Writing About Brexit: a rebel Prime Minister

EdinburghEye on Ko-FiThis was first posted on Facebook on 26th September 2019, with support from my Ko-Fi network.

I didn’t get home from work in time to listen to Boris Johnson in the Commons. At the point when I switched on Parliamentlive TV, Boris Johnson had walked out a few minutes earlier: Anna Soubry was making her point of order.

Boris Johnson lied in his speech – he claimed that the EU were open to negotiating an alternative to the Northern Ireland backstop, and so a withdrawal deal could therefore be negotiated. As several Brussel-based journalists are reporting this morning, EU-27 don’t expect anything from the UK that offers a viable alternative to the backstop in keeping the Irish border transparent/preserving the Good Friday Agreement. They haven’t received anything, and they don’t expect to. But lies about Brexit and EU negotiation are normal from Tory ministers.

Boris Johnson also said, explicitly, he thought the Supreme Court were wrong to rule his prorogation of Parliament unlawful.

In reply to questions, he said that an MP’s feelings about the murder of Jo Cox (by a pro-Brexit right-wing activist who shouted “Britain First!” as he killed her) were “humbug” and he also said the best way to honour her memory would be to make Brexit happen. He referred to the Benn Act as the Surrender Act. He told another MP that if she thought an extension would resolve Brexit she had “another think coming”.

And when asked if once he’d failed to get a deal by 19th October, would he seek an extension to 31 January from the EU – which he is required by law now to do – he said a flat No.

Boris Johnson was rude, dismissive, and aggresive: he walked out rather than listen to the points of order following his statement and the follow-up questions. He explicitly declaed the UK’s Supreme Court wrong, and explicitly declared he’d break the law, and he dismissed concerns by MPs about threats of violence against them and their families.

I was listening to the debate after he left, and it struck me – even before I had looked up what Boris Johnson said and how he behaved – how quiet they were. There was a surprising absence of the kind of barracking that normally goes on – I think many MPs on both sides of the House were genuinely taken aback by Boris Johnson’s behaviour.

But today, in a debate on an urgent question on inflammatory language in politics, Sir Bernard Jenkins, gammon-Tory, suggested that people should just stop talking about Jo Cox or any other victim of right-wing violence as this itself inflamed debate: Maria Miller, one of Cameron’s ministers, suggested to Jess Philips that she should stop screaming. Boris Johnson has not bothered to attend the debates this morning. Whatever shame the Tories felt was strictly temporary.

This morning, listening to the debate on the urgent question about whether the PM would obey the Benn Act and write a letter to the EU requesting an extension if he can’t get a deal, the current Minister for Department for Exiting the European Union, James Duddridge, was asked multiple times for a yes / no answer to the question “will the Prime Minister seek an extension to 31 January from the EU” – as the Benn Act requires him by law to do – he dodged. Again and again his answer was something on the lines of “we will comply with the law” – not, as he was repeatedly requested, to say “yes” to the specific question.

I want to think everyone who bought me a Ko-Fi in the last few days and thus let me take the day off, because the impact of the debate was very different from reading a summary or a transcript.

The rebel alliance must not vote for a general election before that letter is sent.

Boris Johnson seems likely to either: Claim he could not get a deal because the EU were intransigent about the backstop, so we’ll just have to crash out in no-deal: Or, bring back to deal to the Commons that he claims is different from the May deal but which is basically the same deal as before including the backstop, and blame the Opposition for not voting for his deal. (Or he could do both!)

The effect is the same in either case: Boris Johnson won’t have a deal by 19th October, and he will be obliged by law to write the letter. Keir Starmer noted this morning that the text of the letter is written *for* Boris Johnson in this Act because Parliament doesn’t trust Boris Johnson to write asking for an extension in his own words.

Boris Johnson can avoid writing that letter only by resigning. But if he resigns, the monarch appoints another government minister to become Prime Minister – who is still legally obliged to write that letter. There could, in theory, be a Saturday Night Massacre of Tory ministers resigning until finally a PM is appointed who will be obey the law and write the letter.

But I don’t think that’s likely: clearly, the government thinks it has come up with a loophole. James Duddridge declined to say if they had asked for legal advice on this. (Geoffrey Cox provided the legal advice that prorogating Parliament for five weeks was lawful.)

Whatever the loophole is, Parliament can close it. The EU can offer an extension without actually having been asked – and they might do this if it’s clear a letter should have been sent but was obstructed by a lawbreaking PM. For this extension to be accepted, Parliament has to debate and vote to amend the Act of Parliament setting the date of departure.

