Brexit: Ultra Fracas

Needless to say, last week was an exceptional one for UK politics. It looked like car crashing into a wall and flying into pieces. And the audience wonders…will the gas tank explode next?

Boris Johnson managed to unify a heretofore hopelessly divided opposition against him, and made his bad situation worse by conducting a jihad against his own party. And day-to-day developments that don’t make the headlines are just as unflattering. For instance, Johnson appears to have no idea what Brexit negotiations would amount to (he seems to be sincere when he talks about getting a deal done at the October EU Council meeting). And unlike Trump, he doesn’t have the excuse of not knowing the job description.

Because I was largely on holiday last week, I hope I am not skipping over anything important (as embarrassing as it was, I don’t regard the resignation of Johnson’s brother as important). PlutoniumKun summarized the events up to the weekend:

It’s hard to sum up the sheer lunacy of the past few days of UK politics, it even defies satirists, but here is my attempt at an overview of where we are as of the end of the first week in September.

1. Johnson (or should this be Dom and Dommer?) has revealed the real strategy. Provoke an election for mid-October running aggressively on a Brexit platform in order to try to get a majority and split the opposition. Brexit is almost a side issue to Johnson’s personal ambitions. He (and D&D) are prepared to destroy the Tory Party if necessary.

2. Johnson’s team completely botched the plan. They didn’t expect Corbyn to call their bluff on an election and they didn’t expect so many internal Tory defections. Essentially, they overplayed their hand and now find they’ve run out of cards and lost their majority. They need a new plan quickly, the question is if they can do it.

3. There now seems a much better than before chance of a 2 month extension being requested (probably as a condition of Johnson getting his election if necessary). I can’t see the EU turn this down unless Macron or a wild card leader objects.

4. Johnson seems all at sea and suddenly seems to have realised that being PM isn’t anywhere near as much fun as he hoped. He is very rapidly running out of goodwill on his own side, and soon this could be reflected in the polls. This could make him reconsider the quick election he claims not to want but is desperately trying to provoke. This could mean the UK just crawling over the no-deal cliff with a deeply wounded minority government in charge, let by a buffoon who has realised nobody is laughing with him anymore.

5. This week’s loser: Johnson blew his big moment. This week’s winner: Corbyn – he successfully called Johnson’s bluff and has made himself the undisputed leader of the opposition. The LibDems now will have little choice but to back him in almost anything he chooses to do. This week’s other winner: The SNP. Never interrupt your enemy….

This being an overly dynamic situation, new shoes dropped over the weekend. Work and Pensions minister Amber Rudd resigned, and then took to the airways to excoriate Johnson for not negotiating. Huh? The EU has said negotiations are over, save regarding the non-binding statement of the future relationship (although that is not totally true; the EU likely would consider swapping out the backstop for the so-called “sea border” option). Nevertheless, her beef seemed to be that Johnson wasn’t even making a credible pretense of trying to get a new deal.

Politico’s morning European newsletter has more detail on what Tory tactics hath wrought:

BORIS GOES TO DUBLIN: U.K. Prime Minister Boris Johnson heads to Dublin for his first face-to-face meeting with the Irish Taoiseach Leo Varadkar this morning. Back home in London, parliament will today finalize laws forcing Johnson to seek an extension of the Brexit negotiating period if he fails to secure a divorce deal by October’s European Council summit — something Johnson continues to insist he won’t do. Johnson instead still wants to convince MPs to vote for a snap general election. Spoiler alert: That’s looking highly unlikely indeed.

How Ireland lost patience with Brexiting Brits: Johnsons’s demand for changes in the Brexit deal has only hardened Dublin’s commitment to it, Naomi O’Leary and Charlie Cooper write. “As trust has trickled away, so too has the appetite to accommodate the shifting U.K. position, uniting Ireland’s political class behind their red lines,” they write.

How Paris lost patience with Brexiting Brits: Brussels won’t grant the U.K. a Brexit extension beyond October 31 if circumstances in the country remain the same, Jean-Yves Le Drian, France’s foreign minister, said Sunday. “The British must tell us what they want,” he told Europe1 radio. “We are not going to do this [grant an extension] every three months.”

