August 13, 2019
BREXIT UPDATE 40: PLOTS AND COUNTER-PLOTS
It seems increasingly clear that Boris Johnson intends to bring the UK out of the EU on October 31 without a deal. The only deal he appears to envisage is one based on the Malthouse Compromise, according to which the UK will leave on the deadline date and then, during an interim period after leaving, will negotiate a free trade agreement which will include unspecified technological solutions to the Northern Ireland border problem, instead of the backstop. (See Brexit Update 35). His government will only agree to enter into negotiations on this basis. The EU leaders, however, are refusing to reopen the Withdrawal Agreement and abolish the backstop.
So it seems unlikely that any talks will take place; and Johnson’s strategy is to blame a No Deal Brexit on the EU leaders for their refusal to negotiate. As I argued in Brexit Update 39, Johnson seemed from the first to be deliberately heading for a No Deal Brexit on October 31 and a General Election.
Johnson has repeatedly said he does not want to fight a General Election before October 31; his idea seems to be that, if the UK leaves the EU first, before a General Election is held, this will neutralise any threat from the Brexit Party – since the Brexit Party’s whole platform is leaving without a deal, and the UK will already have left without a deal (or with one in the unlikely event that the EU leaders back down at the last minute and agree to the Malthouse Compromise); and the Lib Dems, with their extreme Remain platform, will, Johnson seems to calculate, also be weakened by the fait accompli of the UK having left the EU. This would leave Johnson free to concentrate on defeating Corbyn: a task that Johnson believes he can easily manage. His optimism is based on a) his experience as Mayor of London, when he beat Ken Livingstone twice; b) what Johnson regards as Corbyn’s weakness as a result of his alleged shilly-shallying on Brexit and of the so-called Labour antisemitism “crisis”.
It is now considered likely that, soon after Parliament reconvenes on September 3 after the summer recess, Corbyn will table a vote of no confidence in Johnson’s government – the motion being “This House has no confidence in Her Majesty’s government”. The new government now only has a majority of one, having – as was widely predicted – lost the Brecon and Radnorshire by-election in Wales last week to the Liberal Democrats. So it is also likely that the government will lose the vote of no confidence. However, despite the government possessing a majority of only one, this loss is not inevitable – there are reports today (Tuesday August 13) that Conservative MPs are rethinking whether they should indeed bring down their own government and risk a Corbyn victory in a General Election. But if the government does lose the vote of no confidence, what would happen next?
This is where we get into very murky territory – a murkiness that arises from the UK’s lack of a Constitution, which means that there are few hard-and-fast rules; things tend to work according to convention, precedent and general British muddling through. If a government loses a vote of no confidence, the protocol is that, if it is clear that an alternative government exists that can command the support of a majority of the House of Commons, the Prime Minister resigns and the Queen invites the Leader of the Opposition — or whoever is thought to be able to command a majority — to attempt to form a government. If he or she fails to do so within two weeks, a general election is called.
However, Johnson is indicating that, if he loses a vote of no confidence early in September, he will refuse to resign, giving as his reason the lack of a clear alternative government that can command a majority in the House of Commons. And it is true that many MPs are opposed to the idea of a Corbyn-led government. There are some proposals for a cross-party “government of national unity” to be led by a so-called “centrist” MP – ie not Corbyn – but it is very unlikely that this could command the support of a majority of MPs. Labour has made it clear that it would not join such a government.
If Johnson loses a vote of no confidence and refuses to resign, he would then spend 14 days trying to build up confidence in his government; after the two weeks, a vote of confidence would be held, the motion being “This House has confidence in Her Majesty’s government”. If he loses that vote, he will then call an election for a date of his choosing.
This is where we see emerging a cunning and unscrupulous plan by the Johnson government to force through a No Deal Brexit. There is a rule that Parliament must be dissolved 25 working days before the General Election date. If Johnson sets an election date for early November, Parliament would not be sitting during the passing of the Brexit deadline on October 31.
This scenario is said to be the brain-child of Dominic Cummings, a maverick right-wing intellectual whom Johnson has appointed as his chief adviser. Cummings, who tends to be seen at Downing Street wearing jeans and a T-shirt, at events where everyone else is in suits and smart dresses, is an anti-Establishment populist with a mission to reshape the UK. In a Channel 4 film called “Brexit: The Uncivil War”, Cummings was portrayed vividly by the famous actor Benedict Cumberbatch as the sinister but glamorised anti-hero, compared to whom everyone else seemed to be a cypher. Cummings master-minded the Vote Leave campaign in 2016, coming up with the slogan “Take Back Control”. He has been widely criticised as the man responsible for the misleading slogan that the UK gives 350 million pounds a week to the EU (this sum is actually gross, not net) and the lie that Turkey was about to join the EU — this could, Vote Leave claimed, lead to 76 million Turks coming to the UK.  But Cummings has now become Johnson’s eminence grise. He has been quoted by the Sunday Telegraph as having told Tory ministers: “If there is a no-confidence vote in September or October, we’ll call an election for after the 31st and leave anyway.” He has also claimed that it would be too late to hold an election before the Brexit deadline. Cummings is said to be the driving force behind Johnson’s “do or die” determination to leave on October 31. Robert Peston of ITV writes of Cummings:
“for those who are terrified of a no-deal Brexit, the question is not whether Cummings will blink. He is psychologically and physiologically unequipped to do so. It is whether Johnson will hold his nerve and keep himself handcuffed to Cummings’s steering wheel, till this fateful journey is done”.
