October 1, 2019
BREXIT UPDATE 45
There are two big Brexit stories since my last Update two weeks ago: the Labour Party Conference’s decisions on Labour’s position on Brexit and the Supreme Court’s ruling on Johnson’s prorogation of Parliament. First, in chronological order, the Labour Party Conference.
The conference began with a misguided attempt by some activists to abolish the post of Deputy Leader, in order to oust Tom Watson, on the grounds of his constant efforts to undermine Corbyn. It appears that Corbyn was not told about this; he moved to quash the attempt, judging that it would trigger a Labour civil war; the Conference would be all about Watson and the conflict could even have resulted in a leadership challenge.
Then came voting on three Brexit motions. As I wrote in Brexit update 44, Corbyn had agreed with the unions a position in which Labour will a) seek to win a General Election; b) if Labour wins, negotiate a compromise, “soft” Brexit deal with the EU; c) put the deal to the public in a referendum in which the choice will be between the deal and remaining in the EU. So the questions for the Conference were: should Labour seek an election before a referendum; and in the event of a referendum, what would Labour campaign for?
The first motion consisted of a statement tabled by the National Executive Committee (NEC), ending:
“The NEC believes it is right that the party shall only decide how to campaign [in a referendum on Brexit] through a one-day special conference following the election of a Labour government.”
In other words, Labour will remain neutral on Leave or Remain till it comes to power. But Remain-supporting activists had tabled a motion that stated:
“Labour must reflect the overwhelming view of its members and voters, who want to stay in the EU. Labour will therefore campaign energetically for a public vote and to stay in the EU in that referendum, while recognising the rights of those members who want to argue another view.”
It appears that the Remain motion was, in the words of Skwawkbox, an attempted “functional coup” against Corbyn; if it had passed, this would have been the first step towards a leadership challenge.
There were powerful speeches, particularly from trade union leaders, urging Conference to support Labour’s leader and pointing out that a Labour position of full Remain would play into the hands of Johnson by alienating Labour’s working-class heartlands in South Wales and in the Midlands and North of England that overwhelmingly back Leave. The NEC statement and the third motion (which supported the statement) were clearly carried with a show of hands. Reports indicated that the prevailing mood in the hall was pro-Corbyn.
The Remain motion was lost; but confusion on the part of the chair – who first said it was lost, then that it was carried, then again that it was lost — led to accusations that the vote was rigged. Even those who criticised the process, however, admitted that the show of hands against the Remain motion did seem to be larger than the show of hands in favour. And if the motion had been carried, Labour would have been in the absurd position of having passed two contradictory motions. 
So Corbyn has managed to avoid a position of full Remain and to survive another attempted coup; but Labour’s support for a second referendum could cost them votes in their Leave-supporting working-class heartlands – the seats that will be targeted by the Conservatives in the coming election. Yet it is hard to see how Corbyn could have avoided making the concession of a second referendum to the overwhelmingly Remain-supporting Labour party membership. He has probably secured the best compromise that can be achieved under the circumstances.
But all divisions and recriminations were forgotten when the news broke on Tuesday morning that the Supreme Court had ruled that the Prorogation of Parliament was ”unlawful, void and of no effect”. Two appeal cases on the prorogation had been brought to the Supreme Court: one by the government after three Scottish appeal judges at the Court of Session had ruled that Johnson had misled the Queen; the other by the businesswoman Gina Miller (supported by the former Tory Prime Minister John Major) after the High Court in London had dismissed her case on the grounds that the issue was political, not legal. (See Brexit Updates 42 and 44).
I wrote in Brexit Update 44 that on the prorogation issue the Supreme Court had been expected to rule in favour of the government. At the time I wrote this, on September 16, this did seem to be the prevailing view. For instance, the Guardian’s legal correspondent wrote on September 17, the first day of the three-day hearing:
“for the supreme court to rule against the government – to side with the Scottish court of session against the English high court — would amount to a bold act of judicial assertiveness, effectively creating new law curtailing the power of the executive. It could happen, but it would not be normal”.