How Brussels lost patience with Brexiting Brits: Talks between British and EU officials in Brussels on Friday were “catastrophic,” according to one EU official, with the Brits failing to present any new proposals.

How (now former) Tories lost patience with Boris: Amber Rudd said Saturday she was resigning from her post as secretary of state for work and pensions in Johnson’s Cabinet and quitting the Conservative Party because of how the PM is dealing with Brexit. Meanwhile Nicholas Soames, a veteran Conservative MP (and the grandson of Winston Churchill) who was effectively kicked out of the Tory party for not backing Johnson on Brexit, hit back hard at the PM. “Boris Johnson is nothing like Winston Churchill,” he told the Times. “I don’t think anyone has called Boris a diplomat or statesman.”

Other developments the BBC deemed noteworthy: Farage has offered a general election pact to the Tories and the Tories plan to defy convention and back a challenger for Speaker John Bercow’s seat.

But the other big news item of the weekend was that the Tories are leaking their oh-so-clever plan for how to implement Johnson’s promise to defy the expected-to-become-law Parliamentary bill to seek a Brexit extension to January 31. It appears that rather than be straight up intransigent, they plan to go the passive-aggressive route instead. From Reuters:

British Prime Minister Boris Johnson has prepared plans to legally stop any Brexit extension, the Daily Telegraph reported late on Sunday.

Johnson’s advisers held a meeting on Sunday to counter the strategy to prevent the British parliament’s attempts at enforcing a three-month Brexit extension if no new deal is agreed, the newspaper reported.

A plan under consideration would see Johnson sending a letter alongside the request to extend Article 50 setting out that the government does not want any delay after Oct. 31, according to the report.

On the one hand, this is so silly that it verges on lame. On the other, Labour was so uncertain that a bill telling the Prime Minister what to do would work that, as Clive pointed out, it was unwilling to back a vote of no confidence before the UK had secured an extension. Mind you, France is saber-rattling that it doesn’t want to give a three month extension with no plan as to how the UK will get to a Brexit. But France has made unhappy noises before and didn’t follow through. Unless it has more company than it did last time, it will probably relent.

What does seem surprising is that the Tories appear to have missed an opportunity to upend the apple cart. If I read this LSE article correctly, it says that the current “stop Brexit” bill, unlike the carefully crafted Cooper-Letwin, gives very detailed directives to the Prime Minister, as opposed to instructing the PM to “seek” an extension. Thus Cooper-Letwin did not intrude upon the royal prerogative and thus only required a royal assent. Because the new bill circumscribes the Government’s and hence the Crown’s authority to negotiate foreign agreements, it requires instead the Queen’s Consent, a higher bar. From the article (emphasis original):

Prerogative powers are legacy powers of the Crown that are now mainly exercised by the government. Conducting foreign affairs, and in particular the power to agree treaties and operate treaty powers, is an important part of the prerogative and is the relevant power for this post. Under that power, the UK government has agreed new treaties, and particular laws, at EU level over the last 46 years (and indeed continues to do so).

As part of the exercise of this prerogative, the UK agreed the Lisbon Treaty that created the Article 50 process for a country to leave the EU. The power to extend the Article 50 process, like virtually all legal acts conducted by the government at EU level, is not governed by any UK statute. Legal acts by ministers at EU level therefore remain, in almost all circumstances, exercises of prerogative power….

If Benn-Burt had precisely followed the format of Cooper-Letwin and only mandated that the government seek an extension, then it would have placed no obligation on the PM to agree or accept any extension. That would remain part of the prerogative power to be exercised as the PM sees fit in his negotiations with the EU27.

In seeking such an extension, the PM might make clear that he was only doing so because he was legally obliged to do so. It may be that the PM could attach a series of demands to any extension he must seek such that the EU27 would be unlikely to grant one. He may indicate that he would do nothing with any extension except seek to count down the clock, or even disrupt EU business, or other ideas. Any or all of these strategems may cause negotiations for an extension to fail.

