September 2, 2019
BREXIT UPDATE 42: THE STORM BREAKS
In Brexit Update 41, I described the rejection of Corbyn’s masterplan – the only sure route to preventing Boris Johnson from taking the UK out of the EU without a deal on October 31 – by rebel Tory MPs and the leader of the Liberal Democrats, Jo Swinson. As a result, Corbyn agreed to prioritise the risky legislative route –though it is important to note that he has not ruled out tabling a vote of no confidence at some point. Last Tuesday, (August 27) he hosted a meeting of opposition leaders and MPs in his parliamentary office. The consensus that emerged from that meeting was that MPs would work together to create legislation to block No Deal. It is understood that at the meeting a plan was discussed to gain more time by seeking to cancel the parliamentary recess that occurs every September for about four weeks – last year it lasted from September 13 to October 9 — for the party conferences.
But the very next day, Wednesday, August 28, Johnson made a highly dramatic counter-move. He took the nuclear option – which he has always refused to rule out — of proroguing Parliament by declaring this session of Parliament at an end. In a letter to all MPs, he wrote:
“This morning I spoke to Her Majesty the Queen to request an end to the current parliamentary session in the second sitting week in September, before commencing the second session of this Parliament with a Queen’s Speech on Monday 14th October.”
His justifications for proroguing Parliament were a) that the current session has already lasted over two years (the last Queen’s Speech was in June 2017, after the snap election), making this the longest session of Parliament for nearly 400 years, since the English Civil War (the Long Parliament lasted 12 and a half years, from November 1640 to April 1653); b) that, as a new Prime Minister with a new Cabinet, he wants to set out in a Queen’s Speech (which is written by the Prime Minister, setting out his programme) “a new bold and ambitious domestic legislative agenda for the renewal of our country after Brexit”. Johnson goes on to say that, after the State Opening of Parliament and delivery of the Queen’s Speech on October 14, there will be debates on the Speech till October 21 and 22, when MPs will vote on it.
Parliament sits from Monday to Thursday and on some Fridays; so no debates take place at weekends and often not on Fridays either. The result of Johnson’s timetable is that before the prorogation there will be at most seven days – probably less, even as few as three or four — to debate and pass a bill that will stop No Deal; after the opening of the new session of Parliament on October 14 and the long debate on the Queen’s Speech, there will only be six days (at most) till the leaving date of October 31. An added obstacle is that, if the work on the bill has not been completed by the time of the prorogation of this current session of Parliament, any progress achieved cannot be carried through to the new session; after the prorogation, those seeking to prevent No Deal would need to start again from scratch. There had already been very little time to stop Johnson via the legislative route; he has now made the task (though still not impossible) a whole lot harder.
On the same day, August 28, that Johnson sent the letter to MPs, three members of the Privy Council, led by the arch-Brexiteer Jacob Rees-Mogg (who organised Johnson’s leadership campaign and is now the Leader of the House of Commons), travelled to Balmoral in Scotland, where the 93-year-old Queen was on her summer holiday, and gained her signature to an Order of Prorogation. It was impossible for the Queen to refuse; as a ceremonial figurehead, her role is to follow the advice given to her by her chief ministers. The Order of Prorogation runs:
“It is this day ordered by Her Majesty in Council that the Parliament be prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019, to be then holden for the despatch of divers urgent and important affairs, and that the Right Honourable the Lord High Chancellor of Great Britain do cause a Commission to be prepared and issued in the usual manner for proroguing the Parliament accordingly.”
A Prime Minister has a legal and constitutional right to end a session of Parliament and to decide on the length of the prorogation. But usually the prorogation only lasts for a few days; in recent times, the longest prorogation has been about three weeks. So to prorogue Parliament for five weeks is highly unusual. And the prorogation of Parliament by an unelected Prime Minister, at a time of national crisis, for the purpose of forcing through a No Deal Brexit against the will of Parliament, is widely viewed in the UK as an affront to democracy. It is precisely Johnson’s cynical exploitation of constitutional conventions as a means for his own ends that is causing widespread outrage. As a Guardian editorial puts it: “Mr Johnson is hijacking powers symbolically vested in the crown and wielding them in aggression against his parliamentary opponents”. Over 1.6 million people have signed a petition calling for the prorogation to be revoked; and thousands have been protesting in cities across the UK.
