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

_____

*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.

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