However, Benn-Burt goes much further than Cooper-Letwin. It mandates that the PM must not only seekbut also agree to an extension, either 31 January 2020 or another date if the Commons approves a date suggested by the EU27. Mandating that the PM agrees to an extension manifestly affects the prerogative. It is difficult to see how requesting Queen’s Consent can be avoided for this Bill. If so, it follows that the government must agree to the Bill being passed during Third Reading.

What is most fascinating about this dilemma is that the Cooper-Letwin prototype gave such clear and unequivocal evidence of where the bright line on Queen’s Consent is actually drawn by the legal experts who understand, and indeed determine, these issues within the Commons. Can there be any doubt that if a stronger wording could have been secured without triggering Queen’s Consent then such a wording would have been used last time?

Nevertheless, Bercow ruled that so-called Benn-Burt does not require the Queen’s Consent. At a minimum, the Ultras should have raised holy hell about that; their silence is out of character.

However, the Ultras may feel that simply defying Parliament will do. As much as Johnson may really not want a crash out (as in he may genuinely believe the EU will blink), he does appear to want to stay in No. 10. Johnson knows a general election is unavoidable and that Farage will take seats from the Tories if Johnson fail to live up to his campaign promise of delivering Brexit by October 31. And since Johnson also promised to flout Benn-Burt, he’s already ties his hands.

And the timetable works in their favor. If the Prime Minister defies the law, the breach will not occur until October 19, oddly a Saturday. The earliest a suit could be filed is October 21, a Monday. Presumably the defendants have the opportunity to file a response before the case is heard. I’m not an expert on UK procedure, but that would seem to suggest the absolute earliest a case could be heard would be Wednesday, the 23rd. And any ruling would be appealed. You can see that Parliament is likely to run out of legal runway.

But our esteemed commentariat already figured out that Johnson has little reason to fear from Parliament. They may have fatally undermined a court case. As Clive explained:

Various Conservative bigwigs have been asking the Speaker about the proceedings which were technical and difficult to necessarily get the meaning and purposes of. But they are trying (and possibly succeeding) to trip the Speaker up using the same reasoning that he’s invoked to allow the Bill to be read.

Iain Duncan Smith referenced a court case where (to cut a very long and convoluted story short, which risks oversimplification, but here goes…) the prerogative was used, a case was brought about the legality, or not, of the prerogative being utilised to manage the matter, the court made a ruling (which isn’t pertinent here as I’ll explain now) and Duncan Smith asked the speaker if he would be bound by the court ruling and the permissibly of the prerogative. Apologies if this is hard to follow, these things inevitably are.

The Speaker told the House that, in line with his previous statements, the Commons would not be bound by a court’s rulings, in essence, Parliament defines its own rules and makes its own determinations about whether or not there has been an infraction. It is not for a court to do so. This is the basis for allowing the Bill currently being debated, in long-accepted custom and understanding and is not in itself controversial.

So why did Duncan Smith ask this? The reason is…

It’s a trap!

The Speaker has just settled (and confirmed) the precedent that, should Johnson not adhere to the terms specified in the Bill — and Johnson claimed it was permissible through the executive’s the ability to execute under prerogative — then by the Speaker’s own words, this is not a matter for the courts. It is a matter for Parliament and Parliament alone to determine. So even if the Bill is passed into law and even if Johnson “broke” the law, in deciding where the “case” would be heard, the speaker has said that the courts don’t have jurisdiction. So Parliament would have to determine the outcome and any sanction. A court could not.

But of course, Parliament would be prorogued ! It can’t determine anything if it isn’t sitting. An MP (or MPs, or anyone else with standing) could bring a case in the courts against Johnson. But immediately, the government would have, if not exactly a defence, at least a possibility to delay court proceedings while the court determined jurisdiction (or lack thereof). See also my comment below about how the courts in the UK have signalled pretty loudly and clearly they are not willing to be “politics by another name”. The ruling against the proceedings to stop Parliament being prorogued today is more evidence of this.

