Donald Trump’s “Legal Strategy”

So here we are: it’s two weeks since the election, the votes have been counted (and in one state recounted), every news outlet of significance has called the election for President-Elect Biden and Vice President-Elect Harris, national leaders around the world have extended their congratulations, and the Democrats are even now announcing their picks for key White House posts. We’re all moving on to what happens next.

Well, not all of us. Trump – and those closest in his orbit – have persistently refused to concede what everyone already knows, he’s made an obscure landscaping firm in Pennsylvania world-famous (and frankly hilarious) and his campaign is seemingly launching a new lawsuit every few hours. I don’t even know how many at this point; twenty-eight? thirty? He’s sued about everything from improperly-distributed Sharpie pens, to allegedly deceased voters, to how many feet away from vote-counters his observers were allowed to stand (in a frickin pandemic), to what date late-arriving postal ballots were still allowed to be counted, to – in one notable case – not actually having any specific complaint to bring, but asking for a delay while they looked for one. And his lawsuits are getting knocked down pretty much as fast as he files them, but he keeps going.

So what gives? Is he actually trying to win the election by lawsuit? And… you know… is that even possible?

The short answers are: yes, that is exactly what he is trying to do; it’s what the press are generously calling his “legal strategy.” And… sort of? I mean, it’s not impossible, in the way that it’s not impossible, technically, that 2021 is the year I finally start dating Kate Winslet. It doesn’t actually break the laws of physics. But that doesn’t make it particularly plausible.

Let’s break this down.

The Presidential Election: A Primer

The thing is, the system by which the United States, every four years, elects their president is fantastically baroque, to the extent that calling it ‘democratic’ starts to strain the definition of the word (sorry, American friends, but I’m sure this doesn’t come as a shock). This is largely a product of the storied and exciting history of the country’s founding, which involved a great deal of careful negotiation between thirteen newly-independent colonies none of which wanted to cede too much influence to any of the others (and yes, the slave trade played a part in that). But it’s also, depressingly, at least partly by design – the electoral process having been a political football for most of America’s 244 years.

For starters, it isn’t one national election; it’s fifty state elections. Federal law stipulates that an election take place, and on what date; but the individual state governments take over from there, determining who gets to vote (some nine states permanently disenfranchise some or all convicted felons); when and how you have to register (including whether you can register on the day); whether you can vote early, or by post, and whether postal ballots posted before election day can be accepted if they arrive after (and how long after); how you verify your identity; where you can vote; where and when votes are counted; who gets to observe the count and under what conditions; whether and when recounts may occur; when and how challenges may be mounted and resolved and how the result is verified.

As you can imagine, this makes it all something of a minefield, not improved in any way by the fact that all of this is in a more-or-less constant state of flux. These rules are tweaked, altered or wholly upended from election to election by state legislation, citizen-initiated referendums, gubernatorial orders and court rulings; and inevitably, the confusion arising from this endless jockeying leads to challenges and counter-challenges afterwards (more on this later).

But we’re not done! Just because you’ve had the election, doesn’t mean the election has actually happened. Each state now needs to “certify” the results, confirming that they happened, that any challenges and recounts have been resolved and that everyone is satisfied. In most states, this is done by the Governor; in some, by the state’s Secretary of State. In a couple, there are other, weirder arrangements (like Michigan, where every county has its own special four-person committee – two Republicans, two Democrats – who have to certify the individual county, and then the state has an overall four-person committee to certify the collated results).

Each state has its own deadline for that: in Georgia, for instance, it has to be done by this Friday; in Pennsylvania by next Monday; in Michigan, the state board meets starting Monday (to give the counties time to certify), with a deadline of the 13th December to resolve any problems.

Once each state has certified the result, they appoint their electors. This is the most baffling part of the whole process, but almost certainly the one you’ve head most about, so I won’t go into it at any length. In short:

  • Each state is “apportioned” a number of seats in the electoral college by federal law, equal to their number of Senators plus their number of Representatives.
  • Each presidential candidate’s party appoints volunteers in each state who commit in advance to voting for them in the college.
  • Most states assign all their seats in the college on a winner-takes-all basis (Maine and Nebraska each assign two electors to the overall winner and the remaining seats by Congressional district).
  • The volunteers appointed by the winning candidate are thus formally invested as electors.
  • On the 14th December, the electoral college meets in DC and votes for their presidential candidate of choice, needing an absolute majority of 270 to win.

And only then has the election actually finally officially happened, and the new President-Elect been chosen.

With me so far?

The “Legal Strategy”

So where do the courts come in? How do you sue to win an election?

Well, for starters, you don’t sue to win the election. You don’t even sue to win in a state. You sue over individual votes.

You sue because votes were accepted too late, or too early; you sue because voters’ identities weren’t properly verified; you sue because an official didn’t do the job in a suitably impartial way; because machines didn’t work right; because military ballots weren’t given long enough to reach the US from overseas postings; because a polling station in a tent doesn’t count as a “structure” per the law; for whatever reason, really. Because the rules – changeable and capricious as they are – weren’t followed right. Or because they were followed, but the other guy’s saying they weren’t. You sue to have a recount, or to not have a recount, or to stop having a recount.

You sue, in the end, to set aside a stack of votes and say: these weren’t legitimate – or to point to a stack that were thus set aside and argue they were.

(This whole mentality seems utterly alien in Britain, where the counters go to extraordinary lengths to include votes, puzzling in the early hours over ballots marked with drawings of penises, or with the phrase “not wank” written in the relevant box. But each country to their own, I suppose.)

And then, if the result is close enough, and the excluded or included votes make the difference, the outcome for a state can change – and if the balance of seats in the electoral college is close enough, the whole country can change, as happened in the 2000 election (maybe; analysts are still picking over the bones of the Florida count, years later).

So is this what Trump is doing? Is the election close enough he can change the outcome?

Well… no, not realistically. Biden looks set to fill 306 seats out of 538 in the electoral college on December 14th. To deny him the win, Trump has to flip at least 37 seats (giving a tie that, under an even more convoluted rule that I don’t have the heart to explain, would end up going to Trump). He’s not about to flip California or Illinois (which Biden won by millions) and he already has Texas and Florida, so to change that many seats he has to change the results in at least three states, including Pennsylvania.

Even then, all the closest states have margins in the thousands or tens of thousands, and most of these law suits relate to hundreds of ballots. One of them (still unresolved, I think, relating to whether voters in different counties in Georgia received different degrees of help with “curing” improperly verified ballots) is estimated to affect 96 votes. Of Trump’s two wins to date, one threw out ten thousand ballots in Pennsylvania (where Biden’s margin is over 70,000) and one had no effect at all.

And that’s it. Two wins, to twenty-four losses.

Trump’s lawyers have come to court with no evidence, no witnesses and in one case with no actual complaint (the judge was, you can imagine, terribly impressed). One suit hinged on a scribbled PostIt note one of the Trump campaign said a vote counter had handed him before running away. One of them included 500 sworn affidavits by voters who said their votes hadn’t been counted, the first half-dozen of whom when questioned explained that they didn’t actually know whether their votes had been counted or not, they just sort of had a feeling. Two law firms have pulled out of a combined six trials, effectively bringing them to an early close.

(Important note here: lawyers don’t quit cases they know they’re going to lose. Losing’s part of the job, and any lawyer knows that prospective future clients are at least as impressed by loyalty and tenacity as they are by success. Lawyers do quit cases when their clients ask them to lie; they have a duty to the court, and don’t want to be disbarred. Read that how you will.)

The certification deadlines are looming; Trump has no evidence, no witnesses and no argument. The odds of him securing the wins he needs in enough states to make a difference before it’s too late are so slight as to be invisible. But he’s still at it, still filing, still demanding recounts. Why?

Well, partly because he’s a malignant narcissist who knows that as soon as he loses the protections of the presidency he’s going to jail. It’s an existential threat to him – if he doesn’t win, his life is essentially over.

But also, because it’s not actually the votes he’s after.

The Actual Strategy: Delay and Confound

The key thing about all these lawsuits is injunctive relief. In brief: “relief” is a catch-all term in civil law for “the thing the judge will do if you win,” including award cash damages, demanding the return of property, enforcement of a contract etc. The ultimate relief these suits are asking for, of course, is to throw out votes.

Injunctive relief is a request for a temporary ruling, to stop the defendant doing something until the larger case is settled: if I had a dispute with a neighbour over the ownership of a tree, for instance, I might seek an injunction stopping them from cutting it down until we establish whether they’re allowed to. And in each of Trump’s cases, his lawyers are asking for the same thing: time. To stop counting while the matter of observers is settled. To stop counting while we argue about Sharpies. To stop recounting while we ask about signature verification. It’s why they’ve demanded recounts, and then asked to stop the recounts – it’s not senseless; wasting time is the point. Shit, now that most of the counts are settled, they’re just plain asking to stop certification.

Why? Those deadlines I mentioned. The law says each state must certify by a given date; so what happens in the event that date is reached, and by court order the certification can’t be given? What happens if we get all the way to the 14th December and certification is still wrapped up in the courts? It’s not 100% clear. Do the governors (Democrat, in most of the states under debate) just go ahead and appoint electors? Do the state legislatures (Republican majorities, in most cases) get a go? Could they try anyway? Both? Neither? This is where the legal strategy really heats up.

