September 16, 2019
BREXIT UPDATE 44: CORBYN AND THE UK’S SANITY GAP
To try to sum up the current situation in the alternative reality that is Brexitland: following Johnson’s announcement of the prorogation of Parliament for five weeks, from September 9 to October 14, Parliament has passed in five days a law to prevent the UK crashing out of the EU on Halloween without a deal – an outcome predicted to be a disaster, with food and medicine shortages and civil unrest. 21 Tory MPs voted for the law; they were expelled from the parliamentary party by the Prime Minister. As a result, the government has lost its majority and cannot function. The only way forward is a snap general election, but this requires a two-thirds majority. The opposition parties – unable to trust the Prime Minister, who, they are convinced, still has tricks up his sleeve to ensure that the UK leaves without a deal — are refusing to vote for an election unless and until he either achieves a deal with the EU (after months of non-negotiation) or asks for a three-month extension, as he is now required to do by law if he has not reached a deal by October 19. He says he would rather be “dead in a ditch” than ask for an extension.
All these complications could have been avoided if in August the Liberal Democrats and rebel Tories had agreed to support Corbyn on September 3 (when Parliament first reconvened after the summer recess) in a vote of no confidence in the government; and then back him to take over from Johnson as a temporary, caretaker Prime Minister who would arrange an extension with the EU and call a general election (see Brexit Update 41). But Corbyn was forced to accept that he could not win enough support for this quick, simple and clear-cut route.
So what has happened in the past week? At 2am on Tuesday morning (September 10), Parliament was officially prorogued for five weeks; but not before another mad day of parliamentary drama had come to a close. Monday afternoon saw two emergency debates. One was on the leaked government report – known as “Operation Yellowhammer” — on the disastrous consequences of No Deal (see Brexit Update 41); a motion was passed calling on the government to publish all the Yellowhammer documents in full and also all government communications in relation to the prorogation of Parliament (this second bit was aimed at Johnson’s eminence grise, Dominic Cummings, who was rumoured to have sent dubious emails on the subject). A motion was also passed that had been tabled by Corbyn on the importance of upholding the rule of law. Introducing the motion, Corbyn criticised the Prime Minister for calling the anti-No-Deal Bill (now an Act) “the Surrender Bill”. Corbyn pointed out that “we are not at war” but “negotiating with our European partners”.
Then, at 10pm, came Johnson’s second attempt at getting Parliament to pass by a two-thirds majority a motion calling for a snap General Election. Introducing the motion, Johnson now described the new law as “the Surrender Act” and called on Parliament to “vote for an election and let the people decide whether they want a delay or not”. He went on: “If you refuse to do that tonight I will go to Brussels – our Government will go to Brussels – on 17 October, hopefully with a deal but without one if necessary. I will not ask for another delay”.
He concluded his speech:
“The public have had enough of the delectable disputations of this House, and I must warn Members that their behaviour in thwarting the will of the people is undermining respect for this House in the country. If honourable Members want another delay, the only proper way to do it is to ask permission from our masters, the people – from our masters, the voters.”
Johnson is here positioning himself as a Trump-like populist leader on an anti-Establishment platform, claiming to support the people against Parliament – an anti-democratic approach posing as democratic. He is, however, right that “the public have had enough of the delectable disputations of this House” (It has to be admitted, too, that Johnson can occasionally have a way with words).
In response, Corbyn said that Johnson had “clearly indicated that he does not intend to follow the law that has just been passed” adding “Until the Act has been complied with and No Deal taken off the table, we will not vote for an election.”
The motion to call the snap election failed again to get a two-thirds majority. The tally was: the Ayes: 293; the Noes: 46 – again well short of the magic number of 434 (in fact, even less than the previous Ayes figure of 298).
