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Richard Murphy: Brexit Yellowhammer Is Wrong, but That Doesn’t Mean We Should Ignore It

Summary:
Yves here. Even I am suffering a bit of Brexit fatigue. So many momentous things are happing that it’s easy to become desensitized. But some things, like the Yellowhammer “Reasonable Worst Case” document, turn out to be damp squibs. If you’ve been following Brexit, this document’s take isn’t that surprising, although it does have a couple of remarkable dot points on the first page that discuss bilateral deals with individual EU member states as if that were a realistic option. But as Lambert said, it’s unlikely to persuade true Brexit believers. Oddly, the press seems to be giving much more prominent play to Yellowhammer than to the proroguation or to the Scottish ruling against it. Per the Telegraph: The MPs who asked a Scottish court to overturn the prorogation of Parliament took on

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Yves here. Even I am suffering a bit of Brexit fatigue. So many momentous things are happing that it’s easy to become desensitized. But some things, like the Yellowhammer “Reasonable Worst Case” document, turn out to be damp squibs. If you’ve been following Brexit, this document’s take isn’t that surprising, although it does have a couple of remarkable dot points on the first page that discuss bilateral deals with individual EU member states as if that were a realistic option. But as Lambert said, it’s unlikely to persuade true Brexit believers.

Oddly, the press seems to be giving much more prominent play to Yellowhammer than to the proroguation or to the Scottish ruling against it. Per the Telegraph:

The MPs who asked a Scottish court to overturn the prorogation of Parliament took on Boris Johnson using a 300 year old law brought in at the time of William of Orange, dubbed the “Scottish Magna Carta”. A band of 76 MPs, Lords and lawyers won an appeal yesterday in Scotland’s Inner Court of Session in Edinburgh, using a case based partly on the Claim of Right Act, passed by the Scottish Parliament in 1689. The law enabled the Scots to forfeit James VII as their king and establish their sovereign right to choose a Government. It now forms a key part of the Scottish constitution and was used by MPs’ lawyers to argue that prorogation is unconstitutional.

Note that the Court of Session did not enjoin the Government’s action.

Recall that the High Court had determined that the decision to prorogue Parliament was purely political and thus outside court purview. By contrast, the court in Edinburgh decided that the Government was “motivated by the improper purpose of stymying parliament.” So the controversy is going to the Supreme Court.

Reader Reality-Based Lawyer was disconcerted by the logic of the High Court decision. By e-mail:

I think Paul Craig is regarded as the doyen of English constitutional law (such as it is), though of course I’m not an English lawyer. Nevertheless, this blog post contains the major points I made to myself while reading the English judgment as to the absolute non-justiciability of the decision to prorogue Parliament: https://ukconstitutionallaw.org/2019/09/10/paul-craig-prorogation-three-assumptions/ The English decision, as I’m sure you know, is at https://www.judiciary.uk/wp-content/uploads/2019/09/Miller-No-FINAL-1.pdf. I think the key paragraph is 41 (following on ¶40):

It is central to Lord Pannick’s submissions that we should explore the facts first, for the purpose of deciding whether there has been a public law error, and then turn to justiciability; and then in the limited sense of deciding whether “caution” should forestall intervention. We are unable to accept that submission. The question of justiciability comes first, both as a matter of logic and of law.

That I think means that justiciability is to be determined without reference to any circumstances or facts whatsoever, which in turn means that the government could prorogue Parliament immediately after an election for the five-year period of the Fixed-term Parliament Act, save for certain purposes such as raising revenues for the government. The shade of Charles II rises! Surely that can’t be right—that wasn’t what the Glorious Revolution of 1688-90 was all about, for it disposed of a monarch because it was unlawful for a Catholic to be a king. Wherever we are, this really is a constitutional crisis for England (Scotland appears to have a different view of its monarch; Northern Ireland’s ruling tomorrow will be interesting).

My reply:

My sense is a lot of the custom that amounts to the British Constitution assumed (just as US law in theory does) a level of good faith and fair dealing that is no longer operative. By any normal Constitutional standard, Theresa May should have resigned at least 4x, on every defeat of the Withdrawal Act + the censure.

Also the Fixed Term Parliaments Act was a horribly drafted piece of legislation and plays a part in the breakdown.

In other words, this is another manifestation of the political breakdown that reader David flagged early on.