A quick digression into appellate law: you can’t just appeal any decision you don’t like. Any court ruling depends on a) establishing the facts of the matter, and b) determining how the law applies. You can only really appeal the latter – the higher court will almost always accept the facts as found by the lower court and commit itself to interpreting the law – and most of these cases so far have fallen on the former, so any requests for appeal have so far been ignored. Everyone’s got very excited about Trump having a 6-3 majority of the Supreme Court, but the Supreme Court can only rule on a case that rises to it – if an appeals court further down the chain refuses to even hear a case, it can’t rise higher; and most of these cases have to go through two or three appeals to get there.

But this? A state that must certify according to its constitution, but can’t according to a court order? That’s unquestionably a constitutional matter. That’s Supreme Court territory right there. They might rule that the state must split its electors between the two main parties; they might rule that it must send two full slates of electors. Heck, they might rule that it can’t send any electors at all, although that’s unlikely.

However it goes, to get there, Trump’s team don’t actually have to win these cases; just draw them out long enough.

The Longest Damn Odds

But can they do it? Unlikely. They still have to get their injunctions, and in every case so far they’ve been told: they don’t actually have a good argument for doing so. No evidence, no witnesses, no valid complaints; and even if they had all of those things, there’s no rationale for stopping the electoral process unless they absolutely have to. Injunctional relief isn’t automatic: a judge has to consider whether the relief being asked for is lawful, what outcome best maintains the status quo until the case is resolved, whether the effects of the injunction would be later reversible if need be, that sort of thing; and as it stands, either delaying certification past the deadline or allowing certification to go ahead would have significant irreversible effects. Thus it is the court’s duty to resolve every dispute in as timely a manner as possible exactly so the deadlines aren’t missed and the question is moot – and so far none of these cases has taken very long to resolve.

In the end, they’re unlikely to get even one state to miss their deadline, much less the three or more they’d need. (Or many more – it’s unlikely the Supreme Court would just plum throw a disputed state to Trump; so, assuming they do something weird like split or double up the seats in the affected states as described, Trump pretty much has to do this in all six battleground states.)

So there it is. The “legal strategy” is ultimately questionably legal, and not terribly strategic. And it is, unless a whole shitheap of extremely unlikely events converge, going to fail. That’s not necessarily the whole picture – he’s also trying straight-up fraud, blackmail, threats, public incitement, whatever he can throw it – but this part, at least, is going to fail.

But fuck me, it’s going to be a tedious few weeks until it does.

Troupe-Style Play

This is today’s pen-and-paper RPG musing. Troupe-style play was Ars Magica’s* big innovation: instead of playing one character each, you maintained several characters, who would cycle in and out of play for various stories – including the GM. Groups could even maintain a “pool” of shared characters in minor roles.

In AM’s case, the premise was that the players were running a Covenant, a sort of wizard’s monastery, populated by the Magi themselves, their Consortes (non-wizard companions with advanced education, exceptional training, remarkable abilities or aristocratic connections) and the largely interchangeable Grogs. Magi had to stay home in their labs and libraries to progress in magical abilities, so there was an incentive to swap Magi and Consortes round from adventure to adventure; and the Grogs, though essentially expendable, could develop their own interpersonal stories, grudges and objectives, that could weave in and out of the story.

It’s a cool system, once I’ve always admired and enjoyed playing. So I’ve been thinking of some other setups this works for. Famously D&D’s Dark Sun asked you to create multiple characters, but only really as back-ups; they were assumed to be invisibly and unobtrusively tagging along in the background, ready to roll up when inevitably PCs got killed. I can’t really think of any others out there, though.

So I’ve written some.

The Agency

For mercenary/espionage/cyberpunk games. Every player writes up at least three characters with distinct specialisms (e.g. close combat, intrusion, sniper, pilot, hacker). For every character, also write an in-character CV, including a psych profile and an evaluation by a former team leader – you don’t have to reveal everything, but be honest. Every player also roughly defines a “Director” character (Captain, Board Member, Mr. Johnson, etc.); this character doesn’t actually need a written-up sheet, just a name and a sketchy idea of their personalities.

Before every adventure, the GM puts a handful of mission dossiers on the table, along with the CVs, and the players – as their Directors – argue out which mission to pursue next (this choice can absolutely affect the overall campaign arc) and which agents to send on it, based on their CVs. You then play the actual adventure with the character chosen for you in committee.

What I really like about this is the ability to throw the classic TTRPG one-of-everything “omni” team out the window, from time to time. This is a stealth mission; what we need is three intrusion specialists and a hacker! This mission is a simple sweep-and-clear; just give me all your heavy-weapons guys! The Directors’ meetings also allow the GM to run a two-level game, where the Directors are gradually embroiled in a sprawling story arc that involves conspiracies, secrets and high-level politics, while the actual grunts in the field only ever get the vaguest notion of what’s going on.

The Writer’s Room

For any genre, preferably with a quick-and-dirty character creation system. Every player creates an initial character as usual, and also roughly defines a “Writer” character, who is a writer on a TV show. At the start of every adventure, the GM (as the Network Executive) leads a discussion about the coming season, planning story arcs and arguing about how to improve the “ratings” (you don’t have to stick to these planned arcs – things change, that’s Hollywood, baby) and whether any characters should be “written out” (but don’t “write out” a new character at the first meeting!) or new characters introduced to improve “appeal.” Old characters can be “written back in,” of course, even if they’re dead – with a little TV magic.

This is a great format for people who don’t take shit all that seriously, enjoy TVTropes.com and can think quickly. It’s silly and high-concept – you can even, with GM approval, give the Writers the ability to directly intervene during play in a similar way to the Luck/Karma systems used in some games.

The Family

For political games (including supernatural games like Vampire or Amber) that suit a time-jumping “chronicle” format. You play members of an extended family – a crime family, merchant clan, ruling family of a city, etc, – playing very long games with the power blocs of the setting. Create two or three characters, typically a mover-and-shaker in the family (your main character in the adventure), an elder who’s become less active but still gets respect as an adviser, and a child or young adult not yet schooled in the family’s objectives. Crossover with other players – your elder character could be Annie’s sainted aunt, while your younger character is Bob’s stripling son.

After each adventure, age everyone on a bit – kill off a couple elders, age some of the older movers-and-shakers into elder status, grow a couple of the kids up to main player status – and roll the campaign on. Embrace “flashback” digressions from the main campaign, where you revisit generations past to flesh out history and add context to current events (and revive beloved characters now gone the way of dust).

This is a good one for people who like to write journals and background stories for their characters. You’re working together to write an epic, and can think on very long scales, planning little dynasties-within-dynasties and play out power plays within the family.

League of Heroes

For superhero games. Every player writes up as many characters as there are players: one Hero for themselves, and one Support Character for each other player’s Hero. So, in a four-player game, you might play your own Hero, Annie’s Sidekick, Bob’s love interest and Charli’s clueless friend; while Annie plays her own Hero, your coworker, Bob’s Sidekick and Charli’s love interest; Bob plays his own Hero, Charli’s Sidekick, your friendly priest and Annie’s rival lawyer; and Charli plays her own Hero, your Sidekick, Annie’s old schoolfriend and Bob’s friendly cop).

Play runs in Seasons. Everyone gets one Solo Adventure per Season (ie. where you play your Hero and all three other players play your Support Characters), interspersed with occasional Team-Ups and Crossover Events where various mixes of Heroes, Sidekicks and other Support Characters join forces; at the climax of every Season is the Full Crossover, where all players play their Heroes (Avengers Assemble!).

This leans into the structure of superhero comics, of course, and incidentally offers a solution to the overpower problem (i.e. that to a reasonable superhero team, only earth-shattering threats are a real obstacle, and you don’t want every adventure to be an earth-shattering threat). Also gives a direct mechanic for allowing each player to shine.

Other Ideas?

Any other ideas? What sort of troupe-style games have you run/might you run?

_____
*Up to Third Edition; they pushed back towards traditional party-style play in later editions, with troupe-style play mentioned as an “optional” approach.

Breakin’ the (International) Law

Okay, time for a brief return to Brexit commentary. Hello again, everyone!

So what’s going on right now? Why are our government talking about how breaking international law is Actually Good? What’s this all about?

So there’s a fair bit to answer here, and a lot of it depends on how much you’ve been following over the past few years. I’m going to assume no knowledge, so some of you may need to skip the first bits.

Northern Ireland. If you don’t already know the history, I don’t have the time or space to do the topic justice here, but the extremely potted version is, there’s a bit of Ireland (also known as the “six counties”) that for complicated historical reasons is home to a narrow “Unionist” (i.e. wants to stay in the UK) majority, and which when the rest of Ireland became an independent republic in 1921 thus remained in the United Kingdom. But it also has a large “Nationalist” or “Republican” (i.e. wants to join the Republic of Ireland) minority, which has agitated for reunification ever since. Relations between the two populations have been strained, regularly spilling out into the widespread violence known as “the Troubles,” for decades, sometimes exacerbated by the UK government e.g. sending in military forces. There’s nothing to be gained by talking about whose fault all this mess is (the English, it’s definitely the English); the point is that the situation exists, and there’s no easy way now of solving it to the satisfaction of all parties.