It is not possible to mount a legal challenge against the Queen’s use of her royal prerogative. But three legal cases are pending – in the High Court in London, in the Court of Sessions in Scotland and in Belfast, in Northern Ireland — against the advice given her by her chief ministers in relation to the prorogation and against a No Deal Brexit. However, Jonathan Sumption, a former Supreme Court judge, has argued that the courts are unlikely to uphold these objections, since Johnson has not actually done anything illegal. He told a BBC interviewer on the BBC’s flagship news programme Newsnight that the prorogation is “politically shocking in a parliamentary democracy. Whether it is illegal or unconstitutional is a completely different question”, adding:
“What is wrong with this decision is not that it is beyond the powers of the government, but that it’s being done for a mistaken political motive….the courts are not there to decide what are good political reasons and what are bad political reasons. They are there to decide what’s lawful.”
As for the legislative route, the very tight timetable goes as follows: on Tuesday, opposition MPs will table a formal request for an emergency debate on a bill to prevent the UK leaving the EU without a deal on October 31. They will also try to take control of the order paper – ie the parliamentary timetable — with the help of the Speaker, John Bercow, who has called the prorogation a “constitutional outrage”. On Wednesday, the bill will need to pass through all its Commons stages in one day, to go to the House of Lords on Thursday. Parliament is not scheduled to sit this Friday. If the bill manages to pass the Lords on Thursday, it could receive Royal Assent on Monday and become law.
Back in early April, the Cooper-Letwin bill to prevent No Deal was passed by the Commons in one day, and then took two days to pass in the Lords and receive Royal Assent (see Brexit Update 23). The Cooper-Letwin bill only applied to the April 12 leaving date, not to any future Brexit deadlines. I wrote in Brexit Update 23:
“Opponents of the bill tried to obstruct its passing by the end of Wednesday [April 3] by tabling many complicated amendments and making lengthy, largely incomprehensible speeches in support of them — in a deliberate delaying process known as ‘filibustering’. However, in the end, the bill passed its third reading close to midnight by one vote: the Ayes: 313: the Noes: 312. Yesterday, (Thursday April 4), the bill went to the House of Lords for approval; but there was so much filibustering by Eurosceptic Lords during the debate that there was insufficient time for a vote; and the debate will be resumed on Monday.”
The Cooper-Letwin bill became law on Monday April 8 (after, in the course of that one day, being passed in the Lords, returned by the Lords to the Commons with amendments and passed again in the Commons and finally receiving Royal Assent at 11 pm that night — see Brexit Update 25); but the bill’s passing in the Commons by only one vote on Wednesday April 3 and the prolonged “filibustering” in the Lords demonstrates how risky the legislative route is likely to be this week.
Moreover, the Cooper-Letwin bill merely reiterated the process that Theresa May had already accepted – she had already agreed to an extension of the leaving date; as I wrote in Brexit Update 23, the bill was intended only to ensure that she stuck to her word. The Maybot was genuinely reluctant to take the UK out of the EU without a deal. But in Johnson the opposition is dealing with a hard-right Prime Minister – or at least a Prime Minister who is acting on behalf of the hard-right, who put him in power – who is prepared to exploit that power with utter ruthlessness and shamelessness to take the UK out of the EU “come what may, do or die”, on October 31.
In his letter to MPs, Johnson still keeps up the pretence that he wants a deal and that the only way to reach it is to force the EU to cave into his demands by convincing them that he really is prepared to take the UK out without a deal on October 31. But the EU’s chief negotiator, Michel Barnier, reiterated yesterday (Sunday September 1) that he will not scrap the backstop; and Johnson has failed to explain how he can reach a deal in less than two months, by October 17, when the EU holds its final summit on Brexit before October 31.
Michael Gove, the Cabinet Minister in charge of preparations for a No Deal Brexit, caused outrage yesterday (Sunday September 1) by refusing to confirm that the government will abide by the new bill if it becomes law. And it has been reported in all the media today that Johnson is threatening all Conservative MPs with losing the party whip – effectively being expelled from the party – and not being able ever again to stand for election as Conservative MPs if they vote in favour of the bill.
Finally, there has been yet another dramatic development this afternoon (Monday, September 2) at 6pm. It was announced that Johnson, after holding an urgent Cabinet meeting, would be making a statement at that time outside 10, Downing Street. There was widespread media speculation that Johnson would be announcing a snap election.
