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03 September 2019

71: Stopping a ‘no deal’ Brexit – walking like a zombie?

On taking over as Prime Minister, Boris Johnson vowed to take the UK out of the EU on 31 October 2019 ‘do or die’. Last night, he reiterated that in a statement outside No. 10, stating that ‘there are no circumstances in which I will ask Brussels to delay. We are leaving on 31 October, no ifs or buts’.

No pain, no gain

Johnson claims he can only force the EU to agree a revised withdrawal deal, particularly with regard to the Irish backstop, by making it absolutely clear that the UK is willing to leave without a deal if need be. He claimed last night that this strategy was working: his EU negotiating team were ‘making progress’, and that the chances of a revised deal were rising because the EU could now see that the UK wanted a deal, had a clear vision for its future relationship with the EU, and was ‘utterly determined to strengthen our position by getting ready to come out regardless, come what may’.

The Government has taken legislative steps to that end, such as making the European Union (Withdrawal) Act 2018 (Commencement No. 4) Regulations 2019 (SI 2019/1198), which brings into force EUWA, s1, which repeals the ECA 1972 (the Act which gives EU legislation domestic effect) on ‘exit day’. (Of course, EUWA, s20(4) also provides that the definition of ‘exit day’ can be amended by the Government, as it has been twice already).

The Government has also sought, and obtained, the Queen’s approval to prorogue (ie suspend) Parliament ‘no earlier than Monday 9 September and no later than Thursday 12 September 2019 to Monday 14 October 2019’, ostensibly, to allow a Queen’s Speech on 14 October, in which Johnson’s (new) Government would set out its new legislative program. Parliament had been expected to rise anyway for the Party Conference Recess on 12 September and to return on 8 October, so a maximum of 8 sitting days are being lost.

Suspending Parliament in the build-up to 31 October is controversial (a number of legal challenges have been brought, along the following lines), as it reduces the number of days MPs have to try to prevent a ‘no deal’ exit, something they have repeatedly voted against (ie in January, March and April of this year and, most clearly, in passing the European Union (Withdrawal) Act 2019, in order to avoid a ‘no deal’ exit on 12 April).

Fast lane

The Government’s actions have led MPs opposed to a ‘no deal’ Brexit, including a number of high profile Tories (such as Philip Hammond and David Gauke, both Ministers in the May Government), to move quickly to support Hilary Benn MP’s proposed European Union (Withdrawal) No. 6 Bill, which (if enacted) would further delay the date of Brexit. After a meeting with the PM this morning, the Tory rebels reportedly dismissed the PM’s claim that genuine negotiations with the EU are ongoing, or that progress is being made.

In order to introduce the No. 6 Bill into Parliament, backbenchers need to move fast to wrest control of House of Commons business from the Government. They need to:

  • pass this Standing Order No. 24 motion (an emergency debate motion) today (3 September) to take control of the order paper the following day;
  • pass a business motion to allow a new bill to go through all Commons stages tomorrow (4 September); and
  • pass the No. 6 Bill itself.

Bill No. 6 will then need to go to the Lords, who will need to pass it before Parliament is prorogued (potentially as early as 9 September).

The Bill takes a similar approach to the European Union (Withdrawal) Act 2019, by requiring the PM to ask for an extension to the Article 50 negotiating period to avoid a no-deal Brexit on 31 October. The Bill says:

  • if MPs haven’t approved a deal in a meaningful vote, or approved leaving the EU without a deal by 19 October, then the PM must send a letter (the form of which is appended to the Bill) to the President of the European Council which seeks an extension to Article 50 until 31 January 2020. If the EU agrees to the date, then the PM should agree to that extension;
  • if the EU proposes an alternative date, then the PM should agree to it, unless MPs do not approve that date;
  • the Bill does not stop the PM from agreeing an extension to Article 50 himself;
  • if an extension is agreed, then the Bill requires the SExEU (Steve Barclay) to publish a report on progress made on negotiations by 30 November 2019. MPs would then have five days to vote on an amendable motion to approve the report. If MPs don’t pass the motion approving the report – or the motion is amended – the Secretary of State is required to publish a further report by 10 January 2020;
  • the Bill requires the Secretary of State to publish further reports every 28 calendar days from 7 February 2020 until the UK reaches a deal with the EU – or the House of Commons decides it doesn’t need to; and
  • the Bill also amends EUWA 2018 to say that ministers ‘must’ amend the date of exit by statutory instrument, rather than ‘may’ amend the date of exit.

Some commentators have already highlighted that the requirement that the PM agree to the extension (in italics above) may cause MPs a problem. This is because of something called ‘Queen’s consent‘ which is required where a Bill interferes with the exercise of a prerogative power, such as the negotiation of international treaties. If a Bill affects a prerogative, a Government minister must explicitly confirm at Third Reading that the Government agrees that the Bill should pass. The Government’s refusal to indicate its approval is fatal for the Bill (as has happened four times before). EUWA 2019 didn’t require Queen’s consent because it only required the PM ‘to seek’ an extension; the No. 6 Bill goes further in requiring the PM to agree to one. However, had the proponents of the No. 6 Bill only mandated the PM to seek an extension, the PM would potentially be free to refuse to accept one offered by the EU.

Ultimately, it will be for the Speaker, acting on the advice of the Clerk of Legislation, to rule whether Queen’s consent is required in this case: he may rule that it is not, potentially on the basis that the prerogative isn’t sufficiently affected by an extension, or on the basis that EUWA 2018 (or the EU (Notification of Withdrawal) Act 2019, passed after the Miller judgment) has sufficiently ‘set aside’ the prerogative.

Running the situation

Johnson has threatened a General Election if MPs seize control of the Parliamentary timetable, in order to dissolve Parliament and avoid the No.6 Bill becoming law.

But it is not clear he can do so under the terms of the Fixed-term Parliaments Act 2011, which provides two mechanisms for having an election prior to 2022: either two-thirds of MPs vote for an early election, or the Government loses a vote of no confidence, with an election taking place if no alternative Government won a confidence vote within 14 days.

The first option seems unlikely: Opposition parties have indicated this morning that they will not vote in favour of an early election until the No.6 Bill, preventing a no deal Brexit (or similar) is passed. On the second, the PM would be taking a very big gamble if he told his own MPs to vote against him in a confidence motion, essentially banking on no other suitable compromise or interim PM being found. So the most likely outcome appears to be that the No.6 Bill will pass in the next few days, pushing a ‘no deal’ Brexit a few months away.

Would that be a disaster for the PM? Not really. He can then propose a vote in favour of a General Election, which the Opposition would vote in favour of, and then run a General Election campaign – one which he can claim he didn’t want – on a purely populist ‘People against Parliament’ basis, possibly with the cooperation with Nigel Farage’s Brexit party, and gambling on returning to Parliament with an improved majority.

If that majority meant he no longer had to rely on the DUP, it might provide the key to solving the ‘backstop’ conundrum: a return to the original form of backstop – so opposed by the DUP – putting a border in the Irish Sea.

But if he were re-elected with a slim, or no, majority, then we’d be back to square one. The Brexit negotiations (essentially, what form of deal might be acceptable to the UK Government and Parliament) would stagger on, not quite dead, but yet not quite alive, until the next ‘no deal’ deadline loomed.

‘Walking like a zombie, like a zombie’ (Jamie T, Zombie)

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