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.

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