The day finished with a highly dramatic and unusual prorogation ceremony. At the end of every session of Parliament, the Queen’s Commissioners carry out this archaic ritual in the House of Lords (the Monarch has not personally attended a prorogation since 1834). The Commissioners send as an emissary to the Commons a senior Lords official called Black Rod (a shortened form of “the Gentleman Usher of the Black Rod”; the first female holder of the post was appointed in 2017, so she is called “the Lady Usher of the Black Rod”). Black Rod wears an elaborate costume, with a wig, and carries a black rod. When Black Rod reaches the Commons, the door is slammed in his/her face – a symbolic assertion of the independence of the Commons; a sign that the emissary of the Monarch (or the Monarch’s representatives) cannot enter the Commons without challenge. Black Rod then knocks on the door three times with the black rod. The door is opened, Black Rod advances into the Commons, utters the ritual formula summoning MPs to the House of Lords, and the MPs go to the House of Lords to attend the prorogation ceremony.
The origins of this ritual go back to a visit by Charles I in 1642 to the House of Commons (he was accompanied by 400 armed men who waited outside) in an illegal attempt to arrest for treason the “Five Members” – the five most powerful figures of the Commons at that time, including John Pym and John Hampden. They had been warned and had been spirited away from the Commons by boat. Foiled in this last attempt to assert his despotic authority and facing a popular uprising in London, the King fled from the capital (to which he was to return only in 1649, for his trial and execution) to the North; this marked the start of the Civil War. Since Charles I’s entry in 1642, no British Monarch has ever set foot in the House of Commons; during State Openings of Parliament, the Queen delivers her Speech in the House of Lords, to which MPs are again summoned, with the same ritual, by Black Rod.
On Monday night, the prorogation ceremony, usually only of picturesque and historical interest, sprang to life. The slamming of the door in Black Rod’s face seemed to be of more than symbolic significance; but she was duly admitted after banging on the door. But when she came into the Commons and uttered the ritual formula
“Mr Speaker, the Lords, who are authorised by Her Majesty’s Commission to declare her Royal Assent to Acts passed by both Houses and to also declare the Prorogation of Parliament, desire the presence of this honourable House”,
opposition MPS shouted “No!” and held up placards bearing the word “Silenced”. Some opposition MPs even tried to hold down the Speaker in his seat, since the prorogation ceremony cannot take place without the presence of the Speaker of the House of Commons. The Speaker, John Bercow, finally delivered a short speech, saying:
“I want to make my point that this is not a normal prorogation. It is not typical; it is not standard. It represents an act of executive fiat….I will play my part. But I completely understand why very large numbers of members are very happy staying where they are.”
As Tory MPs, led by Bercow (who looked as though he was being held captive), filed out to go to the Lords, opposition MPs stayed put in their seats and shouted at the Tories: “Shame on you!”
Since then, Parliament has been prorogued. But there has been a surprising development in the legal route to counter the prorogation. In Brexit Update 43, I wrote that Jonathan Sumption, a former Supreme Court judge, told the BBC that it was unlikely that the courts would uphold the objections to prorogation, because this was a political, not a legal matter. At first, events seemed to bear him out. The cases failed in the High Court in London and in Northern Ireland, where judges ruled that the issue was not one for the courts. And the Court of Session in Scotland at first did the same. A lower Court of Session court decided that the matter was political, not judicial. But, in a shock decision, three appeal court judges of the Court of Session have overruled the decision, deciding that the Prime Minister misled the Queen. The government is now taking the case to the highest court in the land, the Supreme Court, which will start the hearing on Tuesday (September 17); the decision is likely to be made public at the end of this week or early next week..  The Supreme Court is expected to rule in the government’s favour; but, if it rules that Johnson did indeed mislead the Queen, this is likely to lead to the return of Parliament and to calls for Johnson’s resignation. So the decision is eagerly awaited.
