Mr Johnson’s hopes of emerging with a withdrawal agreement to present to the House of Commons at Saturday’s special sitting were dealt a blow after DUP leader Arlene Foster confirmed her party could not back his current plan, citing “customs and consent issues”, coupled with “a lack of clarity on VAT”. The Benn Act, which received Royal Assent on September 9, requires Mr Johnson to request an extension to Article 50 if no deal is struck at the summit, which starts today.
However, strategists have pointed out since European law currently takes precedence over British law, it may be possible to prevent them granting a delay.
If all 28 leaders of the bloc signed up for a declaration stating there was no need for an extension because talks were ongoing, the Benn Act could be circumvented – in theory at least.
A Cabinet source told The Sun: “We would have a good chance of at least delaying writing the letter if the EU Council give us a useful decree.
It will probably still end up in court, but it’s worth a go.”
Leader of the House of Commons Jacob Rees-Mogg alluded to the possibility during an interview with BBC Radio 4’s Westminster Hour earlier this week.
He said: “The law of this land is subject to the law of the European Union, so we’ll have to see what the legal eagles think.
JUST IN: Crisis for Boris as DUP rejects deal ahead of EU summit
Mr Johnson last night told the 1922 committee of Conservative backbenchers: “If it is not possible to achieve a deal we will still leave the EU on the 31st of October.”
Pressed in Parliament by Labour MP Hilary Benn, after whom the bill is nicknamed, whether Mr Johnson would comply with the tenets of the legislation, Mr Barclay said: “I can confirm, as the Prime Minister has repeatedly set out, that firstly the Government will comply with the law, and secondly it will comply with undertakings given to the court in respect of the law.”
Asked how he he would make sure the UK left at the end of the month, Mr Barclay said: “We’ll cross that bridge in due course.
“There’s a number of variables that apply to what is a complex piece of legislation.”
Nevertheless, Mr Barclay said he was “unaware” of plans by Mr Johnson to send a second “political” letter along with one requesting a delay explaining the Government’s opposition to a delay, as well as threatening to disrupt EU business.
Mr Johnson is facing a race against time to get something ratified at today’s summit.
He is hoping to bring back a deal from the Brussels meeting of European leaders while winning the backing of the DUP.
However Ms Foster and her deputy, Nigel Dodds, released a joint statement hours before the summit was due to begin on Thursday, highlighting three major obstacles.
A joint statement said: “As things stand, we could not support what is being suggested on customs and consent issues, and there is a lack of clarity on VAT.
“We will continue to work with the Government to try and get a sensible deal that works for Northern Ireland and protects the economic and constitutional integrity of the United Kingdom.”