As to the main chance, the UK and EU are talking, with the EU hopeful it can get Johnson to accept the so-called “sea border” option and sell Parliament on it as a new deal that gets rid of the hated backstop. But it isn’t clear things have really changed. From the Independent:

There is growing frustration in the European Commission’s Berlaymont headquarters over a lack of concrete proposals coming from London, despite claims from the UK government that talks have been “intensified”. EU officials are alert to the possibility that they may be, in the words of one, being “led up the garden path” by Mr Johnson’s team for the sake of giving the Tory leader an advantage in a coming election. One theory getting a hearing in the Berlaymont is that Mr Johnson wants to keep talks frozen, with the possibility of both a deal and no deal open, because the ambiguity would suit him during an election campaign.

And even if Johnson is starting to realize being Prime Minister during a no-deal Brexit won’t be any fun, it’s not clear how many degrees of freedom he has. From vlade:

Cummings IMO wants a massive disruption, which he sees as revolutionary opportunity. I believe he’d prefer NI gone and no-deal in the Britain than some sort of fudge to keep things similar to what they are.

If he gets defenestrated, that will open many possibilities. But as long a he controls Johnson, I suspect he’ll do anything to get a no-deal. Of course, we saw how Bolton and Bannon ended, so there’s no guarantee that Cummings lasts the weekend. That said, Farage is still in the wings, so even getting rid of Cummings is not a winning strategy (now that Johnson burned his bridges on the majority, and elections are more or less inevitable).

Finally, back to Yellowhammer. The document says that some fresh foods will be scarce and prices would rise, but that there won’t be shortages:

Richard Murphy:  Brexit Yellowhammer Is Wrong, but That Doesn’t Mean We Should Ignore It

This translates into “Short restaurants”. The fourth quarter is when restaurants make the most money, and they need that boost to tide them over though the lean winter months. Fast food restaurants are particularly rigid; it takes many months to introduce new menu items, not just for the testing but also to train workers. And how will high end restaurants adapt to limited fresh produce and spices? Put it another way: if a crash-out happens, be sure to go regularly to your local restaurants you like to have a drink to help keep them alive.

By Richard Murphy, a chartered accountant and a political economist. He has been described by the Guardian newspaper as an “anti-poverty campaigner and tax expert”. He is Professor of Practice in International Political Economy at City University, London and Director of Tax Research UK. He is a non-executive director of Cambridge Econometrics. He is a member of the Progressive Economy Forum. Originally published at Tax Research UK

The so-called Yellowhammer report is wrong. I can say that with absolute confidence. Every forecast is, and I’ve delivered a lot in my time, always with that caveat attached to them. But in my opinion that does not mean it is not important. That’s precisely its significance.

All it really says with certainty is four things. The first is that we do not know what will happen if we hard-Brexit. The second is that we can be sure that some consequences will be very uncomfortable, at least for a while. The third is that there is no known solution to the Irish border issue, whatever Conservative politicians wish to claim. And the last, and perhaps the most significant, is that whatever happens the uncertainty of Brexit will continue for a considerable time to come: any deal only leads to more negotiation. No deal just makes that next step harder, and potentially more drawn out.

I am not saying that worrying about particular drug supplies does not matter. Or that we should not worry about civil unrest, and so on. Of course those risks need mitigation. But precisely what those risks are does still remain uncertain. The points I make are, in the event of no deal, certain within the parameters I note. And of all these the last is the greatest: there is no end in sight.

And that matters. We have an election coming. This time there will be no avoiding Brexit. In 2017 it could be pretended that it was in the distance. This time it is not. And so it will dominate all campaigns, whatever other issues parties wish to add to the mix. And what voters will need to know is that unless they vote for Article 50 revocation then the nightmare, with which most are utterly fed up, will continue. Precisely for that reason, and whether readers here like it or not, this is why I think the LibDems will do well in England and Wales and the SNP will in Scotland. Both parties have broad bases. And both are offering ways out of the current situation.

The Tories only offer more chaos. The Labour position has logic to it. And at the same time if Fiona Bruce can tear it to shreds – and she did – then so too can anyone else. However logical it is to say that you will negotiate a new deal to put to a referendum, if you then say you will campaign against that deal the conviction that you will bring to the negotiating process has to be in doubt. And that’s the flaw in the Labour logic.

So, both major parties offer more delay, prevarication, and long term uncertainty as their core election offering. And that is not what the country wants.

The nationalists and Alliance vote will rise in Northern Ireland as a result.

The SNP will not sweep Scotland, but they will have a resounding majority there.

And the LibDems will hold many more seats in England and Wales than anyone might have thought possible a couple of years ago.

And Yellowhammer can be used to predict all that. All it says is we’re in a mess. What some parties will be able to offer is a certain way out of that mess. The only way to achieve that is to stay in the EU, and reform it, which I believe possible, because there is no human made institution incapable of being reformed: to claim otherwise is, very politely, to be absurd.

Yellowhammer draws battle lines. And our two main parties are drawing them badly.

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