The Common Travel Area. Peace in Northern Ireland has been slow in coming, but a big step forward was the establishment, around 1952 (although not codified until ten years later), of what eventually became known as the “Common Travel Area,” a region encompassing the United Kingdom, the Republic of Ireland and the Isle of Man in which travel was relatively free and unimpeded. It meant that Republicans in the north could travel freely to the rest of Ireland, while Unionists could travel freely to the rest oft he UK. This wasn’t much – Republicans in Northern Ireland were still in practice ruled by Westminster, and still very unhappy about that, and the worst of the violence was in fact still to come – but in many ways it paved the way for future peace progress.

Joining the EU. Ireland and the UK joined the European Union on the same day, in 1972 (joining the EU, or “accession,” has to be done at certain dates around European Parliament elections); this spared any complications around the CTA – since the whole area went from being outside the EU to being inside the EU at once – and made it a trading bloc to boot. Now, not only could the Northern Irish travel freely between the UK and the Republic of Ireland, they could buy, sell, work and trade wherever they wanted, without a lot of paperwork and tariffs getting in the way. There were still frequently British Army blockades in the street, but life was moving on.

The Good Friday Agreement. All this came together in 1997, when – after a lot of work by both the British and Irish governments, and with a lot of support by the EU and the USA – the various factions in Northern Ireland were brought to the table to agree a compromise. The region would, on paper, remain in the United Kingdom, under Westminster rule; but most day-to-day decisions would be devolved to a directly elected regional parliament. Leadership roles would be strictly shared between the two factions, with an opposition Republican shadowing every government Unionist minister (and vice versa), and each side able to effectively block the parliament from meeting at all by refusing to sit. And a new cross-Ireland committee, made up of ministers from both Southern and Northern Ireland, would manage issues of common concern (mostly just travel infrastructure and the environment, but it’s still a powerful gesture). It’s a terrible, clunky arrangement under which Stormont has been closed for business for one year in three, but it was peace, and it worked. The GFA is a big deal, backed by a lot of diplomatic capital.

So far, so good, right? Peace in our time.

Brexit. But then comes Brexit, and a big mess. Joining the EU in 1972 was okay, because both Ireland and the UK joined at the same time; but unless we both go at the same time,* leaving isn’t going to be as simple. You see, for the EU to have such free, unfettered movement within it – movement of goods, movement of people – there have to be controls around it. (In simplest terms, for Bulgaria to let goods come in freely from France, Bulgaria has to have confidence that France isn’t letting goods into France that Bulgaria wouldn’t trust in Bulgaria, so France and Bulgaria both commit to check all goods coming in from outside the EU to a commonly agreed standard.) So from the EU’s point of view, post-Brexit, we’re either in the loop (EEA or equivalent), with freedom of movement and agreed standards; or we’re out (“Canada” or WTO terms), with neither. And if we’re out, there needs to be a border across the island of Ireland, and we tear up the Good Friday Agreement, and at some point – maybe not right away, but soon enough – the Troubles start again. Because the fathers and grandfathers of boys who’ve grown up in peace still know where the guns are hidden.

And nobody wants that.

The Withdrawal Agreement. So let’s talk about the Withdrawal Agreement! Specifically, how we’ve absolutely left the EU, but people are still talking about “when we leave the EU” in January. You see, no-one’s left the EU before (indeed, it was expected that no-one ever would), so we essentially got to be the guinea pigs for a new procedure. This amounts to leaving the EU in two stages: in the first, we announce we’re leaving and have a two-year (plus extensions) window to negotiate a temporary arrangement called a “withdrawal agreement,” describing the immediate relationship upon leaving; in the second, we use the time provided by the withdrawal agreement (plus extensions) to negotiate the actual final relationship once the temporary arrangement ends. This prevents us from sticking one foot out the door and being a dick until we get what we want; we can’t start negotiating a new trade deal until we’re actually out.

So the withdrawal agreement had a few basic requirements. It had to, at least initially, ensure continuity: we agree to keep abiding by EU rules, they agree to keep giving us access, at least for a few years. It had to spell out a timescale, and set the terms for extending the period if necessary (here, bafflingly, May deliberately hobbled us; a wholly inadequate window with one chance at a short extension, which had to be taken six months before the window ended, before we knew if we needed it). It also included an aspirational document describing the kind of future deal we’d like to get, although being nonbinding that was less important (which didn’t stop it being a major bugbear in Westminster). And, from the EU’s point of view (the Republic of Ireland being a member state, with a veto), it absolutely had to preserve the Good Friday Agreement.

The Irish Backstop. The EU’s solution was simple enough: leave Northern Ireland in the EU. That is, it’s still in the UK, it’s definitely leaving the EU, but NI specifically agrees to continue adhering to EU standards and regulations, and requiring relevant standards on goods coming into the region from outside (including from the island of Great Britain). And we continue allowing free travel across the CTA. The rest of the UK’s free to diverge from EU standards as we wish, but if we do, there’s checks on goods coming into Northern Ireland. It wouldn’t even have to be a permanent arrangement, that’s why it’s called a “backstop”; it would only apply until the UK and the EU work out a solution, which the Tories repeatedly insisted would be forthcoming. It’s an inelegant compromise, but everything about Northern Ireland is an inelegant compromise.

But Theresa May didn’t go for it; she depended on the Unionists for her majority, and they refused to accept even the possibility of a border between Britain and Northern Ireland. She went all the way the other way; what if the backstop included all of the UK? We’d commit to the whole country adhering to EU regs and allowing freedom of movement, indefinitely, unless and until we found some sort of technological or administrative solution that preserved the GFA. Well, the EU liked that well enough, but now the Tories were in an uproar; the whole point of Brexit was to end immigration and throw off the red tape! Her deal was shot down three-to-four times in Commons and she was forced to quit.

Enter Johnson. With a great deal of fanfare and much muttering about May’s incompetence, the new Prime Minister went back to the EU and… agreed to the original proposal. Northern Ireland would continue to adhere to EU regulations, would retain full freedom of movement, and if necessary a border would appear between Northern Ireland and the rest of the United Kingdom. He then, because this is what he does – it’s all he ever does – lied about it to Parliament and to the British public. The new deal was some sort of magic potion; it would give us all the access we need, yield nothing to the dirty Europeans, and we’d all have tea and crumpets forever. He was throwing the Unionists straight under the bus, but he didn’t give a shit. All he needed was an election win with a big enough majority, which he got.

The EU shrugged and signed the treaty we’d agreed: we had, in the end, an eleven-month transition, with an extension we did not intend to use (and in the event, did not use), at the end of which Northern Ireland would remain, in effect, permanently within the EU until such a time as we found a better solution.

The Charge to No-Deal. And so we started negotiations. And by “started,” I mean “didn’t bother with.” We’ve spent the past seven and a half months fucking around, posturing and chest-beating, demanding ridiculous nonsense and ignoring all attempts to deal seriously. At this point, it’s clear Johnson either actively wants no-deal (and yes, I know the hedge fund conspiracy theory, I can explain why that’s not hugely relevant if you like), or genuinely thinks he can bluff the EU into submission (which demands him basically not understanding them), or just doesn’t care (bingo!). No-deal is what his electoral base wants, and that’s all he cares about.

But What About Ireland? But it’s occurred to him now that the Irish Backstop in the Withdrawal Agreement – the clause and the treaty that Johnson negotiated, forced through Commons, made his MPs pledge to support, campaigned on, won an election on and signed – is actually going to come into effect. And that clause, because this is what a backstop is, comes into effect even if we end the transition with no-deal, and is then permanent, and has no mechanism to negate it if we change our mind later (the ERG tried plenty hard to make that happen, but no dice). And he’s realized it might not play well with the all-important electoral base. We were going to get everything we want! With booze and Curly-Wurlies! He has to do something about it.

The Internal Market Bill. And that something is pissing on the treaty he negotiated and signed. The Internal Market Bill is a largely pointless proposal about managing movement of goods within the UK, but which includes two paragraphs basically saying, “…and we can rip up the Withdrawal Agreement if we want.” (Actually, it goes a bit further to that, because it also has a line saying, “…and if we do, it can’t be challenged in the courts,” which is just fucking churlish, the big wet.)

And it’s had its first debate and vote in Commons, and passed by nearly eighty votes. This, in itself, is not unusual; even if there’s substantial opposition within the Tories (and it looks like there is), the general convention is to let it pass this stage so they can fix the perceived flaws in the bill in the next stages, committee and review.

International Law. This is a big deal. I mean, a big deal. And to explain, let’s talk about international law. Now, if you and I, theoretical person reading this, entered into a business agreement, we could leave a great deal unsaid. We wouldn’t have to spell out our respective rights to review each other’s accounts or scrutinize each other’s processes, we wouldn’t have to discuss how to dissolve the agreement further down the line, we wouldn’t need to explain penalties for breach. Some contracts do indeed discuss those things, but we wouldn’t need to; because the contract exists within a larger legal framework – the law of England and Wales – and those rights and procedures are already provided for. We can appeal to laws protecting trade and transactions, we can sue each other, we can even make a criminal complaint, in extremity.

Countries don’t have that luxury. If one country breaks an agreement with another country, they can’t then go to the Super-Government and ask the Country-Police to arrest each other (I mean, there’s the World Court and the WTO, but let’s be serious). So treaties have to spell out all of this stuff – dissolution, penalties, the whole shebang – and the only thing that makes it all work is trust; and the only way to build up trust is to stick to the agreements you’ve made.

