August 30, 2019
The gloves are off - let the Brexit massacre begin
The gloves have come off on both sides. MPs are now plotting a strategy to take total control of the House of Commons, and anti-Brexit Lords have devised a strategy to frustrate a filibuster. The important question is not whether a legislative route is theoretically possible within the time limits - we think it probably is - but whether the rebels have the votes, and if they do, whether such legislation is effective. On the first, we don’t think they do. On the second, we are sure that it is not.
Rebels are on a steep learning curve. Some are still ignorant of the legal foundations of Brexit. We noted one suggestion yesterday in favour of making a no-deal Brexit illegal, which is of course impossible as the UK cannot unilaterally alter Art. 50. Among a series of bad options, the best is probably legislation to force Johnson to extend Brexit. The FT writes that there are between 20 and 40 Tory MPs who are considering voting against the government. There are also some 10 or so Labour MPs in Brexit supporting constituencies who would vote against another extension. The numbers are tight.
There is a lot of arm-twisting going on in the background - coupled with the implicit threat that a vote in favour of anti-Brexit legislation would most likely trigger elections and the certain deselection of Tory rebels. Tories and Labour MPs are both aware that extension is not a popular option in the country. The April extension brought victory to Nigel Farage’s party in the European elections in May. If parliament votes in favour of a law to extend, it is possible that Johnson would then risk a pre-Brexit election, with the support of Corbyn. We think he will probably do at least as well as Theresa May did two years ago, but with MPs that are committed to his Brexit strategy.
The former justice secretary, David Gauke, argued the prorogation had shifted views among Tory MPs who were previously sitting on the fence. They might now support anti-Brexit legislation. What speaks against it is the simple fact that we are not yet in Brexit no-deal land. If the Commons can pass no deal legislation in a week, then surely they can do so after prorogation too.
We noted a comment by Stephen Kinnock, who is not optimistic that the rebels can win next week’s legislative gambit. Nor would Jeremy Corbyn or another figure command the majority of the Commons to form an alternative government, although this option will no doubt be attempted if legislation fails next week. This leaves the return of Theresa May’s old withdrawal bill as the best way to stop a no deal Brexit. Labour should offer to support for this bill.
Simon Jenkins agrees with this judgement in the Guardian. We also agree that the old withdrawal agreement bill remains a good platform for a compromise.
Jenkins also makes an observation that will surely baffle non-Brits. He quotes a former supreme court justice saying that Johnson’s use of prorogation was unconstitutional but not unlawful - a category that does not exist in countries where the constitution is part of codified law. The rebels have launched a legal challenge against revocation in a Scottish court. Depending on the decision, the issue may go all the way to the Supreme Court.
The Remainers’ biggest weakness is a lack of an overall strategy that extends beyond the narrow confines of the House of Commons and its ancient rules. The single biggest misunderstanding in the Brexit process relates to the nature of Art. 50, which is EU law, not UK law. We were reminded of this once again yesterday when we saw an article in Prospect magazine, which compared the five-week prorogation to Hitler’s Reichstag fire. Apart from the fact that it is never a good idea to make casual Hitler comparisons, the comparison reveals a lot about the author’s exaggerated views on the role of the parliament. Art. 50 gives parliaments two specific rights: ratify a withdrawal deal or revoke. Prorogation will not restrict the parliament’s ability to do either of those things. The problem is that the UK parliament has turned the possibility of Brexit extension, outlined in Art. 50, into a unilateral national procedure. When you point this out to them, one hears that the EU would surely extend because it does not want to be blamed for a hard Brexit. We are sure that this is true in all scenarios.
Johnson could frustrate even a watertight extension bill by threatening to become a rogue member of the European Council, vetoing every decision that is put in front of him. If push comes to shove, the European Council is more likely to side with Johnson against the parliament, than vice versa, unless they have the confidence that the parliament can produce an alternative PM. This is why the rebels really need a new prime minister in place by end-October. Legislation to extend only works if there is at least some collusion from Number 10, as was the case with May.