• RJ Smith

My Predictions About Britain’s Current Political Crisis

*UPDATE* 21 October

On Contempt and Johnson's Deal

On Saturday night Boris Johnson refused to sign the letter Parliament mandated him to send to the EU requesting an extension. I forecasted that if he had failed to send the letter, as he promised so many times, he would have been in contempt of court and could have been sent to prison.

Today the court proceedings are going ahead in Edinburgh, and there is is still a chance Johnson will be held in contempt. This is because in earlier hearings, Johnson's lawyers said that, should he send a second letter attempting to negative the one Parliament mandated him to send--precisely what he did--he would be in breach of his undertakings before the court.

The document that lawyers will be adducing in court today about the Prime Minister's undertaking not to frustrate the letter he was obliged to send.

Nevertheless, as he sent the letter, even if he were to be held in contempt, prison is now highly unlikely, unless he does something else which is inconsistent with his lawyers' statements in court.

Regarding his deal, the possibility of a no-deal Brexit was quashed on Saturday, unless the EU denies the UK's request for an extension. This is unlikely, as the EU has a lot to lose too were a no-deal Brexit to occur.

So the question is: can Boris Johnson get his deal through the Commons and take the UK out of the EU before halloween as he has promised repeatedly?

My prediction is: no.

He will move to hold a 'meaningful vote' on the issue today, that is, pose the question to the Commons whether they will vote for it or against it, a simple yes/no proposition.

That motion will probably be denied by the Speaker, John Bercow, a Tory MP who has been hostile to his party's prime ministers since taking the chair, on the basis that the question was effectively answered on Saturday, and the same issue should not be voted on twice in quick succession.

Then Johnson's only option will be to table the deal as a normal act of Parliament. It will then be vulnerable to amendments. All an MP has to do is propose an amendment attractive enough to the majority of the remain Parliament--like staying in the customs union--to kill Johnson's deal.

Then, he would have no choice but to call an election, and with an extension now requested Labour would have no choice but to accede to one.

As I discuss in my 12 September update below (option number 3), this is likely to result in a hung Parliament, and so the pain and delay will go on.

*UPDATE* 26 September 2019

Supreme Court's Historic Decision: Parliament to be Recalled

The Supreme Court has ruled in favour of Remain activist Gina Miller on the question of whether Boris Johnson lawfully prorogued Parliament.

I think this decision is wrong, and that the Court has done itself a disservice by entering this arena. The question of whether a prorogation is legitimate could only be answered by reference to the political context in which it is made and speculation about the Prime Minister's motivations. What are political matters if not these?

It is true that in the absence of clear constitutional rules, each of the three arms of government is entrusted to comply with the spirit of the country's values, and that Johnson's actions fell well short of these. But his actions were political ones with political remedies. The Parliament could have, for example, legislated to block the prorogation beforehand, and the public could have passed its judgment on the action at the next election.

In any case, Brexit has exposed, as I argue here, the limits of Britain's un-codified constitutional arrangements. It is time to draft a constitution to make clear where the powers of the various arms of government lie like in all other advanced democracies.

The result of the Court's decision is that as of today Parliament is sitting again. What I've written in my last couple of posts below is unaffected by this, except that Parliament will now, I expect, seek to mandate Johnson to seek an extension earlier than what was required under the Benn Act.

This will allow Remain activists to again go to court, this time to obtain an "order of mandamus" if the Prime Minister fails to seek an extension within the specified time frame. A failure to comply with such an order would place Johnson in contempt of court and could see him imprisoned. It is also, as I've said below, Johnson's best chance of staying in power.

Whatever happens, roughly half of the UK will claim the other side's actions are not only politically wrong but illegitimate, like foreign rule or a tyrannical monarch. Who knows how the losing side will react. It is sad that we speak of sides at all. It is a dangerous moment in which anything could happen.

*UPDATE* 16 September 2019

Rumours from London

There is a rumour going around that Option 2 of the scenarios I identified in the most recent update below (Boris Johnson finds some technical way to avoid requesting an extension) might be more likely than it first appeared.

This is because of the relationship between the two pieces of legislation currently governing Britain’s departure from the EU.

The first is the Benn Act that was passed a few weeks ago, which requires Boris Johnson to send a letter to the EU requesting an extension to Britain's scheduled date of departure on 31 October until 31 January 2020. The only alternative under this legislation is if the Prime Minister secures a deal with the EU AND the House of Commons approves the proposal.

The second Act was passed last year and specifies that, in addition to approval from the House of Commons, the Prime Minister must then pass an additional Act of Parliament to implement the deal.

This gives Boris Johnson an opportunity: if he can get approval for a deal, say for example, a slightly modified version of Theresa May’s, his obligations to request an extension would fall away. Then, he could simply filibuster, i.e. refuse to bring forward, the legislation to implement the deal as is required under the earlier Act of Parliament.