And like, I’m not going to get misty-eyed about the United Kingdom as an exemplar of honest dealings and integrity; we’ve fucked people over plenty in our time. We’ve done the gunboat diplomacy thing, we’ve plundered other countries, we’ve reneged on promises. But having grown rich on the proceeds of our asshole years, we now try to pretend they never happened, and for the past few decades we’ve invested a great deal into the idea that we’re the grownups of international diplomacy. We’re good at it: we make shrewd deals, we arbitrate deals between other countries, and we keep our word. It’s really all we have left since losing the Empire. And Johnson has pissed it entirely up the wall.

Jeopardizing Northern Ireland, Jeopardizing an EU Deal, Jeopardizing a US Deal, Jeopardizing… Brexit? This goes beyond Northern Ireland. I mean, a return to the Troubles would be a historic, catastrophic failure, a senseless loss of life and peace for no return and an indelible mark on the memory of whoever was responsible for it. But it’s also just the beginning of our problems.

First off, at some point we have to make a deal with the EU. No-deal or no-no-deal, they’re right there next to us, there’s half a billion of them and they buy almost half our output. We need to make some sort of deal. So what do they say to the country who, less than eight months after signing a treaty with them, passes a law allowing us to ignore it? Why would they agree anything? We’ve explicitly told them we can’t be trusted.

Secondly, what about this hot US deal we’re going to sign? They were the biggest third party in the Good Friday Agreement; there are more Irish-Americans than there are Irish people, and they care a great fucking deal about that treaty. What sort of deal are they going to make with the country that kicked off the Troubles again, even if we did agree to buy chlorinated chicken and hormone-soaked beef?

Thirdly, there’s everyone else. That’s what the Brexit deal was, right? The freedom to sign treaties with every country in the world. We’ll make great new deals with everyone! Tim-Tams from Australia, Stilton to Japan! But why would anyone trust us? All sorts of Cabinet ministers, including the Attorney General and the Lord Chancellor (both of whom swear oaths promising to uphold the rule of law) have stood up to explain that this is a special case† and everyone will be totes understanding, but that’s not how that works. Remember that bit above about how in international law there isn’t anyone for you to go to if the other guy breaks a deal? That’s the problem; you only get a deal if you can be trusted, and if you’ll break that trust for a good reason, you’ll break it for a bad reason. There’s no special cases, there’s no “specific and limited.” If you’re the sort of country that tears up treaties, you don’t get nice treaties.

It’s A “Strategy.” But surely this is just a strategy, right? He’s showing strength, threatening the EU with noncompliance so they’ll come back to the table. I mean… maybe? But if so, it’s a bad strategy. We’re not the stronger party here, we don’t have the upper hand. The threat to peace in Northern Ireland is our only leverage, and even if we didn’t have to break international law to use it, it’s an awful threat to use, because it makes us look like utter dicks. And as it happens, we do have to break international law to use it: right now, the only reason for them to come to the table is to protect Ireland and we’re telling them, in so many words, they can’t trust us on any deal we make about Ireland. And shit, even if we don’t use it and we somehow persuade the EU to make whatever deal it is we want (not clear in any way, to be honest), the damage will already have been done because we’ll have already shown the world we’re willing to break our treaties just for leverage. Shit, even if Parliament somehow stops Johnson, the damage may already be done; we may find no-one is willing to talk to us until after he’s out of office, if then.

So Can This Thing Be Stopped? Unlikely. An eighty-seat majority is a pretty powerful thing. There are and will be rebels, but probably not enough to stop it – or at best they may get a purely notional amendment like Bob Neill’s in, which will make no difference (he wants to add a Commons vote to the ability to tear up the treaty; it’s like flicking the safety catch on a loaded revolver so it’s “not dangerous anymore”). Our best chance is probably Lords, who are absolutely ready for this fight, and Johnson knows it.

The Lords. Here’s where the Salisbury Convention comes in. Proposed in 1945, the Salisbury Convention (it’s not even an Act, just a sort of “guide to fair play” spelled out in a speech by Lord Salisbury that at some ineffable point just sort of became a binding rule) holds that, while the House of Lords may seek to delay or modify it, they won’t actually vote down any measure that fulfills the Government’s manifesto pledges. That is, if a party promises the British Public, in a general election, that they will do a thing, and the British Public votes them in, then the Lords won’t interfere with them doing that thing.

And it’s hard to think of any measure further from fulfilling the Government’s manifesto pledges than a bill that exists purely to undo a treaty that the Government campaigned on almost exclusively. I mean, this is it, this is the “oven ready deal” he hammered away – and, as aforementioned, literally demanded his MPs pledge in writing to support – for the whole damn campaign, and he’s proposing a bill to tear it the fuck up. You can be damn sure the Lords are going to fight it.

And Johnson’s almost ingenious riposte, today, is to actually lean into the fact he was lying for the whole campaign! He’s essentially said that since he lied in all his speeches that there would be no border between Northern Ireland and Great Britain, then in fact passing a new bill to fuck off the treaty he was lying about is fulfilling his manifesto pledges. Which, if nothing else, shows a supreme fucking brass neck, but I don’t think it’s going to impress anyone.

So yeah, that’s what’s coming up. Committee stage is ongoing until Tuesday, then review stage after that; there’ll be a shitload of speeches, we may be lucky and Ed Miliband will be allowed to shred Johnson a few more times, which will achieve nothing but be personally quite gratifying, Bob Neill’s useless amendment may be passed. The bill will then proceed to third stage and pass. The fun stage is in Lords sometime thereafter.

And that’s what’s going on with the Internal Market Bill.

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*I mean, obviously there are Tories saying it like it’s an obvious solution and the Irish are just being awkward. Obviously.

†Sorry, “specific and limited.”

Not Adieu, but Au Revoir

I don’t want to spend all day lingering over Brexit, but I also think I won’t serve any good pretending it isn’t happening, so this is my one post about it.

This was pretty much inevitable from the 24th June 2016. I argued, campaigned, prayed and educated in the hopes it could be changed—and we came closer to that goal than I thought possible—but I don’t think I ever really believed we were going to stop it. The lies and illegality of the referendum and the factionalism of both Labour and the Remain movement aside, the political weight of a referendum is hard to overcome; that’s why bad actors like them so much. It’s happened, now, and the focus should be on the future.

People are going to suffer. Not right away, since we’re leaving with an exit deal in place (perversely, the best thing that could have happened for Brexit was losing the fight for a “clean break,” since starting tomorrow the Brexiters are going to start banging on about how mysteriously it hasn’t immediately gone horribly wrong), but people are going to suffer. Ironically—tragically—some of the people who are going to suffer the most are also some of the people who prayed hardest for this to happen.

That will give me no satisfaction, and I beg you not to gloat or rejoice when it occurs. Because most of the people who are going to suffer voted—and hoped with every fibre of their being—to stop it; because many of the people who are going to suffer are the vulnerable, the excluded, the marginalised, and they deserve only our empathy and our kindness. But also because, whether they called for it or not, everyone who suffers is a human being. Be gracious in defeat, not by “getting over it” but by fighting for everyone’s dignity and humanity, including those who hoped for this.

It’s not over. I know, not as an article of faith, but as a cold, rational assessment of the facts as I know them, that we will be humbled and impoverished as a nation. And I’ve seen how a new movement of open-minded, optimistic Britons has sprung up and organised. Between those two facts, I know that a few years from now—not less than five, not more than twenty—we’ll be returning to the fold, though that’s small comfort now.

But our fight, as of this moment, isn’t to make that argument, but to hold our vindictive, cruel, greedy, triumphalist, nationalist government to account. Whatever you’ve previously thought of the Conservative Party in times past, whatever you’ve admired about them, they’re now under the sway of charlatans and monsters, content to appeal to the very worst impulses of society. And those men have power, now, and dangerous, poisonous ambitions, and they know their base is too delirious to care what they do, and they believe their opponents are too despondent to notice. They’re expecting the longest, wildest political honeymoon imaginable, and they’re going to exploit that as much as they can. They’ve announced more cuts to the poorest councils, more damage to the civil service; they’ve got their eyes on the courts next. Watch them, shout about what they do. Make sure, when they do the shit we can’t stop them doing, that it at least doesn’t go unnoticed.

Care for your friends, your family, your neighbours. Shit—for strangers, for people in the streets. They’re going to need it. Care for yourself, too; it’s going to be a long road.

I know—though I still struggle to see why—that a remarkable number of people turn to me for analysis and education, and I’m not going to give up on that just because this fight is over. I’m not sure what exactly I’ll talk about, but I’ll talk about things as I see them. That seems to be what I have to offer.

Take care of yourselves. I see you.

Things Fall Apart III: Mere Anarchy…

So what the fuck just happened? What happens next? Is Johnson going to jail? I hear he might go to jail. Is there going to be a referendum? Do the ERG and DUP not love each other anymore? Help!

Okay, let’s do this.

The Deal

So we got the deal and it’s a bit of a stinker. May’s challenge was to balance ERG demands to leave the Customs Union and Single Market and pursue a freewheeling, deregulated “Singapore-on-Thames” model for the economy with a) the EU’s demands that any deal protect the Good Friday Agreement and b) DUP’s demands that Northern Ireland remain fully in the UK. Her agreement largely preserved workers’ rights and environmental protections permanently, and created a transitional period that kept us largely in the CU & SM for a year and a half and for as much longer as it took to solve the Irish border problem—but allowed us to go on our way if we ever solved it (although we probably never would).

