October 20, 2019
BREXIT UPDATE 48: The Letwin Amendment
At the end of Brexit Update 47, I briefly mentioned the complicated amendment (short but very complicated in its intention), that had been tabled by the rebel ex-Tory MP Sir Oliver Letwin to the motion on Johnson’s deal. This amendment was intended to pre-empt the possibility that Johnson could take the UK out of the EU without a deal on October 31, even if his deal were to pass.
If the motion on the deal had passed on Saturday (October 19), the deal would then have been required to return to Parliament in the form of a Bill, which would then have needed to pass all its stages in the Commons and the Lords before October 31. There were fears that Johnson could deliberately delay the Bill’s stages so they were not completed before October 31 – the result being that the UK would leave without a deal. This was a loophole in the Anti-No-Deal Act –known as the Benn Act, after its main proposer, the Labour MP Hilary Benn. The Benn Act stated that, if a deal was not approved by the Commons by 11pm on October 19, Johnson was obliged to send a pre-written letter to the EU requesting an extension – but if a deal was approved by that time, then he was not required to ask for an extension.
Even if Johnson did not deliberately delay the legislative process, there were only 12 days left till October 31, which was an extremely tight period through which to pass the deal through all its stages. The Prime Minister could ask the EU for a short technical extension in order to complete the legislative process (a request that would certainly be granted), but this would be the choice of the Prime Minister; Parliament would not have a formal say in the matter. So Letwin decided to trigger the Benn Act in order to be sure of preventing a No Deal Brexit, either by deliberate obstruction or accidentally-on-purpose because Johnson had not asked for a technical extension. And there was every indication that Johnson would not request a technical extension, because of his absolute commitment to taking the UK out of the EU on October 31, “do or die”, deal or no deal.
The Letwin Amendment added to the motion: “this House has considered the matter but withholds approval unless and until implementing legislation is passed”. If passed, the Amendment thus ensured that Johnson would be forced to ask the EU for an extension. As stated above, the Benn Act stipulated that if a deal wasn’t approved by the House of Commons by 11pm on October 19, Johnson would be obliged by law to send a pre-written letter to the EU requesting a three-month extension to January 31, 2020.
If the Letwin Amendment had failed at the debate on the deal yesterday (Saturday October 19), MPs would have gone on to vote on the deal itself. But the Letwin Amendment passed by 16 votes: the Ayes: 322; the Noes: 306. This meant that, in procedural terms, the motion passed “on the nod”, without a vote, together with the Letwin Amendment; but the deal had not passed; a decision on the deal had not been made by MPs and the House of Commons had not approved the deal.
Despite having said in September that he would “rather be dead in a ditch” than ask the EU for an extension, Johnson did indeed send the letter to Donald Tusk, the President of the European Parliament, before 11pm yesterday night (Saturday October 19). But Johnson sent three letters. The first was an unsigned photocopy of the pre-written letter that he was obliged by law to send. The second was a brief covering letter from the UK Ambassador to the EU explaining that Johnson had been required by the Benn Act to send the enclosed letter. And the third was a signed letter from Johnson to the EU leaders, in which he dissociated himself from the pre-written letter, calling it “the request mandated by Parliament” to which he personally was completely opposed. He did not in so many words ask the EU to refuse to grant an extension; but this was the sub-text of his own letter.
Michael Gove, the Minister in charge of preparations for a No Deal Brexit, told Sky News today (Sunday) that the government would now trigger Operation Yellowhammer – the government’s contingency plan for a No Deal Brexit –because of the prospect that the EU will refuse an extension. It has become clear, however, that the EU – which is deeply reluctant to permit a No Deal Brexit — will indeed grant an extension if necessary.
It emerged recently that, during the Scottish Court of Session case about Johnson’s Prorogation of Parliament, Johnson told the court in writing that he would send the letter if a deal was not approved by the Commons by 11pm on October 19 and also promised that he would not try to “frustrate” the effect of the letter. A hearing at the Court of Session is taking place on Monday into the question of whether or not Johnson has acted in contempt of court by sending the second letter. If he is found guilty, he could be fined or even jailed.
The government wants to have a second attempt at a substantive “meaningful vote” – ie a vote on an amendable government motion on a UK/EU deal — on Monday. But it is likely that the Speaker will prevent this, as a result of a convention in the parliamentary rule book (known as “Erskine May” after its author) that has already been used in relation to the Maybot’s repeated attempts at persuading Parliament to pass her deal. I wrote in Brexit Update 14:
“On Monday March 18, Bercow ruled that the Maybot cannot bring her deal back to Parliament for a third time unless it is ‘substantially changed’. This is the relevant passage from ‘Erskine May’, as quoted by Bercow: ‘A motion or amendment which is the same, in substance, as a question which has been decided during a session may not be brought forward again during the same session….Whether the second motion is substantially the same as the first is finally a matter for the judgment of the Chair’”.
It is more likely that Johnson’s deal will return to the House of Commons on Tuesday in the form of a Bill undergoing its Second Reading. Is it likely to pass? It has a chance, because it seems that many of the ex-Tory rebels who voted for the Letwin Amendment (including Letwin himself) also intend to vote for Johnson’s deal. On the other hand, a Bill will be much longer, more detailed and more open to scrutiny than a motion, which could make some MPs think twice about voting for the deal. By rushing through the negotiations at breakneck speed just before the October 19 deadline and returning as a supposed hero, Johnson clearly hoped to railroad MPs into voting for his deal without proper consideration of its detail. And indeed, this is another important reason behind the Letwin Amendment: to give MPs time to scrutinise the deal instead of allowing it to be rushed through Parliament before October 31 (assuming Johnson was not deliberately trying to delay it so as to crash out with No Deal).
The latest news is that Keir Starmer, the Shadow Brexit Secretary, has suggested that Labour could back the Bill if it is amended to include a second referendum on the deal with a Remain option (though previously Corbyn had opposed backing the deal with a second referendum attached to it).  It is still unclear whether or not Corbyn would support this idea; and in any case there is no guarantee such an amendment would pass. There was a massive march of hundreds of thousands of people to Parliament on Saturday in support of a second referendum – but the House of Commons is still unlikely to support the idea.
More promising, however, is the possibility of an amendment on a UK-wide customs union with the EU, plus Single Market alignment. . This is Corbyn’s Brexit plan; and it would remove the need for a backstop. The Guardian is reporting on the prospect of a “rebel alliance” of Labour, rebel ex-Tories and – crucially – the DUP (who are understandably extremely angry at the deal) to support such an amendment (as well as possibly the second referendum and other amendments). 
The next Brexit Update will report on the EU Withdrawal Implementation Bill’s Second Reading, likely to be on Tuesday.