Corbyn has set out to forestall Cummings’s plot by writing a letter to Sir Mark Sedwill, the Cabinet Secretary and Head of the Civil Service. Corbyn points out that
“Forcing through No Deal against a decision of Parliament and denying this choice to the voters in a general election already underway would be an unprecedented, unconstitutional and antidemocratic abuse of power by a Prime Minister elected not by the public but by a small number of unrepresentative Conservative Party members”.
Corbyn goes on to refer to what is known in the UK as “purdah” (the word is a legacy from Britain’s colonial rule of India, where “purdah” involves constraints on the activities of women) – which means restrictions on government actions during an election campaign. In other countries, this pre-election limbo is known as a “caretaker period”. In his letter Corbyn cites one of the rules of “purdah”:
“As you will be aware, Purdah guidance makes clear that ‘decisions on matters of policy on which a new government might be expected to want the opportunity to take a different view from the present government should be postponed till after the election, provided that such postponement would not be detrimental to the national interest or wasteful of public money.’”
Corbyn points out that leaving without a deal in the middle of the pre-election period would have a “deeply damaging impact on the economy…..a Labour government will never support a No Deal exit, so would of course’ want the opportunity to take a different view’.” He ends by calling on Sir Mark to ensure that, if the UK is on the brink of leaving with no deal during a general election, “the government should seek a time-limited extension to Article 50, to let the electorate decide and the incoming government to take the next steps on the basis of the voters’ wishes”.
In the face of his party’s internal disputes over the second Brexit referendum issue, Corbyn seems to have kept this last bit deliberately vague – the only clear part is the demand that the government seek an extension to Article 50, whether for the general election (so that the UK does not leave the EU during the general election campaign) or for a second Brexit referendum or for both (Corbyn’s post-election plan, if he becomes Prime Minister, is to negotiate an alternative deal with Brussels and put it to a public vote).
Meanwhile, other attempts to prevent a No Deal Brexit are being made. A group of about 70 Remainer MPs are asking Scotland’s highest civil court, the Court of Sessions, to rule that Johnson cannot ask the Queen to prorogue Parliament before the October 31 Brexit deadine. The Remainer MPs took the case to Scotland because English courts do not sit in August. Today (Tuesday August 13), the case had its first hearing; the Court of Sessions decided that the first substantive hearing will be on September 6. 
And on September 9, Parliament will debate a progress report on the situation in Northern Ireland. As a result of the recent passing of the Northern Ireland Executive Formation Bill (see Brexit Update 38), the report has to be presented on September 4 and debated within five days. It is thought that MPs opposed to a No Deal Brexit will try to pass an amendment enabling them to take control of parliamentary time in order to initiate a bill that will compel the government to seek an extension from the EU.
But a theory is being put forward of an even more Machiavellian plot by Cummings and Johnson: that Johnson actually wants Remainers to force him into seeking another extension from the EU. According to this theory, Johnson (who, the theorists argue, doesn’t actually want a disastrous No Deal but is using it as a provocative bluff), will then blame the extension on Remainer MPs (among whom he will include Corbyn) and call a snap General Election, which he and Cummings will bill as “the people versus Parliament”, with Johnson on the side of the people. In this way, these theorists claim, Johnson calculates that he will win the general election with a fairly sizable majority (in contrast to his current majority of just one), so that he can manage without the support of the DUP and thus be able to sort out a backstop deal with the EU that gives Northern Ireland a different status from the rest of the UK.
Fascinating though this theory is, I find it too tortuous; and it surely ascribes too much intelligence, moderation and sanity to Cummings and Johnson. I would tend to agree with Robert Peston that Cummings is not bluffing. Moreover, a General Election fought while the UK still remained in the EU would surely mean that Nigel Farage’s Brexit Party would pose a major threat to the Conservatives; it is surely unlikely that Johnson would want a General Election under such circumstances, even if he blamed the extension on Remainers.
In this August lull before the storm, the Brexit situation is awash with plots, counter-plots, rumours and contradictory theories and predictions. The only things that seem clear are that September is set for some kind of showdown between the Prime Minister and Parliament — and that a General Election will have to take place in the near future.