But in the course of the hearing, the questions asked by the Supreme Court judges in response to the forceful arguments put forward by Lord Pannick, the advocate for Gina Miller, and Aidan O’Neill, the fiery lawyer acting for the Scottish National Party, began to lead commentators to think there was a real chance that the judgement could indeed turn out to be against the government. Above all, it counted against the government that it had not tendered any witness statement to the Supreme Court. The Shadow Minister Barry Gardiner later explained the reason to the BBC’s Newsnight programme:
“No evidence was given by this government to the Supreme Court….for the simple reason that our bloody marvellous civil servants – not one of them would commit perjury and put that evidence in there. Because that is what they were asked to do.”
Even so, before the result was announced on the morning of Tuesday September 24, no-one knew which way the judgment would go. So the ruling produced a widespread sense of relief and jubilation, particularly at the Labour Party Conference. The statement from the Supreme Court concluded that “the decision to advise her Majesty to prorogue parliament was unlawful because it had the effect of frustrating or preventing the ability of parliament to carry out its constitutional functions without reasonable justification”.
The Speaker of the House of Commons, John Bercow, announced on Tuesday, following the ruling, that Parliament would resume its session the following day (Wednesday September 25); so the Labour Party Conference, due to last till Wednesday, was cut short. A very welcome side-effect of the Supreme Court’s decision was that Tom Watson’s speech, due to be delivered on Tuesday afternoon, was cancelled; he revealed to the Jewish Chronicle that he would have accused Corbyn of failure to address the antisemitism issue.
Instead, Watson’s Tuesday afternoon slot was taken by Corbyn (previously due to speak on Wednesday), who delivered one of his most inspiring speeches. Beginning with the announcement that morning of the Supreme Court’s decision, he tore into Johnson’s claim to be anti-Establishment, pointing out that Johnson is the Establishment. He contrasted Johnson’s No-Deal Brexit that will “rip away our rights and protections” to turn the UK into “an off-shore tax haven for the super-rich” and that will enable Johnson to “conclude a free trade deal that will put our country at the mercy of Donald Trump” with Labour’s transformative Socialist policies that will benefit “the many, not the few”. So the Conference, which had begun so divisively, ended on a high note of unity and galvanisation for the coming electoral showdown.
The next day, Parliament resumed. The day began with a stormy session during which Michael Gove, the Minister in charge of preparations for a No Deal Brexit, updated the Commons about the plans for an outcome for which, he claimed, the government was ready, even though it was intending to leave with a deal; the country needs, he argued, to be prepared for all eventualities. Then the Attorney-General, Sir Geoffrey Cox, spoke about the Supreme Court’s decision in the light of his own advice to the government that the prorogation was not a matter for the courts. Though he did at one point admit that “we got it wrong”, his tone was on the whole unapologetic. He insisted:
“The Supreme Court has made new law. Let us be absolutely clear: from now on, the prerogative power of Her Majesty, advised by the Prime Minister, can be the subject – the justiciable subject – of the court’s control; and that was a judgment that the Supreme Court was perfectly entitled to make.”
But the Supreme Court judges pointed out in their statement that they were applying existing — in fact centuries-old — constitutional law to an unprecedented case: “the question arises in circumstances which have never arisen before and are unlikely to arise again. It is a one-off”. Further on, the statement asserts:
“As long ago as 1611, the court held that ‘the King [who was then the government] hath no prerogative but that which the law of the land allows him’……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.”
Johnson had cut short his visit to the United Nations in New York, flying back to London that morning to face the music. After Cox’s statement, a defiant and unrepentant Johnson addressed the Commons in a deliberately provocative speech that led to one of the most acrimonious debates in modern times. Whereas Cox, though stopping short of apologising to the House, had at least said “we got it wrong”, Johnson insisted that the Supreme Court was wrong: “I think that the court was wrong to pronounce on what is essentially a political question, at a time of great national controversy”.
