On 11 August I wrote:
Rebel Tory MPs did acquiesce in Bojo becoming PM so there is now a loose canon in 10 Downing Street.
But the Brexit saga will still be effectively over before October 17. See my previous articles in this series on Brexit:
I said “before” October 17 expecting that any attempt would have to completed at least a week or so before the European Council (EUCO) summit of 17-18 October.
Actually the serious attempt to end Brexit only began a week ago and and continued with an all night negotiating session so the saga ended only on the morning of the first EUCO session on October 17. Result is that people won’t understand that Brexit has effectively been prevented for quite a while as there will still be lots of sound and fury, signifying nothing.
But here’s my view of the most likely sequence towards the finish (which can still have many variations) now that the final result is inevitable – No Brexit. Sorry for the incoherent rambling. I don’t have time to write a shorter article about what is likely to happen in the next few days.
It is quite complicated because the tactics followed by Bojo’s advisor, Dominic Cummings are unusually complicated, also known as Baldrick’s cunning plans:
1. “Bojo bounce” may continue rising in the polls to reach almost the abysmal level achieved by PM May at the 2017 general election. But this will be because of former Tory voters returning from both Brexit party and Libdems as a response to this “triumph”. Bojo has already got most of them back so it will soon peak.
Latest YouGov poll for October 14-15 for GB (excluding NI) is even higher “peak Bojo” (compared with less than a week ago).
Cons 37% up 1 from Libdems 18% and up 1 from Brexit 11%. Greens 5% down 1 to Libdems. Unchanged Labour 22%, SNP 4%, Plaid Cymru 1% and Other 1% (up UKIP down Change UK). Total 99% (rounded). Weighted by likelihood to vote.
As a result Tory Brexiteers are quite convinced they are winning the battle in the UK and their fight is with the EU on behalf of the British people who are being held captive in the EU with the assistance of the UK Parliament, Courts and establishment. In fact most people actually don’t want Brexit and it is that opposition, not the EU has imposed the three year delay since a narrow majority voted for Brexit in 2016.
2. The EU Parliament might ratify the new Withdrawal Agreement (WA) at same accelerated pace as the draft text was approved by negotiators in the last week. This would deliver Brexit before the current deadline of October 31 just as Bojo promised “do or die”, “deal or no deal”. European Commission (EC) has already agreed that EU will not be responsible for any delay. EC President Juncker has confirmed that and EUCO President Tusk has not disputed it.
This has nothing to do with whether EUCO will agree to an extension request from UK. UK media think “Parliament” means Westminster and that the EU imposes delays so they have reported EC President Juncker as warning that there will be no extension of the deadline so the UK would crash out with no transitional arrangements unless it agrees to Bojo’s deal. For Juncker “Parliament” sits in Strasburg and has not imposed delays and will not impose delays.
The eagerness with which Brexiteers are clutching at straws is highlighted by this article explaining that Juncker has done Bojo an enormous favour by “ruling out” an extension. He was actually ruling out the EU Parliament delaying ratification (even though the Brexit party will oppose ratification and is the largest block of UK members of the European Parliament). Juncker specifically said he is not in charge of Westminster (despite Brexiteer claims that the EU dominates the UK).
Actually neither Juncker nor Tusk can decide how quickly the European Parliament might work. Its Brexit coordinator is a Libdem and has said it “will only start its work from the moment that we are 100% sure that the British Parliament will adopt this deal”.
Translation into 23 official languages can be done very rapidly and legal experts can quickly decide whether they agree with the Republic of Ireland that Bojo has essentially accepted the original terms offered by the EU with Northern Ireland (NI) inside the single market and a customs border between NI and GB. Minor corrections to the legal texts can be made easily in that time.
Tusk confirms that what made the deal possible was Bojo suddenly agreeing to what both Bojo and May said no UK PM could agree to – a customs border between GB and NI so as to avoid a customs border between the two parts of Ireland. Instead of the WA accepted by May which had a temporary fallback backstop to preserve an open border between NI and the Republic, Bojo has agreed to the same arrangement being permanent for as long as NI wants to remain in the single european market and customs union while GB diverges in a very hard Brexit on the other side of a customs border from NI (or perhaps just England and Wales if Scotland decides to leave the UK as a result). Essentially the backstop gets easily renewed by a simple majority vote in the NI legislature every four years until there is a majority to actually rejoin the EU as part of a united Ireland (possibly an autonomous part).