Johnson’s solution, arrived at with much fanfare and fuss, was to just bin the DUP. Northern Ireland became a permanent enclave in the EU, with a weird system of double-customs (in which NI is technically in the UK customs region, but collects customs as though it were in the EU, with individual businesses able to claim back the difference once they’d sold their goods to the public) as a figleaf, and a notional power to get out of the arrangement with a vote in Stormont that could be effectively vetoed forever. In exchange for which, he binned workers’ rights and environmental protections (moving them from the binding Withdrawal Agreement to the non-binding Political Declaration, the statement-of-intent for the future negotiations) and considerably watered down integration.

Realistically, it made no-one happy, but Johnson was perfectly content for it to fail and to crash out of the economy anyway, so it’s essentially win-win for him.

The Motion

Which is where the Benn Act comes in, which forces him to ask for an extension (allowing more negotiation time, a fresh election, a second referendum or whatever else) if no deal is agreed. A “source at No. 10” (Dominic Cummings, it’s always Dominic fucking Cummings) breathlessly announced a host of tricks and knaveries that would allow Johnson to get around the Act. None of them would have worked; they either tried to use laws in ways they don’t work, or weird legal talismans that don’t do anything at all, or would leave Johnson in contempt of Court, Parliament or both.

But one thing might have done. If Parliament had voted to accept the deal, Benn would have been fulfilled and Johnson would be free of his obligation to extend. But the Agreement would still not be in place; it would still need to be given effect by an Act of Parliament. So the ERG could agree to the deal on Saturday, get past the deadline for the Benn Act, then subsequently defeat the Withdrawal Agreement Bill, putting us back on a heading to crash out.

Oliver Letwin, the unexpected hero of Brexit, foresaw this threat and proposed an amendment to Saturday’s resolution. Instead of agreeing the deal, it would indicate that Parliament had “considered” the deal but withheld approval until the enabling Act was passed.

The Vote

The Government collectively shat themselves, spending much of Saturday morning trying to pressure Letwin into withdrawing. He didn’t. The motion passed, narrowly, with—of all people—the DUP’s support. (Word is, they consulted, last week, not with NI businesses and community leaders, but with the paramilitaries; it turns out there are no bribes big enough to outweigh the threat of having your kneecaps shot off.)

The BBC reported that the Government “withdrew” the motion, but that’s a misunderstanding (I hope; it would be disappointing if it were a lie). When a motion goes to a vote, the Speaker asks if anyone’s opposing it; if they are, he calls a “division,” the doors are locked and everyone tromps through to the lobbies, but if no-one is, the motion passes without a division. And if an amendment changes the original motion to such an extent that the original motion has effectively been defeated, it’s usual not to oppose (since the vote for the amendment effectively settled the matter anyway). That’s what happened here; Rees-Mogg decided not to oppose and the amended motion passed without division.

So the withdrawal was stymied in the most politically neutral way, by putting the decision off until later, forcing Johnson to ask for an extension.*

Extension

And after all those shenanigans, and announced plans to trick and-slash-or evade the Benn Act? Their master plan was to send the extension but not sign it, which is meaningless. A signature is not, in fact, legally required for the request to be received. He also sent a covering letter saying, “This is Parliament’s request (i.e. not mine),” which is meaningless. And he also sent an accompanying letter saying that he didn’t think extending would do any good, which is meaningless. What happened is Johnson caved. He requested the extension, after repeatedly swearing he never would.

Because to do anything else would have meant going to jail. It would have been trying to frustrate the intent of the Benn Act. You see, law less often involves tricksy loopholes and Simon-saids than you might think (except tax law; tax law does that shit all the time). A case in 1968, Padfield v Minister of Agriculture, established that a Minister of the Crown using a prerogative power—even if he does so 100% in the letter of law—to frustrate the clearly discernible intent of a law, has done so unlawfully. His letter, saying “I don’t think this will do any good,” is just about, by the skin of his teeth, Padfield-compliant, but to say anything stronger than that would have been unlawful, and would contradict averments he’d already made to the Court of Session in Edinburgh, putting him in contempt of court.

So What Now?

Well, first off, Rees-Mogg announced they would be tabling a “meaningful vote” on the deal. This is another attempt at chicanery; Saturday’s vote was a resolution of the House on the deal, whereas the “meaningful vote” is a specific mechanism created by the European Union (Withdrawal) Act. It’s stupid; it’s exactly the same vote on exactly the same question, and not only breaks the rule against Parliament being asked to consider the same question twice in the same session, it also attempt to directly overrule a specific decision made by the same House only two days ago.†

Bercow will almost certainly shoot it down. And if he doesn’t, he may instead allow MPs to move amendments to the vote, in which case the Government will reportedly pull the vote. So it’s all basically bullshit and bluster and can be safely ignored.

Then there are several more things that may happen, in one order or another:

  • The Withdrawal Agreement Bill. Johnson has said he’ll now—finally—publish the Withdrawal Agreement Bill, the enacting legislation that will, when passed, give legal effect to Johnson’s deal with the EU. This is reportedly a large, dense piece of legislation (appropriately, for a 600-page agreement) which will then be subject to potentially several days of debate and endless amendments from the House. The two most important possibilities that have already been raised are:
    • People’s Vote. A second referendum will almost certainly be raised. The objective would be to tack a post-legislative (“binding”) referendum onto the Bill, so that the Withdrawal Agreement goes into effect automatically once the people vote for it.
    • Customs Union. This amendment would require us to remain in the Customs Union. It would significantly protect us against the economic fallout of Brexit (most of the harm is going to be done, not by the tariffs themselves, but by the logistical delays at the border), but also bind us significantly to EU laws and regulations and freedom of movement, effectively killing the ERG dream.
  • The EU’s Extension. We haven’t yet heard from the EU! Will they answer sooner or later? Will they extend for the time asked, or more? Or less?
  • The Queen’s Speech. We still have a Queen’s Speech debate in progress! This has been quietly forgotten in the hubbub, but technically the parliamentary session hasn’t really properly begun yet, as the House hasn’t agreed to a legislative programme.
  • Early Election/Vote of No Confidence. If the WAB fails, Johnson will most likely ask Commons to grant an early election; if the Queen’s Speech fails (for the first time since 1924!), Corbyn will be expected to launch a Vote of No Confidence. In either case, we’ll most likely be facing an election very soon.

So What’ll Happen?

Honestly, it’s all crystal balls here. Parliament is hung and there are three key groups of kingmakers: 19 Labour Leavers, who would prefer a “Labour Brexit” but are believed to be willing to back Johnson’s deal rather than risk losing Brexit altogether; the 21 Tory exiles, who want to Brexit but don’t trust their own Government; and the DUP, who are now astonishingly in play, having learned that Johnson does not give a modicum of a shit about them. Everything is to play for. This week will be the most important, and unpredictable, week in the past three years and change.

First things first, today’s vote isn’t going to happen—whether because Bercow throws it out, or because the Government withdraws it—and if it does, it’ll fail.

The Customs Union amendment is likely to pass; many of the exiles and Labour Leavers will support it, as will the DUP (since it helps keep NI in the UK). The People’s Vote amendment is uncertain, but I think unlikely to win. Some exiles will support it, and some Labour Leavers, but probably not the DUP (but never say never). If either of them pass (but especially the Customs Union), Johnson may just pull the Bill rather than put it to a final vote.

The EU will grant an extension. They are unquestionably getting sick of us, but they also don’t want to be seen to be kicking us out. But they’ll hold off for a few days; they don’t want to be seen to be interfering in domestic politics, either, and to be honest (even if this isn’t the deal they’d really prefer), they would like this resolved sooner rather than later. They’ll most likely give us an answer once they know if the WAB is going to make it or not. They could be tempted to give us a long extension of a couple of years—every major deadline has been crossed, now, with the Commission taking office and drafting a 2019-2024 budget in November—but I would expect them to hold off and give us exactly how long we ask for.

The Queen’s Speech will either be quietly forgotten or will lose. It should be historically, apocalyptically embarrassing for the Government, but no-one will really notice.

There’ll be an election, probably by the end of the November. Anyone predicting the outcome is a charlatan, but it looks like Johnson’s people-vs-parliament election will be hobbled by his having to champion his deal, which a) makes him vulnerable to being attacked on specifics of the deal, and b) opens up his right flank to Farage, who hates it. It’s an open goal for Labour, who unfortunately are brilliant at fouling open goals. I’d probably guess another hung parliament, with Labour in position to put together a rainbow coalition, but who knows? It’s pure speculation.

And that’s where we are right now. All of this will be out of date in about the next two hours, but you can take some brief comfort in feeling up to date until then.

Cheers! x

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*Also, possibly, avoiding breaking the law. Jolyon Maugham QC launched a challenge last week (which failed on its first hearing, but had a chance of winning on appeal) to the effect that the European Union (Withdrawal) Act included an amendment raised by Jacob Rees-Mogg himself barring Commons from approving a deal that put a border in the Irish sea. That could well have stymied Parliament from signing off on the deal this weekend, although it won’t stop Parliament from passing an Act to the same effect, due to a legal principle called “implied repeal” (which holds that any new law that contradicts an older law also repeals it, or at least whatever part of it the new law contradicts). So the Letwin Amendment may have saved Parliament from accidentally breaking its own law.