This is what happens when you abandon conventions. You open up a Pandora’s Box. No-one can tell what might be in there. The government (Johnson) only benefits in this situation — ambiguity is their friend. Your typical Daily Express reader isn’t likely to be interested in this kind of finer detail. But they’ll nod sagely to a headline of the “Boris Takes on Our Parliament Gone Rogue!” variety. It’s the court of public opinion which will count in this, Johnson will at least have the ability to make out his argument.

And as vlade argued:

It is a point I have been making for quite a while – how does Parliament actually physically MAKE Johnson (or any other PM) obey it? And the answer is – it can’t.

It can lock it up in Big Ben (yep, BB, not the Tower), but that doesn’t mean it can MAKE them do something.

The only way Parliament can “do something” (non-legislative) is that it gets in a new government that would be (hopefully to the Parliament) more compliant. There is no other way.

If the Johnson says he’s going to ignore the law, then he will ignore it.

And as PlutoniumKun summed up via e-mail:

I’ve always been curious as to why terminology that is so familiar to Irish people – terms like ‘cute hoor’ and ‘stroke politics’ are so absent from UK discourse, when they apply so clearly here. Perhaps because it is assumed that such things only belong to the lower orders, and Eton Boys couldn’t possibly be anything but ‘nice but dim’ or ‘nasty and smart’.

But its clear that Johnson is what we’d call in Ireland a cute hoor – someone who isn’t particularly intelligent or thoughtful, and is quite stupid in some respects, but possesses enough native cunning to be able to outmanoeuvre supposedly more smarter people. The fluency in Latin and Greek is merely a posher cover on a very familiar type of operator. This also I think applies to people around him. And they are becoming experts in what in Ireland we’d term ‘stroke politics’, which is a lower form of ‘parliamentary manoeuvres’.

So I would not underestimate their ability to outwit the Remainers in Parliament, at least for long enough to get over the line.

In other words, having Parliament in the bizarre position of having a Prime Minister with no majority and lots of enemies, but not willing to toss him out via the normal means, of a vote of no confidence, leaves them with inferior fallbacks. And the opposition is still very much divided. So while the Brexiteers have made lots of own goals, and Johnson is entirely capable of scoring more, it is too soon to write them off for dead.

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  1. Which is worse - bankers or terrorists

    I revert to my comment a few months ago: neither an extension nor election nor vote of confidence is going to help, since you have a deeply divided and broken body politic, and after any one of those events it will simply stay divided and broken like it is now. Normally civil wars sort this sort of thing out, but obviously that is unlikely to occur here.

    It seems to be a much broader crisis now, not of Brexit but of the entire national political landscape. This is just a country that appears from the outside to no longer be governable.

    The only way handle this a a crisis situation, in the absence of any consensus, is to (a) move to a non-democratic, authoritarian government, reflective of BoJo’s threat to ignore the recent legislation, or (b) someday break up the Union, with Scotland going its own way, which tilts the playing towards the Conservatives once again. This latter approach might be a way forward to achieving a new national political alignment but can’t occur in a way that impacts the upcoming Brexit deadlines.

    I just don’t see another political solution to allowing the country to move forward.

    1. Which is worse - bankers or terrorists

      A further thought on this is that when you consider that Parliament makes it own rules, answerable to no one, as indicated by the courts, and that it has blocked its own ability to hold elections, and the Prime Minister can violate any of the laws that Parliament has passed with impunity, then what you have is a dictatorship.

      I used to work in Syria and the process is not dissimilar, except for reasons for optics, Parliament does not block elections.

      1. Clive

        From my own soundings which I’ve taken over the past few days (which is just a form of “my mother-in-law says…” but I have asked over 20 people in a hopefully neutral fashion) I would, rather, observe:

        ~ An election is inevitable, desperately wanted by the populous and would be a clear, well-understood “Brexit decision” vote.