Britain would then (theoretically at least) crash out by default on October 31.

The difficulty will be getting the Parliament to accept a deal when it is, as I discuss below, opposed not just to a no deal Brexit but to any of the deals that have been proposed so far. Furthermore, they are no doubt now wise to the possibility that their approval for a deal could in fact lead to a no deal Brexit following the procedure described above.

Even if this tactic fails, as mentioned in my last update, there is still a risk Boris Johnson will refuse to comply with the Benn Act, which could cause Britain to crash out without a deal on 31 October anyway.

The only way the Parliament can definitely avoid this is if they pass an Act of Parliament revoking Article 50 (Britain's formal notice of its intention to leave the EU). But they cannot do that while Parliament is prorogued (suspended).

The Supreme Court will tomorrow hear an appeal about whether Johnson’s move to prorogue Parliament was lawful. If Johnson loses this case, Parliament will presumably be recalled, and, fearing either Option 1 or Option 2 of my analysis below, might legislate to revoke Article 50.

I think the backlash to this will be more severe than people realise (riots, etc) and could lead to a Farage Prime Ministership.

If Boris Johnson wins the case the Parliament will remain prorogued, removing its power to revoke Article 50 and leaving Johnson free to pursue whichever he prefers of the four options given below.

Nothing is certain, but it certainly appears that Option 4 – Johnson secures a deal which is passed by the Parliament – is now even less likely.

*UPDATE* 12 September 2019

Corbyn Refuses an Election

So Jeremy Corbyn, after demanding an election since the last one, has refused to grant Boris Johnson one before Britain is currently due to leave the EU on 31 October 2019. This was both cowardly and stupid. Cowardly because, if you believe the public does not want a no deal Brexit, why not put the question to them and allow them to install you as Prime Minister to avoid it? Stupid because Boris Johnson remains Prime Minister, and although Parliament has compelled him to request an extension, he might simply refuse to comply with the law or find a way to evade its effect. Then again, as I discussed below, Corbyn would have lost a pre-Halloween election, so can you really blame him? Well, yes, but you can understand why he did it.

Anyway, Parliament is now prorogued (pending litigation to ahhh.. de-prorogue it?). So what happens from here? Boris Johnson, broadly speaking, has four options:

  1. He refuses to comply with the law requiring him to request a delay. The idea of a Prime Minister disregarding an Act of Parliament is in general an unacceptable one. But these are exceptional circumstances. Whether or not you voted to leave the European Union, a vote was held and the Leave side won. Further, at the last election a massive proportion of MPs campaigned on the basis of giving effect to the referendum and a majority of them are now turning their backs on their electors. The Parliament is there to represent the people, and there is a strong case for saying they are shirking this, their first, duty. Boris Johnson could refuse to comply with the Act of Parliament on this basis. In this case, Johnson would break the law and be liable for contempt of Parliament. Theoretically, he could go to prison. However, if the public supports him, and he simply says he will not request an extension, he may become something of a martyr among at least a small majority of the British party. Or he could be marched out of Downing Street, disgraced, the shortest serving PM in history. The stakes could not be higher. Time will tell what he does, but this option could work in his favour.

  2. He finds some way of evading his mandate to request an extension. There are rumours that he might send a second letter after sending the first to the effect that he takes the first one back. This would probably not work. The EU would simply ignore it, and it would make him look like (more of) a weasel. No doubt an expedited court hearing would also rule against him. He might find some other way like some kind of filibuster, but it does not appear there's any room for him to manoeuvre in this manner.

  3. He complies with the law and an extension is granted. No longer having a majority, he would then have to call an election. There is a real risk the public will turn against him in the subsequent vote. With the Lib Dems and the Brexit party lurking like hyenas to pick up the disaffected remainers and brexiteers , a hung Parliament is likely if Johnson chooses this option.

  4. He gets a deal. This is now much less likely, because there will probably be an election before the next scheduled date of the departure, which, if the Remain parties (Lib Dems, Labour, SNP) won, would probably result in another referendum and Brexit potentially would never happen. The EU therefore has less than zero incentive to make concessions. Regardless, the majority of the Parliament are remainers and are unlikely to accept any deal given Johnson's weak position.

In summary, the question is: will Johnson make good on his threat that he will not under any circumstances request an extension (discussed below)? If the answer is yes, he will go down in history as either an heroic or odious figure, like Thatcher with a . . . never mind. If the answer is no, option three is the most likely, and the Brexit mess will continue for another indefinite, tortuous and torturous period.

*UPDATE* 4 September 2019

Will Corbyn Refuse an Election?

My predictions have been accurate so far, but one thing for which I did not account is that the Opposition might resist an election if called by the Government, which they are now threatening to do.

Their stated reason is that, if they allow Boris Johnson to call an election for before the date at which Brexit is presently scheduled to occur, he may then simply change the date of the election until afterwards and take the UK out of the EU without a deal.

