Wednesday , September 18 2019
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Brexit: Ultra Fracas

Summary:
Needless to say, last week was an exceptional one for UK politics. It looked like car crashing into a wall and flying into pieces. And the audience wonders…will the gas tank explode next? Boris Johnson managed to unify a heretofore hopelessly divided opposition against him, and made his bad situation worse by conducting a jihad against his own party. And day-to-day developments that don’t make the headlines are just as unflattering. For instance, Johnson appears to have no idea what Brexit negotiations would amount to (he seems to be sincere when he talks about getting a deal done at the October EU Council meeting). And unlike Trump, he doesn’t have the excuse of not knowing the job description. Because I was largely on holiday last week, I hope I am not skipping over anything important

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Needless to say, last week was an exceptional one for UK politics. It looked like car crashing into a wall and flying into pieces. And the audience wonders…will the gas tank explode next?

Boris Johnson managed to unify a heretofore hopelessly divided opposition against him, and made his bad situation worse by conducting a jihad against his own party. And day-to-day developments that don’t make the headlines are just as unflattering. For instance, Johnson appears to have no idea what Brexit negotiations would amount to (he seems to be sincere when he talks about getting a deal done at the October EU Council meeting). And unlike Trump, he doesn’t have the excuse of not knowing the job description.

Because I was largely on holiday last week, I hope I am not skipping over anything important (as embarrassing as it was, I don’t regard the resignation of Johnson’s brother as important). PlutoniumKun summarized the events up to the weekend:

It’s hard to sum up the sheer lunacy of the past few days of UK politics, it even defies satirists, but here is my attempt at an overview of where we are as of the end of the first week in September.

1. Johnson (or should this be Dom and Dommer?) has revealed the real strategy. Provoke an election for mid-October running aggressively on a Brexit platform in order to try to get a majority and split the opposition. Brexit is almost a side issue to Johnson’s personal ambitions. He (and D&D) are prepared to destroy the Tory Party if necessary.

2. Johnson’s team completely botched the plan. They didn’t expect Corbyn to call their bluff on an election and they didn’t expect so many internal Tory defections. Essentially, they overplayed their hand and now find they’ve run out of cards and lost their majority. They need a new plan quickly, the question is if they can do it.

3. There now seems a much better than before chance of a 2 month extension being requested (probably as a condition of Johnson getting his election if necessary). I can’t see the EU turn this down unless Macron or a wild card leader objects.

4. Johnson seems all at sea and suddenly seems to have realised that being PM isn’t anywhere near as much fun as he hoped. He is very rapidly running out of goodwill on his own side, and soon this could be reflected in the polls. This could make him reconsider the quick election he claims not to want but is desperately trying to provoke. This could mean the UK just crawling over the no-deal cliff with a deeply wounded minority government in charge, let by a buffoon who has realised nobody is laughing with him anymore.

5. This week’s loser: Johnson blew his big moment. This week’s winner: Corbyn – he successfully called Johnson’s bluff and has made himself the undisputed leader of the opposition. The LibDems now will have little choice but to back him in almost anything he chooses to do. This week’s other winner: The SNP. Never interrupt your enemy….

This being an overly dynamic situation, new shoes dropped over the weekend. Work and Pensions minister Amber Rudd resigned, and then took to the airways to excoriate Johnson for not negotiating. Huh? The EU has said negotiations are over, save regarding the non-binding statement of the future relationship (although that is not totally true; the EU likely would consider swapping out the backstop for the so-called “sea border” option). Nevertheless, her beef seemed to be that Johnson wasn’t even making a credible pretense of trying to get a new deal.

Politico’s morning European newsletter has more detail on what Tory tactics hath wrought:

BORIS GOES TO DUBLIN: U.K. Prime Minister Boris Johnson heads to Dublin for his first face-to-face meeting with the Irish Taoiseach Leo Varadkar this morning. Back home in London, parliament will today finalize laws forcing Johnson to seek an extension of the Brexit negotiating period if he fails to secure a divorce deal by October’s European Council summit — something Johnson continues to insist he won’t do. Johnson instead still wants to convince MPs to vote for a snap general election. Spoiler alert: That’s looking highly unlikely indeed.

How Ireland lost patience with Brexiting Brits: Johnsons’s demand for changes in the Brexit deal has only hardened Dublin’s commitment to it, Naomi O’Leary and Charlie Cooper write. “As trust has trickled away, so too has the appetite to accommodate the shifting U.K. position, uniting Ireland’s political class behind their red lines,” they write.

How Paris lost patience with Brexiting Brits: Brussels won’t grant the U.K. a Brexit extension beyond October 31 if circumstances in the country remain the same, Jean-Yves Le Drian, France’s foreign minister, said Sunday. “The British must tell us what they want,” he told Europe1 radio. “We are not going to do this [grant an extension] every three months.”

How Brussels lost patience with Brexiting Brits: Talks between British and EU officials in Brussels on Friday were “catastrophic,” according to one EU official, with the Brits failing to present any new proposals.

