Boris Johnson was warned on Saturday that he risks a fresh challenge in the courts after he reacted to a humiliating Commons defeat over Brexit by calling on EU leaders to reject any extension of Britain’s membership of the European Union.
After MPs voted by 322 to 306 to withhold approval of his EU exit deal, the prime minister was obliged to write to Brussels by 11pm on Saturday to request an extension until 31 January 2020, in order to comply with the law under the terms of the Benn act.
But with the deadline approaching, Johnson wrote to Tory MPs saying he would tell the EU that “delay is not a solution”.
Shortly before the deadline European council president Donald Tusk tweeted: “The extension request has just arrived. I will now start consulting EU leaders on how to react.”
Johnson had sent three letters: an unsigned photocopy of the request he was obliged to send under the Benn act, an explanatory letter from the UK’s ambassador to the EU and a letter explaining why Downing Street did not want an extension because a Brexit extension would be “deeply corrosive”.
An EU source said that in the call between Tusk and Johnson at 8.15pm Brussels time on Saturday the prime minister had confirmed that the request would be sent within hours. Officials in Brussels said there was no doubt that an extension request would be granted, despite the prime minister’s attempts to throw doubt on such a decision. A decision on the terms could be taken later this month to allow for events to unfold in London.
Tusk will now speak to the EU27 heads of state. “This may take a few days,” the source said.
A former Tory cabinet minister said Johnson was clearly behaving in a way that was “against the spirit of the Benn act”, which required him to have asked for an extension by 11pm on Saturday if no Brexit deal had been approved by parliament by then, or parliament had not given its backing to a no-deal outcome.
The former minister said: “I think this will end up in the courts again. This is clearly against the spirit of the Benn act and is not consistent with the assurances that were given by Downing Street to the Scottish courts about applying for an extension. It will also put government law officers in a very uncomfortable position.”
Earlier on Saturday, in a day of high parliamentary drama, MPs withheld approval for Johnson’s new Brexit deal until legislation on the UK’s withdrawal has been debated and passed through parliament. The result was announced as an estimated one million people marched on Parliament Square to demand a second referendum as a way to break the three-year Brexit deadlock.
As the news of Johnson’s latest, and arguably most crushing, defeat was broadcast to the marchers, a huge roar went up from those who had travelled from all over the country to take part in the protest. Supporters of a second referendum now plan to table an amendment to the Withdrawal Agreement Bill, which will have its second reading in the Commons on Tuesday, to make approval of any deal conditional on another public vote.
Immediately after the vote Johnson said he was “not daunted or dismayed” by the defeat but would push on with the bill in order “get Brexit done” by 31 October.
Pre-empting questions about whether he would comply with the Benn act Johnson chose his words carefully saying: “I will not negotiate a delay with the EU, and neither does the law compel me to do so.”
The Labour leader, Jeremy Corbyn, told the Commons: “The prime minister must now comply with the law. He can no longer use the threat of a no-deal crash-out to blackmail MPs to support his sell-out deal.”
The vote was swung by a decision by the 10 DUP MPs, who have propped up the Tory administration since the 2017 general election, to vote for the amendment demanding approval of his deal be withheld.
MPs said the DUP only decided to vote in favour of the amendment tabled by Oliver Letwin, rather than abstain, one minute before the doors of the voting lobbies were shut.
Ten former Conservative MPs, including the former cabinet ministers Philip Hammond and David Gauke, supported the amendment. Six Labour MPs rebelled against the party line to vote against the amendment: Kevin Barron, Caroline Flint, Ronnie Campbell, Kate Hoey, Jim Fitzpatrick and John Mann.
Another three abstained: Melanie Onn, Rosie Cooper and Sarah Champion.
After the vote, the leader of the house, Jacob Rees-Mogg, said the government would attempt to hold another “meaningful vote” on the Johnson deal tomorrow in an attempt to seize back the initiative, though the Speaker, John Bercow, suggested that if the purpose was to override Saturday’s vote then he might not allow it. Saying he would reflect over the weekend on what to do, Bercow described the move as “curious” and said pointedly: “The government is not the arbiter of what is orderly.”
Guy Verhofstadt, the European parliament’s Brexit coordinator, tweeted on Saturday that it would “consider the outcome of today’s vote for the Letwin amendment on Monday”. He appeared to applaud those who had marched in favour of another referendum adding: “Whatever happens next, the marches outside the parliament show just how important a close EU-UK future relationship is.”
Under the terms of the Benn act any extension granted by the EU will end as soon as a Brexit deal has passed through the Commons and Lords.
There are signs that the passage of the Withdrawal Agreement Bill will be difficult and lengthy, with some MPs even predicting it could be voted down. MPs opposed to the Johnson deal and those in favour of a second referendum are expected to table numerous amendments, meaning it may not pass by 31 October.
Johnson has insisted numerous times that he will not ask for an extension to Brexit under any circumstances. Last month he said he would rather “be dead in a ditch” than do so.
On Saturday evening there was speculation that the DUP – which came out strongly against Johnson’s deal because it establishes a customs border in the Irish Sea, and deprives it of a veto over future arrangements for Northern Ireland – might come round to the idea of a second referendum.
After spelling out the reasons why his party rejected the Johnson deal, the party’s Brexit spokesman Sammy Wilson told MPs that the DUP would do everything it could during the passage of the withdrawal agreement bill to protect Northern Irish interests while the party leader at Westminster Nigel Dodds said it would scrutinise all amendments very closely.
“We would be failing in our duty if we do not use every strategy which is available to try to get guarantees, changes, alterations which will safeguard the interests of the United Kingdom,” Wilson told the Commons.
Johnson had described his Brexit plan, approved on Thursday by EU leaders, as “a great prospect and a great deal” and urged MPs to vote for it. “It is my judgment we have reached the best possible solution,” he said.
The public are evenly divided on whether there should be another referendum, according to the latest Opinium/Observer poll. Some 42% think there should be another public vote, while 43% disagree.