The recently-passed European Union (Withdrawal) (No. 2) Act 2019 (a.k.a. the Benn Act or the Surrender Act, depending on one's politics) seems to be unprecedented in that it creates a legal obligation for a single Crown subject—the Prime Minister. Specifically, § 1(4) states that:

The Prime Minister must seek to obtain from the European Council an extension of the period under Article 50(3) of the Treaty on European Union ending at 11.00pm on 31 October 2019 by sending to the President of the European Council a letter in the form set out in the Schedule to this Act requesting an extension of that period to 11.00pm on 31 January 2020 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.

However, usually legislation includes details of the punishment to be administered to those to break the law. For example, § 1 of the Offences Against the Person Act 1861 states that ‘Whosoever shall be convicted of Murder shall suffer Death as a Felon.’

This Act doesn't mention any punishment, however. What, then, happens to the Prime Minister if he refuses to seek an extension (which seems to be Johnson's plan) and thereby breaks the law? Is there some sort of ‘default’ punishment for lawbreaking in England & Wales that is used when no more-specific punishment is stated?

  • 3
    I don't think it's unprecedented; AFAIK it's very common for Acts of Parliament to give orders to the Government in the form "The Prime Minister must", "The Secretary of State shall", etc. It's a duty of the office, not of a particular Crown subject. It doesn't say "Boris Johnson must...", and if he doesn't want to do it, he can always resign. Sep 26, 2019 at 12:14
  • I'll leave the answer about "punishment" to an expert (my guess is "anyone harmed can sue the Government for damages or an injunction"), but realistically, I think the immediate consequence of failure to comply in this case is that Parliament would vote no confidence. Sep 26, 2019 at 12:14
  • @NateEldredge By 11.00pm on 31 October 2019 though, they will only have an hour until Britain leaves the EU as that's the legal default. Although I guess that's probably what Johnson is banking on at the moment.
    – 08915bfe02
    Sep 26, 2019 at 15:15
  • Side-question: the content of the letter is not specified. Presumably nothing therefore prohibits Johnson from sending a letter requesting an extension ‘if you think you're hard enough’, or in some other antagonistic manner unlikely to be agreed to, whilst still complying with the law?
    – 08915bfe02
    Sep 26, 2019 at 17:04
  • § 1(3) of the act says that the PM must send the letter by 19 October. Also, the content of the letter is specified, word for word, in the Schedule. Sep 26, 2019 at 18:18

3 Answers 3


The office of the prime minister must apply for an extension. Technically this could be anyone authorised by Boris Johnson, or himself.

Anyway, if the prime minister fails to follow a direct instruction from parliament, especially one enshrined in an act of parliament, he may face a vote of no confidence, or more realistically, be pressured to resign.

In the UK, we don't use the terminology writ of mandamus, we call them Mandatory Orders. But this is unlikely to happen even if Boris Johnson refuses to follow the act. A vote of no confidence is the more appropriate route.


A writ of Mandamus

A person with standing (say an MP), can apply to the court for a writ of mandamus. This is an order from the court requiring the person to do the thing they are legally obliged to do.

Failure to follow a court order is contempt which in England and Wakes is punishable by imprisonment for up to 2 years.


The lawyer and commentator David Allen Green suggests the possibilities of a criminal offence of Misconduct in public office, which has a maximum sentence of life imprisonment, and a tort of misfeasance in public office where if Johnson and other public servants were held to be tortfeasors they would be liable for damages due to the losses caused.




Certainly if Johnson refused then a court order would be urgently sought and it would likely be granted. If he disobeyed the court order that would be a contempt of court. The maximum sentence for contempt is two years in prison and/or an unlimited fine.


Whether there would be such a prosecution we can only speculate.

Note that if the PM refuses then civil servants can act in his stead to do what the law requires of his office.

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