†It was also announced in an extremely questionable way. I’ve mentioned elsewhere that the Government has an awful lot of control over the business of the House of Commons, and it does; but it’s expected to do so by a process called a “business statement,” a formal statement to the House that then had to accept questions from MPs. Instead, he did so through a “point of order,” an immediate statement intended to clarify or correct (it’s the Parliamentary equivalent of an “actually” tweet). Bercow could well have decided to overrule the debate based purely on this.

How About Three Borders?

Note: This follows last night’s (Sept. 30) post about the current state of Brexit, which wholly failed to anticipate this degree of breathless incompetence.

Okay, so Johnson’s big plan is (or may be—as soon as it was revealed, Johnson denied it) (UPDATE: it is, Johnson lied) basically maxfac again: a customs border (sorry, a “chain of customs centres”) five miles north of the border, and another customs border five miles south of the border, and vehicles passing the customs borders will have to have a phone app or special transponders installed so the government can detect when you cross the actual geopolitical border.

BUT—and here’s the “clever” bit—he’s going to make the offer contingent on a promise by the EU to turn down any request for an extension. Having complained that the Benn Act gives the EU control of when the UK leaves (it doesn’t), he’s going to try and counter it by… giving the EU control of when the UK leaves.

I’m not sure I have to explain the ways this is not going to work.

  • First, no-one on either side of the border is going to be happy with these “customs centres,” no-one on either side of the border is going to be happy volunteering to have their vehicles tracked by the UK government, most small and medium businesses are not going to be able to afford the systems required to support the whole thing, it will be a glaring hole for smugglers and bad actors. It’s a bad idea that the EU won’t like.
  • Second, the EU’s certainly not going to be interested in having their hands tied, especially given that a) they (rightly) don’t believe Johnson will get anything passed by Parliament, b) they (again, rightly) don’t expect him to stay in the role long, c) they still want an orderly withdrawal that protects both parties’ best interests and d) they don’t really like him.
  • Third, he’s arguably dodged the “misconduct in public office” bullet, given that he’s not just sneaking around and asking a leader of another country to vote against us. By making it part of the negotiations, he’s made it explicitly a matter of “high policy” and beyond the scope of the courts. But it’s certainly not beyond the scope of Parliament, who can (and probably will, if he goes ahead with this) hold him in contempt of Parliament—one possible outcome of which is barring him from the House to the end of the session. And remove him as Prime Minister for good measure.
  • Fourth, assuming the EU agrees to this genuinely stupid idea—they won’t—and somehow removing Johnson and installing a new Prime Minister who does want an extension doesn’t overrule the agreement—it would—we can still just plum revoke notification. So far, the idea of a Parliamentary backstop (requiring the Prime Minister to revoke once it’s clear no-deal is the only alternative) has been a step too far for this Parliament, but with an absolute hard deadline coming, and nothing in place? Revocation would definitely be on the table, and can be done in a few minutes. There’s no deadline precipitous enough to forestall it.

They’re playing silly games, and they’re going to be treated with the contempt they deserve.

What’s Next?

Update (Oct. 1): Johnson immediately followed this with the reveal of his spectacularly stupid plan, which I’ve discussed here.

So, quick Brexit update.

As of now, the deadlock in Commons still holds—no majority for No-Deal, no majority for a Second Referendum, and no majority for May’s Withdrawal Agreement. The exile of the twenty-one Tory rebels may have changed the balance, but it’s not been put to the test yet, so there’s no way to be sure.

Something’s gotta change. But in the meantime, there are two questions to answer.

Getting Past the End of October

Johnson’s determined to try and get no-deal done by the simple (and lazy, and dishonest) expedient of allowing the deadline to run past without an extension or an agreement. Hilary Benn’s new act should forestall that, at least for now, but Johnson (and Cummings, by all reports) are supposedly plotting one of several scams to try and get past it. These include:

  • Using the Civil Contingencies Act 2004* to suspend the Benn Act by an Order in Council, on the basis that it’s an emergency (I guess this is part of the “people will riot if we don’t” narrative?). But CCA defines an emergency—and the terms for using this power—pretty exhaustively, and by no metric does it apply here.
  • Using the European Union (Withdrawal) Act’s Henry VIII provisions** to suspend the Benn Act, presumably on the basis that it’s a law about the European Union? But the EU(W)A makes clear it relates to EU regulations imported by the Act itself, not separate primary legislation.

There may be others, but they’re basically all fucked, one way or another, by simple dint of the fact that the Benn Act is a piece of primary legislation written specifically for this one occasion.

The law can feel like a strategy card game sometimes—“Leave plays Extended Prorogation; Remain counters with Judicial Review; Leave succeeds on a save roll, but Remain spends an action point and plays Full Judgement of the Supreme Court! Leave takes five damage!”—but it’s not. There is usually a right and a wrong answer in law, and the purpose of any hearing (and this is truer the higher up the court system you go) is to find that right answer. And the expressed purpose of primary legislation (that is, a law specifically drafted, debated, amended and passed in both Houses of Parliament, then given Royal Assent), if there is no particular ambiguity about its applicability—and one may imagine that a law written specifically for one event is unambiguously applicable—is by definition the right answer.

The Primary Legislation card beats everything. There’s even a legal principle called “implied repeal,” which basically says if you can find an older law that appears to contradict the Benn Act (not sure what such a law might looks like), then the passage of the Benn Act is presumed to repeal whatever part of the older law applies in this context. There is no way to get around it, by any kind of legal chicanery; and trying, as a Minister of the Crown, is not only unlawful (in the specific judicial review sense of “not supported by the law”), it’s very, very likely going to constitute misconduct in office, a crime carrying a maximum life sentence in prison.

If he just decides to ignore it, the Scottish courts are currently working through a petition of nobile officium (known, hilariously, as a “petition to nob off”) that will allow the court to put in the request on the Crown’s behalf, and/or Johnson may be held in contempt of court. If it looks like taking too long that way, or if he tries to prorogue again, the House will almost certainly remove him by a Vote of No Confidence and replace him with a caretaker PM, which they can do in about 24 hours. And if he refuses to leave after losing a VoNC, speculation is currently that the Queen would be constitutionally obliged to summon him to the Palace and sack him. Then the caretaker Prime Minister can request the extension. At the moment, it’s not guaranteed that it will be granted, but the European Parliament recently voted in support of an extension, and rumbles from the Council of Europe are that we will most likely be granted at least one more extension.

Ultimately, the challenge isn’t getting the extension, really, or getting rid of Johnson. That’s all pretty straightforward. It’s what happens next.

What Happens Next?

First off, who’s going to be the caretaker Prime Minister? Corbyn gets first dibs in the event of a Vote of No Confidence, but he doesn’t command a majority. SNP have said they’ll back him purely to get an extension and a General Election, but the Lib Dems are categorically against him. It should probably be a Labour politician, or they won’t confidently get Labour MPs’ votes (the largest block of the “rebel alliance”), but needs to have the Lib Dems, the SNP and the Tory rebels on side to have a chance, which probably means not Corbyn and not any of his closest supporters.

Harriet Harman’s name is in the ring. Ken Clarke’s a Tory, but pretty well-respected, and the “Father of the House.” Hilariously, Bercow’s been suggested (Lord knows the whole alliance has enormous regard for him right now, and he’s technically not a member of any party). But the SNP—who are the ones driving for a VoNC right now—seem to have settled on Margaret Beckett. She’s not Blairite enough to be seen as a threat to Corbyn, but isn’t leftist enough to be toxic to the centre parties. To be honest, any candidate would do, and I wish them the best of luck in these negotiations. And it’s important that they complete the negotiations before they push the button, because the last thing we need is to fall out of the EU by accident.

(Incidentally, I was asked at the weekend what would happen if there were no Government at the time, because everything had fallen apart, and Johnson had been sacked, and no caretaker could be found, and an election had been called. To be honest, that situation’s less scary that you’d think; because under those circumstances, there’s a system in place where a civil servant steps up to the PM’s role purely to keep the office ticking over—they don’t make any actual decisions—and I imagine the Benn Act would apply to them.)

Then… who knows? They’ll probably get the extension, then call a General Election. The “rebels” don’t trust each other, and they’re all bafflingly keen on going back to the polls. It won’t work: all the polling currently shows a four-way hung Parliament, and I’m pretty sure that’s what we’ll get. Then the same deadlock will happen.

Eventually (hopefully sooner rather than later), I think our representatives will have to hold another referendum. I’m not even that keen on the idea; it’ll be a proper hatefest and I don’t think anyone—like, in the country—has any energy for it anymore. But I don’t think there’s any other way to resolve it.

We’ll see. We’re still very deep in the woods.

_____
* This is our country’s “emergency powers” law. In the event of a pressing, life-endangering emergency, it enables the Privy Council to ask the Queen (or, under extreme conditions, a Minister of the Crown on their own recognizance) to pass a regulation on the spot (this can do various things: define a new crime, appropriate funds, or—crucially—suspend a law) without having to go through the whole rigmarole of writing and passing a law through the various stages. The regulation can only apply for a few days (or up to a month, with Parliamentary approval).