3. Until the deal was published on 17 October, only four Cabinet Minister’s had seen it – Javid, Raab, Gove, Barclay and Cox. So we can be fairly sure the UK Parliament will not adopt a deal that was kept secret from it two days later in time to avoid an extension and enable the European Parliament to start work before its next session on 13 November. Bojo has 10 less DUP MPs and a couple of dozen less Tory MPs than May did.
Previous iterations of Baldrick’s cunning plans openly threatened to crash out with No Deal by pretending the Tory hard Brexiteer faction, European Research Group (ERG) had agreed on a new WA in order to avoid an extension and then failing to actually ratify before the unextended deadline. The threat was empty but highly effective in raising the level of hostility and distrust as intended. If both sides have ratified before the end of the extension they can agree on an earlier exit date just as with previous extensions. There is no reason for UK Parliament to be in same rush as EU as they are not seeking to avoid “blame” for delay. Nor is there any good reason for MPs to immediately agree on a referendum rather than simply insisting on an extension to consider the terms properly. Labour will try to defeat Bojo’s deal outright and can switch to a referendum on it at any later stage if the legislation would otherwise go through to accept it.
4. There will be little or no damage to Bojo from the three months extension requested despite his “do or die” proclamations. Even Brexit party leader Nigel Farage has said it would be better to continue negotiations than rush anything through, so the sarcasm about it will just be background noise.
5. Having had its negotiators stay up all night to cooperate with Bojo’s last minute claim he can get a deal through UK Parliament where May failed, and can do it by 31 October, EU will carefully consider Bojo’s request two days later, by end of this Saturday 19 October, for a three months n extension to 31 January, that will be required by UK law unless the House endorses an unfinalized text that was kept secret from it on the same day.
6. EU’s attention will have been drawn (though not for the first time) to the fact that what Bojo had agreed to and is now requesting an extension to achieve, was explicitly prohibited by UK law:
Taxation (Cross-border Trade) Act 2018
55 Single United Kingdom customs territory
(1)It shall be unlawful for Her Majesty’s Government to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain.
(2)For the purposes of this section “customs territory” shall have the same meaning as in the General Agreement on Tariffs and Trade 1947 as amended.
That definition is in Article XXIV item 2:
“2.For the purposes of this Agreement a customs territory shall be
understood to mean any territory with respect to which separate tariffs or
other regulations of commerce are maintained for a substantial part of the
trade of such territory with other territories.”
The main point of Bojo’s deal is to achieve that unlawful purpose by imposing separate customs tariffs and other regulations of commerce on a substantial part of the trade of the territory of GB with the territory of NI.
NI buys six times more goods from GB than it buys from southern Ireland.
Any legislation to repeal this could easily be amended to require confirmation by a referendum in NI. Voters in NI voted for the UK to remain in EU, as did Scotland. NI voters certainly won’t vote for a customs border with either the south or GB.
7. EU will also be aware that the reason Bojo has been unable to persuade the UK Parliament is that he himself supported this barrier to any such agreement at a conference of the NI Democratic Unionist Party:
“…we would be damaging the fabric of the Union with
regulatory checks and even customs controls between GB
and NI – on top of those extra regulatory checks down the
Irish Sea that are already envisaged in the Withdrawal
No British Conservative government could or should sign up
to anything of the kind…”
8. Hopefully EU will conclude that the UK needs at least a year to get its act together before wasting their time on Brexit again. At any rate they won’t believe it could possibly be sorted out by the end of January and will offer an extension until at least June, which is sufficient for both a referendum and a general election in the hope of a government with a serious policy emerging. It wasn’t the EU that imposed yet another delay.
9. Unless a majority of the House of Commons wants a No Deal Brexit, the House will not decide to refuse the longer extension within two days of it being offered. The law then requires that Bojo accept the extension. At this point, before the end of this month, people should start becoming aware that Brexit is not going to happen and the Bojo bounce should begin its long descent, which will become a plummet. Bojo won’t resign as leader of the Tory party or PM of the Tory government as none of this will be a surprise.
10. If Bojo refuses to comply a Court will simply order somebody else to agree on behalf of the PM. The inner Court of Sessions has already scheduled a sitting for October 21 to save paperwork in case it happens by then.
11. If Bojo remains PM he will be a complete lame duck and will end up wishing he had stuck to “do or die”. What he has achieved is a major step towards ending Brexit by eliminating both May’s WA and No Deal, leaving only a pointless soft Brexit In Name Only (BRINO) or No Brexit at all. All that remains is to eliminate his own variation that made May’s WA much worse and unacceptable to DUP as well as to Tories that did not want such a hard Brexit for GB.