I wrote in Brexit Update 44 that Corbyn had criticised Johnson for using the term “Surrender Bill” to describe the bill to prevent No Deal; Corbyn had pointed out that the UK is not at war with the EU. But Johnson now not only called the new law “the Surrender Act” and ”the Capitulation Act”, but accused Parliament of “sabotaging” his negotiations with the EU by taking No Deal off the table, because, he claimed, Parliament wants to stay in the EU and so is against any deal at all: “The people at home know that this Parliament will keep delaying, and it will keep sabotaging the negotiations, because Members do not want a deal”. He accused the Opposition of “betraying” the people: “We will not betray the people who sent us here; we will not. That is what the Opposition want to do.”
In response, many MPs, especially women MPs, angrily criticised Johnson for his loaded use of language, pointing out that words such as “surrender”, “sabotage”, “betrayal” were creating an inflammatory climate that was causing the far right to issue death threats against MPs, especially women MPs; mention was made of the horrific murder by a far-right nationalist of the ardent Remainer Labour MP Jo Cox during the 2016 referendum. Johnson deliberately stoked up even more rage by replying to one woman MP who made these arguments: “I never heard such humbug in all my life”. When asked point-blank at the end whether he will obey the law and ask the EU for an extension if he fails to achieve a deal by October 19, he replied with one monosyllable: “No” – and shortly afterwards left the Debating Chamber. 
The latest Brexit news today (Tuesday October 1) is that the government has said it will present new proposals to the EU by the end of this week. There has been a leak of some documents, though there is confusion about whether these are the new proposals or merely earlier drafts.
In response to the Johnson government’s demands that the backstop be abolished, EU leaders have always said that they will happy to do so if the UK government can come up with a credible alternative. The leaked documents indicate that the UK plan is for customs posts in clearance zones five to ten miles away from the Irish border on either side – a proposal unacceptable to the Irish government and the EU. But Johnson claimed today that these leaked documents are not the actual proposals, but earlier “non-papers” – ie merely drafts that float ideas. He insisted the actual proposals will be sent in a few days – though he did indicate that the UK government holds that there will have to be some checks somewhere. The Irish Prime Minister, Leo Varadkar, said today: “I very much welcome Boris Johnson’s words today when he disowned the non-papers; had he not, in my view, it would have been hard evidence of bad faith by the UK government.” It is very unlikely that the UK will come up with an alternative to the backstop before October 19 – less than three weeks’ time – that could satisfy the Irish government and the EU leaders.
The British Parliament has so little trust in Johnson’s good faith – in fact none at all – that there has been a revival of the plan of a vote of no confidence to bring down his government. Despite the new anti-No-Deal law and the Supreme Court’s decision, it is still feared that Johnson could find a way around the new law that will enable him to bring the UK out of the EU without a deal on October 31. In the end, the only sure way of preventing No Deal is still to bring down the government (see Brexit Update 41).
Yesterday (September 30), Corbyn held a meeting of opposition party leaders in his office. The Scottish National Party have said they are willing to support Corbyn as an temporary Prime Minister who will head an emergency government that will negotiate an extension with the EU and call a general election. But the Liberal Democrats and Tory rebels still refuse to support Corbyn. Various other names have been forward for the post of temporary Prime Minister, in particular the veteran Labour MP Margaret Beckett, but Labour is still resisting an alternative to the natural choice, Jeremy Corbyn. So the vote of no confidence will not be tabled this week.
The next Brexit Update will report on the main developments in the run-up to the crucial date of October 19, the date on which Boris Johnson is required by law either to present a new Brexit deal to Parliament or to request the EU for an extension.
 In 2016, Gina Miller won an appeal case in the Supreme Court stipulating that the government could not trigger Article 50 (ie start the Brexit process rolling) without first seeking the consent of Parliament (see Brexit Update 42, footnote 10). This initiated the whole struggle over Brexit between the government and Parliament that has continued ever since.