How (now former) Tories lost patience with Boris: Amber Rudd said Saturday she was resigning from her post as secretary of state for work and pensions in Johnson’s Cabinet and quitting the Conservative Party because of how the PM is dealing with Brexit. Meanwhile Nicholas Soames, a veteran Conservative MP (and the grandson of Winston Churchill) who was effectively kicked out of the Tory party for not backing Johnson on Brexit, hit back hard at the PM. “Boris Johnson is nothing like Winston Churchill,” he told the Times. “I don’t think anyone has called Boris a diplomat or statesman.”

Other developments the BBC deemed noteworthy: Farage has offered a general election pact to the Tories and the Tories plan to defy convention and back a challenger for Speaker John Bercow’s seat.

But the other big news item of the weekend was that the Tories are leaking their oh-so-clever plan for how to implement Johnson’s promise to defy the expected-to-become-law Parliamentary bill to seek a Brexit extension to January 31. It appears that rather than be straight up intransigent, they plan to go the passive-aggressive route instead. From Reuters:

British Prime Minister Boris Johnson has prepared plans to legally stop any Brexit extension, the Daily Telegraph reported late on Sunday.

Johnson’s advisers held a meeting on Sunday to counter the strategy to prevent the British parliament’s attempts at enforcing a three-month Brexit extension if no new deal is agreed, the newspaper reported.

A plan under consideration would see Johnson sending a letter alongside the request to extend Article 50 setting out that the government does not want any delay after Oct. 31, according to the report.

On the one hand, this is so silly that it verges on lame. On the other, Labour was so uncertain that a bill telling the Prime Minister what to do would work that, as Clive pointed out, it was unwilling to back a vote of no confidence before the UK had secured an extension. Mind you, France is saber-rattling that it doesn’t want to give a three month extension with no plan as to how the UK will get to a Brexit. But France has made unhappy noises before and didn’t follow through. Unless it has more company than it did last time, it will probably relent.

What does seem surprising is that the Tories appear to have missed an opportunity to upend the apple cart. If I read this LSE article correctly, it says that the current “stop Brexit” bill, unlike the carefully crafted Cooper-Letwin, gives very detailed directives to the Prime Minister, as opposed to instructing the PM to “seek” an extension. Thus Cooper-Letwin did not intrude upon the royal prerogative and thus only required a royal assent. Because the new bill circumscribes the Government’s and hence the Crown’s authority to negotiate foreign agreements, it requires instead the Queen’s Consent, a higher bar. From the article (emphasis original):

Prerogative powers are legacy powers of the Crown that are now mainly exercised by the government. Conducting foreign affairs, and in particular the power to agree treaties and operate treaty powers, is an important part of the prerogative and is the relevant power for this post. Under that power, the UK government has agreed new treaties, and particular laws, at EU level over the last 46 years (and indeed continues to do so).

As part of the exercise of this prerogative, the UK agreed the Lisbon Treaty that created the Article 50 process for a country to leave the EU. The power to extend the Article 50 process, like virtually all legal acts conducted by the government at EU level, is not governed by any UK statute. Legal acts by ministers at EU level therefore remain, in almost all circumstances, exercises of prerogative power….

If Benn-Burt had precisely followed the format of Cooper-Letwin and only mandated that the government seek an extension, then it would have placed no obligation on the PM to agree or accept any extension. That would remain part of the prerogative power to be exercised as the PM sees fit in his negotiations with the EU27.

In seeking such an extension, the PM might make clear that he was only doing so because he was legally obliged to do so. It may be that the PM could attach a series of demands to any extension he must seek such that the EU27 would be unlikely to grant one. He may indicate that he would do nothing with any extension except seek to count down the clock, or even disrupt EU business, or other ideas. Any or all of these strategems may cause negotiations for an extension to fail.

However, Benn-Burt goes much further than Cooper-Letwin. It mandates that the PM must not only seekbut also agree to an extension, either 31 January 2020 or another date if the Commons approves a date suggested by the EU27. Mandating that the PM agrees to an extension manifestly affects the prerogative. It is difficult to see how requesting Queen’s Consent can be avoided for this Bill. If so, it follows that the government must agree to the Bill being passed during Third Reading.

What is most fascinating about this dilemma is that the Cooper-Letwin prototype gave such clear and unequivocal evidence of where the bright line on Queen’s Consent is actually drawn by the legal experts who understand, and indeed determine, these issues within the Commons. Can there be any doubt that if a stronger wording could have been secured without triggering Queen’s Consent then such a wording would have been used last time?

Nevertheless, Bercow ruled that so-called Benn-Burt does not require the Queen’s Consent. At a minimum, the Ultras should have raised holy hell about that; their silence is out of character.

However, the Ultras may feel that simply defying Parliament will do. As much as Johnson may really not want a crash out (as in he may genuinely believe the EU will blink), he does appear to want to stay in No. 10. Johnson knows a general election is unavoidable and that Farage will take seats from the Tories if Johnson fail to live up to his campaign promise of delivering Brexit by October 31. And since Johnson also promised to flout Benn-Burt, he’s already ties his hands.