** This is an allowance in the law for transitioning from full adherence to European law to full withdrawal from it. Basically, EU regulations are passed in Brussels and Strasbourg, but act as UK law by the effect of the European Communities Act 1972. But the European Union (Withdrawal) Act 2017 repeals ECA, which means that suddenly thousands of laws which have been a daily part of UK life disappear at once. One of the functions of the EU(W)A is to import all currently extant regulations as UK laws at once, and then to empower the Government to remove or modify those rules one by one by statutory instrument (that is, without needing to debate and pass it in Commons) as we transition out of the EU. It’s terribly controversial.

The European Election

people-s_vote_cartoon

So! Here we are. After a tense few days in mid-April, with Parliament briefly, excitingly, seizing control of itself for a (sadly now abandoned) experiment to solve the deadlock and, briefly, the very real prospect that May would crash us out of the EU out of sheer spite (or—so much worse—by accident), we finally have our extension, requiring us to commit to participate in the European elections. Another hurdle cleared.

Inevitably, Parliament then broke for Easter for a week; and has since pissed about, holding meaningless cross-party talks (the spirit of collaboration and conciliation in these talks can be best summed up by May’s three offers that have thus far leaked to the public: “You need to agree to my deal,” “When you think about it, my deal is what you want,” and “Alright, you can have [thing that’s already part of my deal]”) (UPDATE: Welp), dithering about what the local elections two weeks ago meant, reluctantly producing manifestos that mention precisely zero European issues and largely wasting time, while Farage’s I-can’t-believe-it’s-not-UKIP jumped out of the box with a powerful message and basically no manifesto at all.

May’s decided to head off Bercow’s objections to Meaningful Vote 3 by skipping it altogether and going straight to the bill intended to enact the treaty (technically a different legislative question, so legit), and that’s going to fail as well; and now she’s promised her party that she’ll finally step down then, meaning that after the vote on the bill in early June we get to waste potentially another six weeks on a Tory leadership challenge. We’re basically just treading water until the October deadline, now.

But for now, we have an election in a week! Let’s talk about that.

So What’s A European Election, Then?

Instituted in 1979 in response to a drive to make the EU more democratic (and more like a federal nation-state, which is the bloc’s eventual long-term goal), the five-yearly European election allows the people of Europe to directly appoint representatives to the European Parliament in Strasbourg; since 2014 it’s also allowed them to elect the President of the European Commission (the Commission is essentially the government cabinet, making its President the de facto leader of the whole EU).

Eh, what’s that you say? I thought the EU was led by “unelected bureaucrats”? Well, that’s a whole thing. The President was never really unelected—they’re appointed by the Council of Europe (consisting of the presidents and prime ministers of the EU’s member states), then approved by Parliament—but now less than ever. The Treaty of Lisbon in 2009 directed the Council to choose a member of the largest Europarty in Parliament (more on them in a moment), and the parties immediately responded by proposing spitzenkandidaten (“lead candidates”); and Parliament promptly announced that, going forward, only the spitzenkandidat of the largest party would be granted approval, leading, in 2014, to the EPP’s spitzenkandidat Jean-Claude Juncker being made President. Thus, in a fairly quiet way, the European election became a Presidential election as well.

Right, But Isn’t This A Soft Referendum?

Is it? See, here’s my problem with this. Yes, everyone’s talking about it being a soft referendum (well, not everyone; Corbyn’s desperately trying to make it about other issues, and the Tories are pretending it’s not happening at all), and if we treat it as a soft referendum then of course it is one. But it’s not a referendum, it has no actual legal power to affect Brexit at all, and we wouldn’t say this were it not for the fact Britain always treats the European elections as though they don’t matter and that’s basically how we got here in the first place.

Here’s why I think it’s a bad idea to treat this election as a soft referendum:

  • How do we win? Since it’s not a referendum, there’s no metric for measuring the result. Is it most seats or most votes? What happens if one side gets most votes but the other gets most seats? Do we get to tot up all Brexit parties vs all Remain parties, or is it just the largest party on each side? Unless Remain wins by all metrics—and we won’t, even slightly—Farage will declare victory regardless, so why talk up the “soft referendum” angle at all?
  • We can’t win. If Labour’s NEC had had the good sense to unambiguously declare the party for a referendum at the end of last month, perhaps we’d be having a different conversation now. It’d be a simple binary—Labour vs Brexit Party—and a good chance of Labour winning. But they’ve dragged out their bloody triangulation strategy a little longer, and Remainers are actively calling a vote for Labour a vote for Brexit. (People’s Vote are being sneered at for saying Labour “passes their referendum test,” but they’ve understood the situation better than most and are trying to control the narrative, to be able to claim victory after the fact. That’s all this is about.) So now the Remain vote’s fatally split, with Labour-Remainers torn between party loyalty and “sending Labour a message,” and there’s no realistic chance of beating Farage by any metric. So why be a mug? Let’s just not play his game!
  • We can’t “send Labour a message,” either. That’s what swung this for me, really. The local elections on May 2nd were disastrous for Labour. These were seats they lost in 2015 and should have been able to get back; they should have picked up 500+ new seats. Instead they lost eighty seats, with the (unambiguously pro-Remain) Lib Dems and Greens picking up the vast majority of the Tories’ lost seats. Corbyn’s takeaway? “The people want us to get on with Brexit.” So fuck ’em. Fuck Farage, fuck May, fuck Corbyn. My first impulse back in mid-April was to vote in this election on European parties and policies, and what our national leaders have told me is that my first impulse was right.

If you want to treat this as a soft referendum, I understand—I really do—and good luck to you, but I’d urge you not to. If you must, though, here’s my advice.

  • Vote unambiguously. We all know Corbyn’s going to count any votes for Labour as votes for his constructive ambiguity. Realistically, Labour MPs are backing and will continue to back a referendum, but that’s not the same as voting for Remain parties. Vote for Lib Dems, vote for Greens (don’t bother with ChangeUKTheIndependentGroupForChangeNowTheTiggers or whatever they’re calling themselves, they’re a bloody mess).
  • Vote tactically. The d’Hondt system is a proportional representation system, but only barely. Blair chose it, and Blair didn’t want PR; he wanted a system that favoured large parties (since he was, at the time, leading the largest party). There’s a not too terrible explainer of it here, but in practical terms, it means the largest two or three parties get broadly proportional seats, but the last seat or two look much more like first-past-the-post, where a handful of votes can make the difference. So look at polling (ideally, for individual seats, if there are any; Britain Elects is worth watching). Look to vote for the most pro-Remain party with 10% of the voter or better, or in fourth place or better (or both).

But I say fuck Farage’s narrative and vote for the Europarty whose views you most like (and if it happens to be a party which, in the UK, is unambiguously for Remain, then good luck to you).

So Tell Us About The Parties, Dave

I’m glad you asked! So this can all be terribly confusing, because most of the various countries’ national parties operate in the European Parliament under the banner of what are formally called “parties at the European level” (but inevitably and perhaps mercifully known as Europarties), but in turn the Europarties (along with national parties not flying Europarty banners, or individual MEPs) are collected together in standing coalitions called “groups in the European Parliament,” and I’m going to try and simplify by talking about the latter groups, because they are, for all intents and purposes, the standard power blocs of the European Parliament.

There are eight at present, from largest (for now!) to smallest:

The Group of the European People’s Party (EPP)
The centre-right group, keeping in mind that “centre right” in Europe equates to left-of-centre by UK standards. The party of Juncker and Tusk, who’ve led the EU since winning in 2004. They’re pro-austerity, pro-European, pro-Christian and generally content to let Germany lead the bloc. Their spitzenkandidat is Manfred Weber, who’s opposed forgiving Greek debt and has a history of voting against LGBT rights in Parliament. No UK parties are flying the EPP banner.

The Progressive Alliance of Socialists & Democrats (S&D)
The centre-left group (same caveat; they’re politically roughly on a par with Corbyn), S&D are anti-austerity, pro-workers’ rights, pro-European and pro-equality. They’re talking about a European minimum wage, are open to revisiting rules on nationalisation, and are even making good noises about climate issues. Their spitzenkandidat is Frans Timmermans, who’s been smashing it in every debate. Labour UK flies the S&D banner.

European Conservatives and Reformists (ECR)
David Cameron formed this group in 2009 when his party bitched at him for being in the pro-Europe EPP. It’s formed of right and centre-right euroskeptic parties and is sort of fash-light, with lots of talk of “common sense” and “traditional values.” They sound a bit like your grandad at a barbecue after a beer or two. Their spitzenkandidat is Jan Zahradil, whose campaign slogan is “retune the EU.” The Tories fly the ECR banner in the UK.

The Alliance of Liberals and Democrats for Europe Group (ALDE)
The main centrist group, the ALDE are good technical politicians, playing the main game of the European Parliament, which is coalition- and consensus-building. They’re arguably the most fervently pro-European party, and indeed their manifesto is essentially “we’re going to be more European than anyone else.” They’ve declined to run a spitzenkandidat, but it seems likely Guy Verhofstadt would be President if they won, who of course you’ll know from the Brexit negotiations. The Lib Dems fly the ALDE flag in our elections.

