter-party talks.’ [Kinnock additions emphasised]

Apparently, there were no outcomes of those inter-party talks; or at least an outcome of "no outcome". So any extension offered has to be on terms that can never be met.


If it is impossible to satisfy, then, is it an absurd law, in the technical sense, not the pejorative sense? If the Benn Act is actually unsatisfiable, then does the letter requesting an extension to the Exit Date of 31st October still have legal effect?

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    This sounds less like an honest question and more like a rant. It seems to me that you've already made up your mind that the Benn Act is impossible to satisfy and are here to tell us that, rather than actually asking the question in good faith. – F1Krazy Oct 28 '19 at 6:42
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    I skipped to the last para to see exactly what you're asking. And I don't see a question there, just a rant about "police state", "legalistic elite", " terrifying outcome" etc. (If I'm not mistaken you once object to me using "crashing out" as emotional language. Sauce, goose, gander.) – Fizz Oct 28 '19 at 7:34
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    I agree with the pair of you, but I also think that the initial part of the question is valid and worth answering, so I removed the ranty parts and left the part about the Kinnock amendment's effect on the validity of the law. – Dan Scally Oct 28 '19 at 8:04
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    @RinkyStinpiece there was a non-ranty part of your question that I also removed - the reference to Jackson v Attorney General. It was obviously a prelude to the rant so I chopped it too but I wanted to address it via a comment. You've raised this case a few times, but note that it helps your position vis a vis the Benn Act not in the the least. The comments were made in a "by the by" fashion, they do not form legal precedence and they were in any case referring to attempts by Parliament to curtail very specific rights, none of which are addressed by the Benn Act. – Dan Scally Oct 28 '19 at 8:10
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    "If the Benn Act is actually unsatisfiable, then does the letter requesting an extension to the Exit Date of 31st October still have legal effect?" - UK Gov has treated the letter as having legal effect, the EC has treated the letter as having legal effect. So it de facto has legal effect. – Lag Oct 28 '19 at 10:25

The premise of the question is incorrect. You link a single opinion about the effects of the law and treat it as truth. Despite this, the fundamental claim of the article that...

As may be seen, the Amendment obliges the Prime Minister to fulfil his statutory duty for a statutory purpose.

goes against the overwhelming weight of opinion amongst constitutional experts which is that the amendment did no such thing. It's not (by my understanding) actually even possible for a law to impose upon a Prime Minister obligations to hold a debate or pass a bill because such things are not within their gift. Standing Orders give the government control over much of scheduling, but Standing Orders are ultimately subject to Parliament's wishes, and are regularly amended and temporarily set aside when it pleases the House. The overwhelming majority of legal opinion I have seen is that the Kinnock amendment had essentially no legal effect. Note too that this is clearly also the legal opinion of the government given the PM has accepted he is compelled to comply with the Act (see the averments to the Court of Session) and has done so (so far, and given concrete indications that he will comply with the final provision by accepting the Extension that the EU offers). If you were right, the government would have argued as such in Court to avoid the humiliating political defeat this has inflicted on them.


Here's a contrary legal opinion by Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University.

According to the ‘Kinnock amendment’ added to the Act, the request has to be for the purpose of passing a bill to implement the withdrawal agreement, including provisions giving effect to inter-party talks, particularly possible amendments to the political declaration on the EU/UK future relationship (discussed here). However, this is not reflected in the letter of request which the Prime Minister must send (the letter is a Schedule to the new law), and does not impact upon the separate obligation to accept (subject to an unrelated exception) an extension decision if the EU adopts one. There’s no explicit obligation to hold a vote on a withdrawal agreement, or to publish and/or vote on a bill to implement that agreement.

The trick is basically that the Benn required a specific letter to be sent, the contents of which was not affected by the Kinnock amendment. Also, the provisions of the Act that require the PM to accept the EU's extension offer were not modified by Kinnock.

PM Johnson has clearly pushed the Benn Act to its legal limit, by sending the "Parliament's letter" (as he put it) unsigned and accompanied by his own (signed) letter. Nonetheless, the EU has found the extension request valid, and has offered this morning a "flexetension" to Jan 31. I guess will find out soon enough if Johnson agrees to it, or if he finds a legal loophole in the Benn Act as you suggest.

And Johnson has written back to Tusk now accepting the extension today. In the letter (and yes, he signed it this time) Johnson writes

I have no discretion under the UK's European Union (Withdrawal) (No.2) Act 2019, which was imposed on this Government against its will, to do anything other than confirm the UK's formal agreement to this extension, as per the attached draft Decision.

Johnson also raised a point of order on that acceptance in Parliament today, but I can't find the transcript of the latter yet.

But it seems clear that Johnson complied with both "phases" of the Benn Act, in ultimately agreeing with the EU extension offer.

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