        ~ Regardless of the how the result goes, it is likely to be decisive, one way or the other. No-one is now fence-sitting in their views and few believe that any middle-way solution is viable. If the result is, and in my opinion this is unlikely, but, if it it is inconclusive, then that is itself an equally clear signal for the political class.

        ~ The opposition (to the Conservatives) has been offered an election, the election result would be known in sufficient time for any change in course to a No Deal Brexit and the refusal by the opposition to grant it is a major misstep on their part. No-one I spoke to is believing the “we don’t trust Johnson” argument. The Electoral Commission mandates the electoral timetable which is invoked once an election is called and so isn’t amenable to being subsequently delayed by Johnson. And if an election isn’t agreed soon, it will be too late to hold it before Exit Date.

        ~ There was no sense at all of “coup”, “crisis”, “revolution”, “democracy at stake” or any such notions. Such suggestions were deemed to be self-serving crisis-engineering. Yes, it (Brexit) was all a bit rubbish. But dealt with in a “you just have to laugh” sanguinity. Everyone I talked to viewed this as a political issue, a serious and profound one yes, but not an insoluble one. Voters were quite capable of resolving matter themselves, in a public poll. They knew exactly where all parties stood and what their vote would do, with the exception of the Labour Party, which no-one could determine what would happen and no-one believed they would keep any promise or assurance made prior to Election Day. Labour would be treated accordingly by the electorate for this political failure.

        ~ No one, in any way whatsoever, would be swayed by anything they saw in the media, read, or even were told by friends, relatives, canvassers or anyone. They’d made up their minds, and they believed and stated they considered themselves appropriately qualified to — and wishing to be — reaching their own conclusions, thank-you very much.

        Your mileage may vary.

        1. Which is worse - bankers or terrorists?

          “Regardless of the how the result goes, it is likely to be decisive, one way or the other.”

          So how do you gauge this? Just a sense of urgency? Although the polls can change, right now they generally seem to indicate a hung election and clear difficulty in practically assembling a coalition to form a government, correct?

          1. Clive

            A hung Parliament will not be able to agree on a single course of action. And there can, now, only be a single course of action. There is no middle-way compromising to this. If the voters fail to coalesce around a single party and their proposals, this will require another election. The process will rinse and repeat until one argument or the other is made out with sufficient clarity to convince a sufficiently large portion of the electorate.

            Of course, this should have all happened already, well before now during the past three years. The fact that it has taken thee years is a sign of a failure of the political class. This will be addressed in future. It will be a long time before such a poor, feeble shambles of a coterie of politicians will be allowed to develop so unchecked by the voters.

            But we are where we are. While it has taken far too long, we got there in the end. No-one does not now realise the decision, the consequences and the trade offs. If it does still come down to a small percentage of genuine floating voters, both Leave and Remain will need to convince them of their respective merits. We’ve been through everything — and I mean everything — politically over the past three years. An election, then, if it comes to it, another election after that, is neither here nor there, in order to get to an eventual resolution.

            1. Which is worse - bankers or terrorists?

              “If the voters fail to coalesce around a single party and their proposals, this will require another election.”


              But the EU is probably not going to allow infinite extensions to accommodate endless elections, as the French FM has noted. And, the voters, which as you say “No one, in any way whatsoever, would be swayed by anything they saw in the media, read, or even were told by friends, relatives, canvassers or anyone. They’d made up their minds, and they believed and stated they considered themselves appropriately qualified to — and wishing to be — reaching their own conclusions, thank-you very much”, puts the political class in a rather tough pickle. Voter’s positions are relatively fixed.

              And I think the quote in the above paragraph neglects the fact that some voters may be low-information, and might believe they appreciate the complexity of the situation, but don’t.

              I think this is where the logic breaks down; fatigue is a factor, and actors don’t have infinite time to spend on this nor do their constituencies appreciate the potential long-term and short-term damage. Yet the polls say no solution has a majority position.

              In a sense the political class’,”failure” is simply reflective of what their constituencies want. While I’m not sympathetic to the political at all (please see my NC Name), my take is that they are merely reflective of their voting constituencies and this is not just a failure of the political class but of the voting public of the country itself.