12. If Bojo resigns on behalf of the government the palace will have to commission the leader of the opposition to form a government. Nobody else could plausibly form a government with both the Labour and Tory parties in opposition.
13. Bojo could then plausibly hope to get an early general election by defeating Corbyn in a Vote of No Confidence (VoNC) under the Fixed-term Parliament Act (FtPA). But even if that succeeded it would only result in a general election if there was no Vote of Confidence (VoC) within 14 days. The House can replace the government at any time and could agree on another PM to head a temporary minority Labour government within the 14 days. There is also another reason for Bojo not to resign, which I will come to later.
14. Whatever happens, whether Bojo becomes a lame duck or is replaced by Corbyn or by some other PM, whoever is in government will have no working majority, no way to deliver Brexit and no way to escape. There is only one other way to get a general election since the power of the Crown to dissolve Parliament was removed by the FtPA. That is by agreement from both the Labour and Tory parties for a 2/3 majority. The Bojo bounce will either continue a slow descent or start to plummet, since Bojo and the Tory party obviously cannot deliver anything promised.
15. The House will proceed to legislate for a Final Say referendum to be followed promptly by a general election before the new Brexit deadline. If necessary it could force the necessary funding by tying it to other Supply. Since the EU has actually agreed to Bojo’s variation, a simple binary self-executing choice can easily be agreed on: Yes automatically ratifies the deal. No automatically prohibits it. The Libdems might try to insist on Remain as an option, but that would only help get Brexit party voters to support Bojo’s variation of Leave.
16. Bojo will lead the Leave campaign whether he is PM or leader of the opposition. He will sideline the Brexit party even more if his posturing as champion of the people against the establishment, big business, Courts and Parliament is not undermined by remaining PM as well being a Tory toff from Eton and Oxford. But Leave cannot win against both Remain supporters and Brexit party voters.
17. The best Bojo can do is to lead that campaign to glorious defeat since there never was a majority for a viable hard Brexit, let alone for one that breaks up the UK. That is still a plausible Tory plan since it would save some seats at the subsequent general election by sidelining the Brexit party.
18. Hopefully the Tory rebels will hold out for another referendum for Proportional Representation (PR) to be held at the same time. They could win that by simply keeping any government that allows legislation for PR in office by opposing any VoNC against it while blocking anything else happening. Eventually other Tories might also realise that they will save more seats from the Brexit debacle under PR than under the present unviable electoral system that resulted in their appeasement of the Brexit party. So far there is no sign of that, but I am still hopeful of more interest in PR as the true extent of the debacle sinks in and the Tory vote plummets.
19. Either way, it seems likely the two party system will not fully recover in one general election and the result will be another minority government. Most likely Labour supported by SNP and Libdems.
20. A Labour government could still drag out Brexit a little longer by keeping its manifesto promise to negotiate a soft Brexit within 3 months and put it to the people in another referendum with Remain as the other option. Again that could be self-executing. Even in unlikely even of Brexit party supporting Leave rather than denouncing Bojo’s deal as a BRINO, Remain would probably win. But it doesn’t matter much since staying in the EEA and Customs Union is indeed a BRINO that does no real damage and allows the EU to accelerate “ever deeper union” with the UK still part of the same single European market but no longer able to obstruct until it wants voting rights again.
Obviously many variations are possible but fundamentally Brexit was finished off by the EU agreeing to a deal that can easily be defeated at a referendum.
My assumption is that Bojo’s aim is to avoid Tory party extinction and what has been done to achieve that probably works better than other options. Their previous strategy was headed for extinction. Also I assume that threats of leaving with No Deal were never serious while others have been impressed by the energy put into those threats compared with the half-hearted bleating that “No Deal is better than a bad deal” from the previous government.
Others never took the danger of extinction seriously and have been mesmerized by what appears to be a strategy for gaining a Tory landslide majority that almost worked. But no serious party tries to win by completely absurd policies that it knows it cannot deliver in the hope that the opposition will agree to an election while it is ahead because the absurdities have not yet imploded.
Although I do believe many Tory supporters really are that stupid I don’t believe that was Baldrick’s cunning plan.
But curiously Downing Street does seem to have got carried away at one point and actually hoped they could trick the opposition into voting for a general election at a time when the promises had not imploded.