However, the statement, on the surface, reiterated Johnson’s unsubstantiated claim that he is close to achieving a deal and that this deal can only be achieved if the EU leaders become convinced that the UK government is serious in saying it is prepared to take the UK out of the EU without one. Johnson therefore called on all MPs not to vote for the opposition bill this week. He insisted that the purpose of the Queen’s Speech is to set out his agenda to renew the country, emphasising the recent pledges he has made, such as the recruitment of 20,000 police officers, 35 billion pounds promised to the National Health Service, billions being poured into education.
These pledges, are however, widely viewed as election promises. And Johnson’s statement contained a veiled threat to Tory MPs that, if the bill passes, he will call an immediate snap election. He said: “Let’s let our negotiators get on with their work without this Sword of Damocles [ie the threat of a bill forcing an extension] over their necks – and without an election. I don’t want an election.” The implication is that, if the bill passes, there will be an election. It would be surprising, however, if Johnson called an election for a date before October 31, because of the threat to the Tories from Nigel Farage’s Brexit Party if the UK is still in the EU on election day.
According to a government source, if Parliament passes the first stage of the bill on Tuesday, allowing the anti-No-Deal alliance to take control of parliamentary business, Johnson will call a snap election, with a date of October 14. But the Fixed-Term Parliament Act means that he will need a two-thirds majority in order to implement this. So, in the event that the bill passes its first stage on Tuesday, Parliament would vote on the snap election on Wednesday.
There is speculation in the media that Johnson might set an election date for before October 31 as a trick; as the election date loomed, he would — again exploiting the royal prerogative — change the date to early November. There is a rule that Parliament must be dissolved 25 days before an election day (see Brexit Update 40) – so the UK would leave the EU without a deal on October 31, while Parliament is not sitting.
Johnson insisted in today’s statement that “there are no circumstances” in which he would ever “ask Brussels to delay”. But the bill aims at doing just that. The next Brexit Update will discuss the outcome of the dramatic showdown between government and Parliament that is on the brink of taking place this week.
 For the full letter:
 The London case has been initiated by Gina Miller, a businesswoman famous in the UK for initiating a case in 2016 that led to a legal decision – upheld by the UK’s Supreme Court, the highest court in the land, after the government appealed against the ruling — that meant that Theresa May’s government could not trigger Article 50 (i.e. set the process of exiting the EU going) without the move being first voted for by Parliament. https://www.bbc.co.uk/news/uk-politics-37861888
The 2016 Gina Miller case began the whole struggle over Brexit between government and parliament that has been going on for the past three years; it provided a precedent for the inclusion (after complex parliamentary amendments and negotiations between Remainer Tory MPs and the government) in the June 2018 EU Withdrawal Act of a clause stipulating that no Brexit deal can be ratified unless it has first been passed by Parliament. (See Brexit Update 20).
Gina Miller has now launched a case against the prorogation that will receive a preliminary hearing at the High Court in London next Thursday (September 5) and, if this is decided on Thursday, a full hearing on Friday; she has been joined in her action by the former Tory Prime Minister John Major and by the Shadow Attorney General, Shami Chakrabarti. https://www.bbc.co.uk/news/uk-politics-49523055
In Scotland, a full hearing of the case launched by Remainer MPs to prevent No Deal (see Brexit Update 40) has been fast-forwarded from Friday, September 6 to Tuesday, September 3; though, significantly, an application for an immediate emergency injunction requiring Johnson to suspend the prorogation has been rejected by a Scottish judge. https://www.theguardian.com/politics/2019/aug/30/boris-johnson-prorogue-parliament-scottish-judge
The Belfast legal action was launched by Raymond McCord, a victims’ rights campaigner who is seeking an urgent injunction to reverse the prorogation. The hearing on the injunction has been adjourned till next week. https://www.bbc.co.uk/news/uk-northern-ireland-49522042
McCord has argued that a No Deal Brexit could threaten the Good Friday peace agreement. https://www.theguardian.com/politics/2019/aug/29/proroguing-parliament-is-unlawful-abuse-of-power-court-told
See also: https://www.theguardian.com/politics/2019/sep/01/how-the-week-mps-try-to-legislate-to-block-no-deal-brexit-may-unfold