              Like the Triffin dilemma, this leads me to the conclusion that a decision simply can’t be made under the current system if you accept the following premises (a) The UK is a parliamentary democracy, at least currently in name, (b) no solution commands a majority amongst voters (c) voters positions generally have not changed much as events unfolded since the 2016 referendum, per the polling that I understand (I could be wrong on this), and (d) infinite extensions won’t be allowed by the EU. In that framework, one of those things will have to change for a solution.

              And my sense is that BoJo and his constituency are trending towards option (a), less democracy, to move towards a solution. I think you are hoping for option (c), but the history so far hasn’t proven that, and the number of poorly informed stakeholders makes me doubtful.

              And option (a) is sort of how authoritarian government blooms from democracy.

              1. Clive

                Re option a), I have to agree with Andrew Neil on this:

                Kevin Maguire: “Coup is increasingly apt when demotic tinpot tyrant Boris Johnson’s threatening to defy the law.”

                Andrew Neil: “Too true. And his refusal to call an election is ominously dictatorial … oh wait …”

                1. Anonymous 2

                  FWIW, the FT and other outlets are carrying a story that private polling conducted by the Conservatives suggests they would get 295-300 seats in an election held now, which of course would mean that they could not form a government except in coalition with one or more parties with more seats than the DUP. So, hung Parliament?

                  Of course it could be disinformation.

                    1. PlutoniumKun

                      Assuming that the BP didn’t get more than a handful of seats, and the DUP ended up with their likely 7-10 seats, then that would be a cumulative win for ‘Remain’, assuming that they could put together a government, which would be unlikely as its hard to see Labour, SNP and LibDems in one government. But certainly the Tories could not put together a government with less than 300 seats so you’d either have a coalition, a minority Labour government (on the basis of a loose promise to hold referendums on Brexit and Indyref2), or just plain chaos.

                      But the reality is that extrapolating seat numbers from existing polling is something of a fools game. This would probably be the hardest election to call in modern history.

            2. Jesper

              The first by the post system might not be helping matters either…

              Suppose that the local candidate for the preferred party has an opposite view on brexit compared to the local voter? Who to vote for then? Maybe there should be two candidates with opposite views on brexit for each party? The splitting of the votes might then allow for the ‘wrong’ candidate from the wrong party to be elected…
              What is the benefit for the electorate in first by the post? Is the issue of gerrymandering and safe seats to the benefit of the general population?

            3. ChrisPacific

              If the solution is endless elections until one party has an outright majority, I don’t think you have a functioning political system. This is not how governments work in most parts of the world – any party leader in a proportional system knows that if you wait until you have an outright majority, you’ll probably be waiting forever. The ability to work together and build coalitions is, in those systems, a necessary political survival skill.

              Historically FPP systems tend to paper over all that and grant an outright majority to one of two major parties, so coalition building hasn’t been an essential career skill for UK politicians. For various reasons, it’s not doing that any more, at least with regard to Brexit (a complex issue with more than two ways forward that don’t break down neatly along party lines). Endlessly rebooting FPP with elections in the hope of somehow ‘fixing’ it might work, eventually, or it might not (and in the meantime, events won’t wait and eventually might not be soon enough).

              In the end I think victory will go to parties that are able to (a) stake out a coherent and consistent position that appeals to voters and (b) demonstrate an ability to work together effectively with other parties. As you note, we are starting to see real progress on (a) from all parties except Labour, but I’m not sure anybody is close to mastering (b) yet, and until they do I think the current dysfunction has to be considered the new normal.

          2. David

            Successful politics (remember that?) works by putting one piece in place at a time. An election which produced a hung parliament would lead to very unstable situation, obviously, but one in which you would start to work in a Venn-diagram fashion by seeing what support could be assembled for what. Agreed it’s not at all the traditional British way of doing business, but it has been the rule in other places.

        2. boz

          Thank you, Clive, PK, vlade, of course Yves, and others.