The European United Left/Nordic Green Left (GUE/NGL)
The main hard-left group, formed of Scandinavian greens and Mediterranean communists, GUE/NGL treads a fine remain-and-reform line, favouring further European integration while agitating to abolish the Maastricht Treaty and radically reform the bloc. They’re pro-worker, anti-fascist, pro-diversity, all that good stuff. GUE/NGL’s spitzenkandidat is Nico Cué. The only UK party standing for GUE/NGL is Sinn Féin.

The Greens/European Free Alliance (Greens/EFA)
A curious coalition, consisting of the European Greens (leftist and environmentalist, of course) and the European Free Alliance, a group of left-leaning, green-friendly, pro-European independence movements including Flemish, Corsican, Latvian and Catalan movements, among others. Their platform is, obviously, tackling the climate crisis. Greens/EFA are fielding two spitzenkandidaten, Ska Keller and Bas Eickhout. In the UK, the Greens, SNP and Plaid Cymrw are all flying the G/EFA banner.

Europe of Freedom and Direct Democracy (EFDD) and Europe of Nations and Freedom (ENF)
Look, it’s bad enough I had to write about ECR. EFDD and ENF are Farage’s current group and UKIP’s current group, respectively. They’re borderline-fash and actual-fash. I can’t imagine you’re reading my blog and considering voting for these guys, so let’s leave it at that.

So, if you’re moved by my argument, I would suggest going through this list, reading up on the parties, reading their manifestos, reading about the spitzenkandidaten and choosing accordingly… and talking about it. Tackle the “soft referendum” narrative; remind people that this is an actual, real vote: for MEPs, for Strasbourg, for the Presidency. Remind people that the EU was a democracy all along, and if we’d actually treated it like one, and participated in it, we might not be where we are now.

And if you’re still hoping for advice on where to vote, could I suggest S&D? I know Labour are shit on Brexit, and it infuriates me too; and I know Corbyn’ll only go and treat votes for Labour as votes for his stupid nonpolicy on a referendum. But S&D are within twenty seats of being largest party, for the first time in fifteen years, and we might actually be able to put a socialist in charge of the European Commission, instead of a pro-austerity homophobe.

Cheers and good luck making your mind up. It’s not a fucking simple choice, by any means.

David

Things Fall Apart II: The Centre Does Not Hold

Okay, for Parliament fans.

Last night was tedious, reckless and embarrassing. Her Majesty’s Government is attempting the ludicrous trick of leveraging the EU negotiation team and the UK Parliament against each other rather than actually doing its job, while large parts of Parliament are either arguing about which colour unicorn to ask for, actively scheming to throw us into the toilet or desperately hoping someone else will fix things for them.

There actually was a bit of momentum for some sort of resolution, up until a day or two ago, but May expended considerable energy into convincing everyone to kick the can down the road for no very good reason, and a narrow majority accepted it, essentially out of fear of the electorate.

The Setup

With less than two months to go, and with her extant deal comprehensively rejected, May came back to Parliament with a Plan B (which was really just Plan A again). Like last time, this was amendable, but whereas last time MPs agreed to withdraw all amendments so they could give a clear and conclusive answer to the deal as it stood, this was seen as their chance to forge a way out of the deadlock. This was when we would start to Get Shit Done.

The motion was tabled for yesterday, giving MPs a week to submit amendments, lobby for support and prepare their arguments. More than twenty amendments were advanced, some of them very thoughtful, well-crafted tools for helping ease our way out of the crisis. Statements of intent, referendums, extensions to the Article 50 deadline, citizens’ assemblies, non-binding “indicative votes” to determine which solutions had the most support in the House and one rather elegant (if radical) tool for shutting the Government up for a few days and letting the MPs work on a compromise.

May’s Strategies

This House has Considered: May’s first play was making the vote an advisory motion. Rather than moving that “This House accepts the Withdrawal Agreement,” she moved that “This House has considered the Withdrawal Agreement,” which meant it had no consequence. The purpose of the debate and vote was thus to let May know how MPs feel about the deal (which they did, by a 230-vote margin, two weeks ago) and to propose solutions; but not to actually achieve anything. There would be another debate and vote, no later than Valentine’s Day (a day commemorating a community leader who was prosecuted for making outlandish claims, challenged to perform miracles and then executed for failing to do so). May claimed this was some sort of constitutional requirement relating to the 21st January “statement on no-deal” requirement of the Withdrawal Act, but even constitutional lawyers had no idea what she was on about. So it was basically to take the urgency out of the vote.

(This is because, while there’s a clear majority against no-deal, there’s no majority for anything, so MPs aren’t going to rally around any one solution until it’s too late to do anything else. As long as May can keep them feeling like it’s not too late, they won’t unite.)

The Brady Amendment: Graham Brady, leader of the 1922 Committee (the Conservative backbench), tabled an amendment endorsing the Withdrawal Agreement, sans the Irish Backstop, and asking the Government to replace it with an “alternative arrangement” to keep the border open.

The Malthouse “Compromise”: At the same time, Steve Baker, a junior minister in DExEU, put together a magnificently bullshit document dragging out the old “technological solutions” to the border and proposing a “managed no-deal” (that is, a withdrawal agreement about not having a withdrawal agreement, which is as nonsensical as it sounds) as a fallback to the technological solutions. A managed no-deal isn’t a thing, and the technological solutions don’t exist, and legit the ERG spent half of 2017 and 2018 peddling this nonsense and were repeatedly knocked back, but because this time it was padded out with passages from May’s agreement and some extra legalese, to make it look like an actual proposal rather than a pipe-dream, MPs started treating it like an actual thing. Housing Minister Kit Malthouse called it a “compromise” between the ERG hardliners and the Tory soft-brexiters and brought people together to support it.

These two things came together, with May whipping MPs to support the Brady amendment while broadly hinting she would take the Malthouse “compromise” to the EU to renegotiate. Which means, yes, she was ordering her own MPs to fatally undermine her own deal, which she’d said only days ago was the only deal available, to take an alternative deal back to the EU which she knows won’t work and which the EU has already rejected.

Essentially, she’s dealing with two groups, neither of which she can persuade to budge, so she’s decided to get them to try and budge each other and absolve her of responsibility for doing so. She’s trying to be the fulcrum, rather than the lever: wielding the EU’s intransigence against Parliament’s indecision and vice versa. It’s not going to work.

What Happened

Broadly what was expected, really, once May had done her damage. Seven amendments were accepted for debate by the Speaker. Of those:

  • Labour’s and the SNP’s amendments were just political statements, essentially saying, “If we did things our way, it would go better,” and were predictably voted down because they were political statements and neither party has a majority in the House;
  • Grieve’s (which provides for six sitting days between now and Brexit Day in which backbench Brexit bills have precedence and the Government can jolly well sit down and listen), Cooper’s (which provides for an automatic request to extend Article 50 if a deadline is reached with no progress) and Reeves’ (which does much the same as Cooper’s in a slightly different way) amendments were narrowly defeated;
  • and… Brady’s bullshit amendment asking the PM to negotiate the non-negotiable was passed with a comfortable margin.

The only real upset was Caroline Spelman’s amendment, which asserts that Parliament won’t leave without an agreement. Slightly promising as it shows (as previous votes had suggested but not unequivocally shown) that there is a majority against no-deal, but as much use as a chocolate teapot, not least because they had the opportunity to meaningfully insure against no-deal with Grieve’s, Cooper’s or Reeves’ amendments but voted against them. It’s like voting against being rained on, but also against buying an umbrella.

But Why, Dave? Why Did It Happen?

Because May knew what she was doing, in a horrifying way. She doesn’t want no-deal either; she wants MPs to accept her deal, which she worked hard to secure. And she thinks the best way to do that is to drag things out until it’s too late to do anything else, and is banking on that anything-but-no-deal majority to accept her deal when the time comes. Until then, she’s running the clock down.

She played them, taking the urgency away by making the vote non-binding and promising another vote down the line (she even used that line in Parliament: “there’ll be more chances to prevent no-deal”) and dangling Brady’s amendment and the ridiculous Maltford “compromise” in front of them to give false hope that a solution could yet be found. And she won.

What Next?

Who knows? May goes to Brussels, pointlessly. There’s more debate, more amendments, more voting. Maybe Parliament will finally show its courage. But it’s hard to imagine when; this would, after all, have been a great time to do it.

But it’s important not to look at the House as having collectively voted for this motion, against that motion. All these votes were pretty narrow, in the neighbourhood of 300 votes to 320 each time. Which means there’s a solid 300 MPs who either back May’s deal or are consciously gunning for no-deal; and a solid 300 MPs who oppose May’s deal, who support Grieve’s and Cooper’s ideas and are desperate to avoid no-deal by any and all avenues; and around 20 MPs who are loudly and firmly against no-deal but are terrified of doing anything that could be seen as preventing the “will of the people.”

Twenty MPs. Just over a dozen Labour MPs from the Leaveiest seats, around half as many Tory moderates whose constituents will not tolerate the backstop. Twenty MPs who are clear-eyed about the dangers, but don’t want to go home to their constituencies and face deselection; who will give May every chance they can to try one more time to fix this problem; who would, all things considered, much prefer it if someone else altogether fixed it so they could pretend to their constituencies that they were disappointed that Brexit was “sabotaged” (while secretly breathing a sigh of relief).

Twenty cowards, truth be told, who need to get off the fucking pot, clearly tell their constituents what the deal is, and take action. Because their chances to do so are quickly running out.