Bojo made two attempts to get a 2/3 majority for an election just before prorogation. Corbyn had been demanding a general election but refused (by abstaining) on the grounds that Bojo had threatened to set the date in November and leave with No Deal on 31 October. Nevertheless, Corbyn still blustered that he would move a VoNC as soon as the Libdems and Tory rebels agreed to support it (which they didn’t). The second attempt was after letting the Bill that ultimately forced the extension that will end Brexit through the House of Lords and Royal Assent, so as to end Corbyn’s excuse. Setting a date in November would not have worked since the law now required that the UK apply for an extension rather than exit with No Deal on 31 October as Bojo threatened. Corbyn and the House majority simply replied that they would wait until the extension was actually implemented, since they did not trust Bojo to even comply with the law as he had said he would rather “die in a ditch” than do so.
Baldrick’s cunning plan was to whip the Tory party in support of a VoNC against their own government and prorogue immediately after winning that vote so that no replacement government could win a VoC within 14 days.
If the opposition had not been prepared and disciplined that could have worked. Unless nearly everybody who had no confidence in the government actually voted to support the government, the VoNC would be carried by a simple majority consisting mainly of people who supported the government pretending to have no confidence in it in order to frustrate the purposes of the Fixed-term Parliaments Act.
Having been defeated by a Tory VoNC Bojo would be able to recommend a Tory MP as replacement PM most likely to command the confidence of the House. The palace is desperate to avoid exercising its independent political discretion since Charles III will eventually be King. It would follow the Cabinet manual and accept the recommendation. After all the issue would ultimately be resolved by the people at a general election, which used to be the only real reserve power the Crown had, until it was removed by the FtPA.
The new Tory PM would not cancel the prorogation and so the 14 days would expire and a general election would be held on whatever date Bojo wanted. It would be interesting to know whether this booby-trap was intentionally placed in the FtPA when the Cameron government agreed to it as part of its coalition with the Libdems.
A date in November would make Bojo’s threats of No Deal look credible. Especially if this had been done before the Royal assent to the extension legislation.
Exactly the same agreement that the EU rushed through in a week could have been reached then and it really would have looked as though Bojo had triumphed by threatening No Deal. He could have won the general election.
But the opposition was prepared and disciplined. That was shown by the first attempt to get 2/3. There was no way to get a simple majority even if the Libdems had supported a Tory whip for a VoNC to get a GE at a time good for them even though it “accidentally” would have also helped Bojo deliver Brexit. The second attempt was just point scoring so that Bojo could call Corbyn a chlorinated chicken big girl’s blouse coward for refusing an election. There was no longer any hope of the plan succeeding so no point refusing assent or wasting a weekend trying to prevent the extension legislation going through the Lords instead of just scoring a point. There is more to tell about that but I’ll leave it for later.
Interestingly this whole episode has not been discussed publicly although the opposition must have been aware of it. They have not yet followed up on demands for all documents related to what amounts to an attempted coup d’etat. Perhaps things have just been moving too fast to explain the complexities. My most recent article in this series was on September 3, and I hoped then that there would be a break from Brexit for six weeks until the House resumed sitting in mid-October. But “events, dear boy, events” intervened and I certainly haven’t had time to write about it while keeping up with events.
Among the events were the three court cases arising from prorogation. Nothing was said about what it was really about in any of the three judgments. But the final judgment from the Supreme Court was quite extraordinary and suggests that all 11 were unanimously quite spooked by what they presumably had understood was going on.
The English High Court made a rather routine ruling that prorogation was not justiciable. That follows precedent but no longer corresponds to the actual modern situation with the evolution of judicial review and the withering of the Crowned republic. They even claimed that the seventeenth century reliance on the Crown’s need for Supply and annual renewal of the legislation maintaining disciplined armed forces was still sufficient protection from abuse of prorogation. They were simply leaving it up to the Supreme Court to pronounce on the modern view. But they clearly were not alarmed by the Pantomine outrage.
The Scottish Inner Court of Sessions reached the astonishing conclusion that prorogation is unlawful if its purpose is to stymie Parliament. The factual conclusion as to the obvious purpose.is uncontroversial. By then they may have also known what was really going on.
But the legal analysis was absurd. Prorogation is almost a synonym for “stymie Parliament” – that was the historical point of it – to avoid Executive accountability to Parliament during an emergency. A long prorogation was last used for that purpose at the outbreak of the Great Depression when the Labour government split. Its replacement did not have the confidence of the House and there was fear of holding an immediate general election. The Crown considered that an adequate reason for prorogation.