Meanwhile, Corbyn has made it clear in a speech to the Trades Union Congress (TUC) Conference, that should he win a general election, he is planning to negotiate a deal with the EU (a compromise deal that will involve the UK staying in a customs union and aligning with the Single Market); and then, if the deal is passed by Parliament, ask the public to choose in a referendum between the Labour Brexit deal and remaining in the EU: “in that election we will commit to a public vote with a credible option to leave and the option to remain”. But on Wednesday (September 11), the Labour Deputy Leader, Tom Watson, made a speech in which he argued that a referendum should come before an election and that Labour should adopt a policy of full Remain. Corbyn, however, made it absolutely clear that Watson’s views do not reflect Labour Party policy, telling an interviewer: “It’s Tom’s view….I don’t accept it; I don’t agree with it”. It seems that, because of the splits in the Shadow Cabinet, it has decided that, during the referendum campaign (if Labour first wins an election and Corbyn negotiates a deal with the EU that is passed by Parliament), Labour will adopt a neutral policy on Remain or Leave; some Shadow Cabinet members will back Remain, others – including presumably Corbyn himself – will support the Labour Brexit deal.  The full Labour policy on Brexit will be thrashed out at the Labour Conference in a week’s time.
The European elections showed that the country is polarised between Remain and No Deal. At their Conference this week, the Liberal Democrats have pledged that, if they win the general election, they will revoke Article 50 – ie cancel Brexit altogether without holding a referendum. This means ignoring the democratic (even if narrow) vote for Brexit.  At the other extreme, the Brexit Party’s entire policy is leaving without a deal (an outcome for which no-one voted in the 2016 referendum). And in an interview yesterday with the Mail on Sunday, Johnson insisted that, if negotiations broke down with the EU, he would still take the UK out without a deal, despite the new law. He compared the UK with the Incredible Hulk, breaking free from the “manacles of the EU”, adding “The madder Hulk gets, the stronger he gets.” EU leaders were not impressed. The European Parliament’s chief Brexit representative, Guy Verhofstadt, tweeted: “Even to Trumpian standards, the Hulk comparison is infantile”.
There is a wide middle, compromise ground between the two extremes of Remain and No Deal that is occupied only by Labour. Corbyn is the true democrat and “centrist”. Skwawkbox quotes a senior Labour source: “There’s a massive sanity gap in politics right now and Jeremy is the only one who can fill it. He’s the only one trying to represent the 99% instead of just the 48% or the 52%”.
But is there any chance that Johnson will achieve a deal before October 19? There has been some speculation that, having lost his majority anyway (he is now at minus 45), he no longer needs the DUP to prop him up and so might go for the original EU backstop proposal (which is anathema to the DUP) that Northern Ireland would remain in the Customs Union and Single Market (see Brexit Update 1). The border would then be in the Irish Sea between Northern Ireland and the rest of the UK, instead of being between Ireland and Northern Ireland. But this idea has been rejected by the UK government, which insists the entire backstop has to go.
Today (Monday September 16) Johnson had his first meeting with the President of the European Commmision, Jean-Claude Juncker. After the working lunch in Luxembourg, the British government described the talks as “constructive” and Johnson said “we’ve got a good chance of a deal. Yes, I can see the shape of it”. But he didn’t take part in a press conference, citing the noise from protesters as a reason. Speaking alone on the podium with an empty lectern next to him, the Prime Minister of Luxembourg said “You can’t hold the future hostage for party political gains.” He also asserted that there are “no concrete proposals at the moment on the table” from the UK; and the EU “needs more than just words”. Commenting on Johnson’s absence from the press conference, Guy Verhofstadt tweeted: “From Incredible Hulk to Incredible Sulk”.
For a video of the Prorogation ceremony, see:https://www.youtube.com/watch?v=0ZhkRWIAYKI
The debate included an intervention from the former Labour MP – now sitting as an Independent — Ian Austin (who was one of those who left the Party citing antisemitism, but did not join the Independent Group (TIG) because he is a Leaver and TIG were all Remainers). Austin made an extraordinary speech claiming Corbyn had no right to table a motion upholding the rule of law since he had “spent his entire life supporting terrorists and anti-Semites”.