          The little that I would offer to add:

          1) the options are narrowing to binary – No Deal or No Brexit

          2) I think the EU will continue tolerating the extensions as long as Remain (in the absence of pro-Deal’ers) look like possible winners in the overdue clarification of a GE. If the sentiment shifts in the direction of Leave (which I think it will), the EU may decide it is time to stop kicking the can / flogging the horse

          3) I think that substantial disorder is down the line – whether as a result of no deal (trade disorder and economic downturn) or civil, as a result of No Brexit turning people against Parliament

          And by the way did you see the latest economic figures?? I’ve never such positive comment about 0.3% growth… when you consider GDP is overstated (see Michael Hudson for more), the true economy is actually shrinking…. and that’s before you get to the impact of sentiment confirming that we are in recession…

        3. shtove

          Clive, it’s clear that once the royal assent is given the terms of the latest Exit Bill are no longer an internal parliamentary matter – it simply commands the executive in the person of the PM. Simple matter of judicial review, with a refusal to obey leading to a holding of contempt of court, upon which the Supreme Court will simply appoint an officer to sign the request on the PM’s behalf. As for the timetable through the courts, as I said before, I will gladly pay you Tuesday for a hamburger today.

          The Telegraph etc have come up with daft notions of how to exploit loopholes, none of which will be tolerated by the court.

          Johnson’s best chance is to camp out beneath the bauble in the house of commons, with all his scout badges sewn to his lapel, where he can’t be arrested. In the morning he wanders about in his his shirt tails with a rusty saucepan, seeking potable water. But Tory cuts have led to the end of fire-officer patrols for the weekly outbreaks of fire that beset the Houses of Parliament, and the whole thing burns down around his ears.

          1. Clive

            The most far reaching and controversial legal and constitutional case to arise in over a century — and you think it will rocket-docket its way from the lower court, appeal and the Supreme Court in two weeks flat? Good luck with that.

            And Sharmi Chakrabarti swooning onto the fainting couch doth not a legal argument make. Nor even establish justiciability. And only a court can decide the case even if the courts don’t bounce it straight back to Parliament’s lap (where it rightfully belongs). The clue in that last sentence is “decide”. As in, make a judgement after looking at the law and the factual matrix. You yellin’ “lock him up!” isn’t quite the same thing as that.

            1. shtove

              Interim injunction. Cyanamid v Ethicon. The balance of convenience obviously lies with compelling an extension, since leaving with no withdrawal agreement on 31 October has irreversible consequences.

              It’s conceivable they apply directly to the Supreme Court – they set their own docket.

              And I wasn’t using CAPS LOCK!

              1. Clive

                No, an Interim Injunction is not applicable because there would be no imminent risk of damage or loss. The matter does not crystallise until October 31st.

                Why would the government, which would only benefit from delay and doing a high wire act, apply directly to the Supreme Court? And the complainant can’t do that, it’s called “permission to appeal” for a reason — they have to see permission of the Supreme Court and that court hears appeals, not fresh cases.

                I am not saying this is a slam-dunk for the government and they are bound to prevail. I am saying that all they need to do is throw a legal spanner in the works, delay and muddy the waters.

                1. shtove

                  I’d say no deal on Nov 1 is imminent damage, but also the balance of convenience is a separate criterion. The Supreme Court does have original jurisdiction on devolution matters and Northern Ireland constitutional matters.

                  We’ll see.