In addition the Scottish judgment decided that since the advice to prorogue was unlawful the prorogation itself was null and of no effect. It could have simply said the prorogation was ended forthwith. But that would not have been a foundation for undoing any side effects of prorogation as would have been necessary if for example Baldrick’s cunning plan had worked and as a side effect a general election date had been set after the expiry of 14 days from a VoNC.
The Supreme Court decided:
1. Prorogation, like pretty well any other prerogative power these days, is justiciable. That is uncontroversial.
2. “For present purposes, the relevant limit on the power to prorogue is this: that a decision to prorogue (or advise the monarch to prorogue) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In judging any justification which might be put forward, the court must of course be sensitive to the responsibilities and experience of the Prime Minister and proceed with appropriate caution.”
That sounds uncontroversial but it effectively means the Supreme Court has appointed itself Regent to decide on behalf of an incapacitated monarchy on how to exercise its few remaining reserve powers in which it is not bound by Advice from the Ministry. This makes sense because the palace is in fact no longer capable of taking a discretionary political decision as to whether a request from the government has “reasonable justification”. The palace just does what it is told. Somebody has to take such decisions or the PM of the UK has the powers of an absolute monarch, unlike the Chief Minister’s in any other country that has inherited the Westminster system or any democratic republic with an elected head of state.
3. “The third question, therefore, is whether this prorogation did have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.”
In fact Parliament had explicitly legislated, in the “Northern Ireland (Executive Formation etc) Act 2019” to specify the precise dates on which it could not be prorogued so that it could legislate regarding Brexit or replace the government. It explicitly left a gap for the summer recess and the government prorogued during precisely that gap.
The outrage about the government proroging then was purely Pantomine. I explained details of that on August 29:
The Parliament adequately demonstrated that it was not frustrated or prevented from carrying out its constitutional functions by actually legislating to ensure an extension of the Brexit date during the first of the five day intervals it had specified. Then it did nothing at all when it was dragged back from its conference recess by the Supreme Court decision.
The Supreme Court simply ignored the facts presented in open court. I assume it knew of the other facts about an attempt to seize power by frustrating the FtPA.
4. “The next and final question, therefore, is what the legal effect of that finding is and therefore what remedies the Court should grant…. The prorogation was also void and of no effect. Parliament has not been prorogued.”
So if anybody tries it again and there are side effects those side effects can easily be nullified.
This judgment has had a possible effect on the outcome despite the sheer irrelevance of the sittings of the Schrodinger’s Parliament “that has not been prorogued” in which it merely continued to reject anything proposed by the government while not replacing the government nor agreeing to a general election.
Prior to that judgment it would be reasonably safe to expect that Bojo would resign as the optimum response in item 13 above. But now, what is widely assumed to be a judgment taking away the government’s power to prorogue actually makes it less likely that Bojo could risk resigning because it is now more likely that prorogation could be used for the explicit purpose of temporarily avoiding Executive accountability to Parliament.
What if Corbyn was not a chlorinated chicken big girl’s blouse? As soon as he was appointed PM he could immediately prorogue briefly to prepare a Ministry and a Queen’s speech to outline his legislative program as usual. While Parliament was prorogued the Privy Council could seek a declaration from the Supreme Court as to whether a longer prorogation of a couple of months would be lawful with the following “reasonable justification”.
1. There is real doubt whether the new PM commissioned by the palace on the recommendation of the former PM will be able to command the confidence of the House.
2. The UK faces a major national crisis over Brexit which could destroy the Union and has dragged on for three years.
3. The majority in the House is agreed on a policy of resolving that crisis by giving the people a Final Say on Brexit at a referendum followed promptly by a general election.
4. But the majority of the House is not agreed on anything else much and no government has been able to pass significant legislation for a long time. Disputes over who should head the government could result in a general election being forced contrary to the purpose of the FtPA.
5. The crisis will be resolved faster if the government is able to prepare the legislation for a referendum during the period of prorogation and then put it to Parliament and then hold an early general election approved by a 2/3 majority as intended by the FtPA.
6. Otherwise there is a danger of a general election being held contrary to the purpose of the FtPA in ordeer to prevent Brexit being resolved by the people and likely to produce another Parliament that will remain deadlocked and unable to resolve it.
I wonder what brooch the Chief Justice would be wearing when giving judgment on that. Last time it was a spider reminding people of the saying:
“Oh what a tangled web we weave when first we practice to deceive”.