Boris Johnson to face fresh legal challenge if he tries to bypass law blocking no-deal Brexit

‘If it is necessary for it to be challenged, then it will be challenged’, says former cabinet minister

Boris Johnson would face a fresh legal challenge if he tries to use a legal loophole to bypass a law ordering him to delay Brexit, a former Tory cabinet minister has said.

David Gauke, the ex-justice secretary, warned that any attempt to sidestep the Benn Act – which aims to stop a no-deal Brexit on 31 October – was doomed to failure and would result in a damaging court battle.

His comments came after Sir John Major said the prime minister could look to circumvent the law using privy council privileges, which he denounced as a piece of “political chicanery that no one should ever forgive or forget”.

Mr Johnson remains bullish about his pledge to take the UK out of the EU on 31 October, with or without a deal, and has attracted outrage from MPs for dubbing the law the “Surrender Act”.

Sir John, a former Tory prime minister, raised fears Mr Johnson could issue an order to suspend the Benn Act until after exit day using privy council powers – which would remove the need for involvement from the Queen or parliament.

Mr Gauke, who lost the Tory whip for voting against a no-deal Brexit, said: “If it does go down this route it is likely to fail and it will be taken to court.

“I think the overwhelming legal consensus is that the courts will declare that the Benn Act is effective and the government will be forced to comply with it.

“I do hope that the government is not going to attempt to pursue a vexatious legal claim in an attempt to avoid its legal responsibilities.

“I think the overwhelming view of the legal profession is that the Benn Act is effective and that if it hasn’t got a deal – or if parliament hasn’t supported leaving without a deal by 19 October – then the government will be required to seek an extension.”

Asked if he would personally bring the case, Mr Gauke told the Today programme: “I don’t know whether it would be me personally but if it is necessary for it to be challenged, then it will be challenged.”

The MP said he believed the Benn Act was “watertight” but MPs would be prepared to act if the government tried to find a way to overturn it in parliament.

International development secretary Alok Sharma refused to answer repeated questions on how the government could abide by the Benn Act and still leave the EU on 31 October.

He said: “I’m not going to set out discussions that have occurred in the privacy of cabinet.

“We are absolutely going to comply with the law, we are working incredibly hard to get a deal and we will be leaving on 31 October.”

The prime minister’s spokesperson later distanced No 10 from the extraordinary suggestion saying: “I do not recognise that at all.”

A senior government source went further, describing the idea as “total cobblers” – suggesting Downing Street was as bemused by Sir John’s warning as everyone else.

Amid a row over the prime minister’s use of inflammatory language, Mr Sharma said it was right to law the bill as the “Surrender Act”.

He said: “If you look at the fundamentals of what that bill does, it does surrender our ability to have effective discussions with the European Union and it does surrender our ability to be able to walk away from the table if that is what happens.

“We are surrendering our ability to negotiate effectively with the EU.

“If you were going into a negotiation with both hands tied behind your back, would you not think it somehow a form of capitulation?”