This is possible under the Fixed Term Parliament Act, but it is highly unlikely Johnson would do this. Should Johnson delay an election until after a no-deal Brexit, the Tories are more likely to lose, especially if, as is likely, there are financial and trade-related shocks following an abrupt exit from the bloc. I discuss this in my original post below.

Corbyn saying he is ready for an election on Twitter yesterday. He has apparently changed his mind.

The truth is, Labour oppose a pre-Halloween vote because they know they are likely to not only lose such an election but possibly be wiped out. Brexiteers (many of whom are Labour supporters) in such an election will vote Tory, and many Remainers will vote for the Liberal Democrats who have emerged as the genuine Remain party.

Either way, Labour is apparently now opposing a general election.

Can Boris Johnson force one anyway?

Since David Cameron introduced the Fixed Term Parliament Act in 2011 (add this to his long list of achievements), elections occur at the same time every five years, unless the government calls for a vote and wins the support of two thirds of the House of Commons.

With this in mind, there are three ways Boris Johnson could secure an election before Brexit:

  1. He wins 2/3 of the vote in the House of Commons. But, as mentioned the Labour Party is now opposing an election.

  2. He passes an Act of Parliament which says that, notwithstanding the Fixed Term Parliament Act, a general election will take place on a nominated date (the 14th or 15th of October). This would obviate Labour's concern about the Prime Minister changing the date. Such a bill would require a simple majority (50% plus one) in the House of Commons, but it would be subject to amendments, and would have to pass through the House of Lords, both of which could derail this option if chosen.

  3. The Government loses a motion of no confidence. We are in the bizarre situation whereby the Government may vote against itself in a motion of no confidence, and the Opposition for it. This is because, should the government lose the vote, it will give the Prime Minister the power (indeed the obligation) to choose an election date. This is a motion, not an Act of Parliament, meaning only a simple majority in the House of Commons is required, and the vote does not have to pass through the House of Lords. But there is one huge risk with this option: if the PM loses such a vote, the Commons may appoint a caretaker Prime Minister (probably Jeremy Corbyn) if s/he has the numbers. Corbyn just might, given the Commons are implacably opposed to a no deal Brexit, and Corbyn, the leader of the opposition, has said he would do anything to avoid one.

So all options are either numerically difficult to achieve or fraught with danger. Johnson will try to win via the normal method, i.e. Option One, but should he fail, Option Three might be worth the risk.

There is a risk for the Remain MPs too: if they mandate Johnson to negotiate with the EU to avoid a no deal Brexit, and do not grant him an election, he may simply refuse to negotiate, and the UK would crash out without a deal.

So they might just support an election if one is called through one of the three avenues discussed above. If they do, my predictions below might yet prove correct. . .

12 September 2019

Original Post

There is a Parliamentary rule that only the government can table legislation. But Britain has no codified constitution (discussed in my review of the Reith lectures) and only one real constitutional rule: Parliament has absolute power and can do whatever it likes.

It is likely that later today, the Parliament—by which I mean a majority of members of the House of Commons—will override the rule regarding the government’s exclusive power to bring forward legislation.

So members will be able to table any prospective laws they like.

This will allow Hillary Benn, a senior Labour MP to introduce an already drafted bill tomorrow (Wednesday) to compel Prime Minister Boris Johnson to negotiate a delay to Britain’s scheduled exit from the EU until January 2020.

Boris Johnson said last night (over loud boos from protestors at Downing Street) that he will not renegotiate another exit date with the EU under any circumstances.

There are no circumstances in which I would ask Brussels to delay. - Prime Minister Boris Johnson.

This means that if Benn’s Bill passes—which it probably will given Johnson has a parliamentary majority of one and several of his own MPs threatening to rebel—the Prime Minister would have no choice but to call an election.

If he is smart, Johnson will schedule that election to take place before the Brexit date of 31 October. In this case, the vote will be on a single issue, in effect a motion to ratify the result of the referendum in 2016.

For four reasons, Johnson will win such an election:

  1. Labour, now a remain party, will lose at least some of its seats in England and Wales that voted to leave.

  2. Jeremy Corbyn has been inconsistent on Brexit. The Liberal Democrats—who may or may not be willing to enter a coalition with Labour—and the Tories are likely to profit from his equivocation.

  3. The public is tired of the Brexit issue and want it resolved.

  4. There has already been a vote on Brexit. Many who voted remain (like me) believe the result should be respected.

The likely date of the election is 14 October. This would give Johnson time, if he wins, to negotiate a final deal with Brussels at the EU Summit on 16 October, where he could use his mandate for a no deal Brexit as leverage to negotiate a last minute compromise with the EU. The Parliament would have time to ratify any such deal.

If the EU is not willing to cede any ground, Johnson could simply take the UK out of the EU without a deal.

All of these questions will be answered in the next 48 hours. Let’s see how it all plays out . . .


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