I said yesterday that 17 working days is the legal minimum required for a lawful general election. We haven’t, in recent times, ever had a situation where a sitting Parliament was dissolved and a general election took place three weeks later: the Fixed Term Parliament Act requires 35 working days and I find looking up the current generic timetable provided by the Electoral Commission, that they require 25 working days as a minimum between dissolution of Parliament and polling day. There would be huge technical difficulties if anyone were to try cutting into that time (not least that in order to be a validly-nominated candidate entitled to have your name appear on the ballot paper, your completed nomination forms and deposit of £500 need to be with the Returning Officer before 4pm on the sixth day after Parliament is dissolved). So when I said “17 days” I was just plain wrong – one should always look up current guidance.

So it’s worth noting that Boris Johnson is already too late to hold a general election before 31st October – if Parliament were dissolved tomorrow, the earliest day he could have his general election is on 1st November.

This could work quite well for Boris Johnson, because at the time he would be supposed to be sending the letter to the EU, there would be no MPs.

During a recess or an adjournment, the Commons and the Lords do not sit, but Parliamentary business can be carried on. When Parliament is prorogued, no Parliamentary business can be carried on, but MPs are still MPs. When Parliament is dissolved for a general election, the Queen’s Government still exists, Prime Minister and ministers, but there are no Members of Parliament – there are only Prospective Parliamentary Candidates, PPCs, and there will be no MPs til after polling day. John Bercow will resign as Speaker on the 31st, and a new Speaker can’t be appointed til Parliament is sitting.

While the courts could be appealed to, to force the Prime Minister to send the letter, they will necessarily take more time to do so than even a Westminster debate and vote: and Boris Johnson has said he thinks the courts were wrong to rule against him. Geoffrey Cox said Parliament shouldn’t even be sitting. Jacob Rees-Mogg called the Supreme Court decision a constitutional coup. Would they all simply decide to defy the law and let the UK crash out in No Deal Brexit even if the courts ruled that they weren’t allowed to do so?

That’s a rhetorical question. I’ve listened to them all. I think they might. This could all be bluster and bluff and they wouldn’t actually hold their nerve, but even though Boris Johnson is a consistent liar and lacks courage or principles, he appears to be supported in this by his Cabinet. They could all get together and tell themselves that they’d win a general election after no-deal Brexit and nothing else would matter.

It’s even possible this is some grand strategy for the next general election, because they think that they will appeal to enough Leave voters to win by presenting themselves as People vs Parliament.

But:

We cannot afford to take the chance that they would follow through on their insistance that they’d break the law rather than prevent no-deal Brexit.

There cannot be a general election now until after 31st October, or – if it happens sooner – after Boris Johnson has resigned. So long as Parliament sits and the opposition to no-deal Brexit hold the majority, Johnson *cannot* prevent an extension to Brexit Day and cannot, in fact, do anything except complain loudly that he wants a general election and it’s not fair that Parliament continues to sit.

An unusual offer was made yesterday: the leader of the Opposition can call a vote of no-confidence any time he wants, but the Government offered (“for a limited time only”, Jacob Rees-Mogg said) to have the leader of any Commons party be allowed to call a vote of no-confidence – bypassing Corbyn and hoping that enough MPs would vote against the government to trigger a 14-day form-a-new-government period followed by a general election 35 working days later. (That would be a general election on 21st November – Parliament would be dissolved for the crucial week following 19th October.)

The SNP and the LibDems have both said that if the government sends the Benn Act letter sooner than 19th October, they’ll support a general election. Corbyn’s said he wants a general election just as soon as no-deal Brexit’s off the table. From everything the Prime Minister and other ministers have said yesterday and today, no-deal Brexit isn’t off the table until after the extension has been voted on and agreed to in Parliament.

Moving on, Jacob Rees-Mogg will be proposing, fairly soon, that “this House, at its rising on Thursday 26 September 2019, do adjourn until Thursday 3 October 2019” – to allow the Conservatives to have their party conference without 288 Conservative MPs having to decide whether they attend debates in Parliament or go to their conference.

On the one hand, there’s a certain kind of nonpartisan fairness in that Labour and the LibDems already held their conferences, and backbencher Tory MPs were no more responsible for the Government’s unlawful attempt to prorogue Parliament than the Opposition were; as the Supreme Court noted in its judgement, MPs do not vote on prorogation, they are informed of it.

On the other hand: the Conservative Party conference is not where the Tories make policy by members debating and voting. It’s purely a social space where Tory activists can get together with and hear from other activists, MPs, and ministers. And it’s only in Manchester, which is less than three hours from Parliament by train. And it’s bloody cheek for the Tories to ask to adjourn Parliament again after their party leader shut down debate for 10 days by unlawfully attempting to prorogue.

MPs are now voting. We’ll know soon.

Update: 289 MPs voted to adjourn (there are currently 288 Tory MPs): and 310 voted not to. Jacob Rees-Mogg is reading out the business for next week.

A Labour MP raised a swift point of order with the Speaker, who confirmed that under the current statutory framework – he emphasised this – it is now not possible for a general election to take place before 31st October: the earliest possible date would be Thursday 5th November.

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