And the timetable works in their favor. If the Prime Minister defies the law, the breach will not occur until October 19, oddly a Saturday. The earliest a suit could be filed is October 21, a Monday. Presumably the defendants have the opportunity to file a response before the case is heard. I’m not an expert on UK procedure, but that would seem to suggest the absolute earliest a case could be heard would be Wednesday, the 23rd. And any ruling would be appealed. You can see that Parliament is likely to run out of legal runway.

But our esteemed commentariat already figured out that Johnson has little reason to fear from Parliament. They may have fatally undermined a court case. As Clive explained:

Various Conservative bigwigs have been asking the Speaker about the proceedings which were technical and difficult to necessarily get the meaning and purposes of. But they are trying (and possibly succeeding) to trip the Speaker up using the same reasoning that he’s invoked to allow the Bill to be read.

Iain Duncan Smith referenced a court case where (to cut a very long and convoluted story short, which risks oversimplification, but here goes…) the prerogative was used, a case was brought about the legality, or not, of the prerogative being utilised to manage the matter, the court made a ruling (which isn’t pertinent here as I’ll explain now) and Duncan Smith asked the speaker if he would be bound by the court ruling and the permissibly of the prerogative. Apologies if this is hard to follow, these things inevitably are.

The Speaker told the House that, in line with his previous statements, the Commons would not be bound by a court’s rulings, in essence, Parliament defines its own rules and makes its own determinations about whether or not there has been an infraction. It is not for a court to do so. This is the basis for allowing the Bill currently being debated, in long-accepted custom and understanding and is not in itself controversial.

So why did Duncan Smith ask this? The reason is…

It’s a trap!

The Speaker has just settled (and confirmed) the precedent that, should Johnson not adhere to the terms specified in the Bill — and Johnson claimed it was permissible through the executive’s the ability to execute under prerogative — then by the Speaker’s own words, this is not a matter for the courts. It is a matter for Parliament and Parliament alone to determine. So even if the Bill is passed into law and even if Johnson “broke” the law, in deciding where the “case” would be heard, the speaker has said that the courts don’t have jurisdiction. So Parliament would have to determine the outcome and any sanction. A court could not.

But of course, Parliament would be prorogued ! It can’t determine anything if it isn’t sitting. An MP (or MPs, or anyone else with standing) could bring a case in the courts against Johnson. But immediately, the government would have, if not exactly a defence, at least a possibility to delay court proceedings while the court determined jurisdiction (or lack thereof). See also my comment below about how the courts in the UK have signalled pretty loudly and clearly they are not willing to be “politics by another name”. The ruling against the proceedings to stop Parliament being prorogued today is more evidence of this.

This is what happens when you abandon conventions. You open up a Pandora’s Box. No-one can tell what might be in there. The government (Johnson) only benefits in this situation — ambiguity is their friend. Your typical Daily Express reader isn’t likely to be interested in this kind of finer detail. But they’ll nod sagely to a headline of the “Boris Takes on Our Parliament Gone Rogue!” variety. It’s the court of public opinion which will count in this, Johnson will at least have the ability to make out his argument.

And as vlade argued:

It is a point I have been making for quite a while – how does Parliament actually physically MAKE Johnson (or any other PM) obey it? And the answer is – it can’t.

It can lock it up in Big Ben (yep, BB, not the Tower), but that doesn’t mean it can MAKE them do something.

The only way Parliament can “do something” (non-legislative) is that it gets in a new government that would be (hopefully to the Parliament) more compliant. There is no other way.

If the Johnson says he’s going to ignore the law, then he will ignore it.

And as PlutoniumKun summed up via e-mail:

I’ve always been curious as to why terminology that is so familiar to Irish people – terms like ‘cute hoor’ and ‘stroke politics’ are so absent from UK discourse, when they apply so clearly here. Perhaps because it is assumed that such things only belong to the lower orders, and Eton Boys couldn’t possibly be anything but ‘nice but dim’ or ‘nasty and smart’.

But its clear that Johnson is what we’d call in Ireland a cute hoor – someone who isn’t particularly intelligent or thoughtful, and is quite stupid in some respects, but possesses enough native cunning to be able to outmanoeuvre supposedly more smarter people. The fluency in Latin and Greek is merely a posher cover on a very familiar type of operator. This also I think applies to people around him. And they are becoming experts in what in Ireland we’d term ‘stroke politics’, which is a lower form of ‘parliamentary manoeuvres’.

So I would not underestimate their ability to outwit the Remainers in Parliament, at least for long enough to get over the line.

In other words, having Parliament in the bizarre position of having a Prime Minister with no majority and lots of enemies, but not willing to toss him out via the normal means, of a vote of no confidence, leaves them with inferior fallbacks. And the opposition is still very much divided. So while the Brexiteers have made lots of own goals, and Johnson is entirely capable of scoring more, it is too soon to write them off for dead.

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