  2. bmeisen

    A view from Germany:
    1) Tories and revisionist Labor set the stage for popular boogey-manning of the EU with their failure to defend home labor markets in the face of EU freedom-of-movement agreements.
    2) The continentals came, took the jobs that the Brits didn’t want as well as a lot of other jobs that had been de-regulated by liberal/libertarian policies.
    3) The lack of citizen registration laws in the UK contributed to a general sense of chaos.
    4) Recovering from their pub-crawls the locals found that the EU was a convenient target and furiously blamed. Devious personalities saw their chance to make hay.
    5) Lack of a formal constitution made it easy for advocates of direct democratic methods to drive the debate and challenge the traditional representative democratic order.
    6) The lack of an effective legal framework to govern such questions made it possible for the advocates of direct democratic methods to propose a plebiscite that would allow a simple majority to determine the future of the UK’s relationship with the EU.
    7) Tory arrogance and congenital monarchic sympathies blinded Cameron in a critical moment when he endorsed the plebiscite
    8) The opposition first and foremost Corbyn and Labor failed to defend the representative democratic order
    9) The EU failed to modify their freedom-of-movement policies in recognition of the fact that labor market regulations in EU member states are not harmonized.
    10) The Brexiters won and in doing so undermined a fragile representative democratic order.
    11) Persistent claims by members of Parliament that they are determined to realize the will of the people, as expressed in the hair-thin results of a plebiscite, indicate that they are fatally conflicted in their duty as representatives.
    12) The chaos benefits the enemies of democracy.
    13) The EU is acting with remarkable cohesion and restraint if not brilliance. The crisis will go down as one of its proudest moments.

    1. Ataraxite

      I’m not entirely convinced the EU has handled all this with brilliance. Cohesion and restraint, yes, but that’s more because it’s a bureaucratic structure under external attack, and has responded as any such structure does.

      I think the EU could have been stronger in dealing with the UK, so as not to arrive at the position where we are now where No Deal is a serious, even likely option. They have continued to feed the delusion in the UK parliament that there are any other choices than the WA, No Deal or revocation of Article 50. They failed to realise that by permitting any extension, they destroyed any (grudging) majority for the WA in parliament – primarily amongst the Labour party.

      One day, the UK will have to pick amongst those 3 choices. The longer it takes for them to do so, the more likely No Deal becomes, either through design or fatigue.

      The EU will, of course, grant an extension when it is asked for at the next EU Council. If they are wise, they would very clearly indicate that it will be last extension granted.

      1. Which is worse - bankers or terrorists?

        I would tend to agree, thinking if the kind of hardball negotiating that is occurring between the EU and UK that is not sensitive to the people’s interests occurred during the Cuban Missile Crisis, we would all be dead by now.

    2. vlade

      The EU made a large mistake (which this blog could not understand and called out) of giving her lifeline in late 2017 when it could have forced a crisis then.

      Unfortunately, this is “Classic EU” to paraphrase John Crace – kick the can down the road and hope for the best.

      1. Which is worse - bankers or terrorists?

        Why they forced a crisis when Germany is entering a recession I will never understand.

      2. FKorning

        The greatest mistake the EU made was discrediting or discouraging EEA options,
        which would have been the rational gradual devolution approach. In the light of the undecided British public and its confounded politicians, only an incremental change, ie exploratory change, withreview and realignment every few years makes sense.

        1. Anonymous 2

          It was Mrs May who slammed the door on EEA options. Barnier produced his famous staircase of options for the UK to choose among, but the Lancaster House speech pushed the UK down the stairs.

          1. FKorning

            Mea culpa, you’re right. It was on the table. UK intransigence is to blame.
            We should just follow the Barnier staircase as a master devolution plan,
            checking every 5 years with the public before descending another step.

    3. Larry Taylor

      > … the will of the people, as expressed in the hair-thin results of a plebiscite …

      While obviously not a landslide, 52-48 is hardly ‘hair-thin’. Perhaps a margin of 1% or less would qualify for that description; not 4%.

      1. bmeisen

        The next lighter shade then, something like “squeaked by” or “underwhelming”. My point is that given the gravity of the consequences, which I believe were not ignored in advance of the plebiscite, a two-thirds majority would have been reasonable. Also, given the gravity of the consequences a 2% swing is closer to “paper-thin” than it is to “could-drive-a-truck-through”.

        1. Clive

          The problem with that logic is that Article 50 could be triggered by any UK government with a working Parliamentary majority. A reasonable majority in Parliament can be achieved in the UK by a party polling in the 45% share of the vote range. So why should a referendum have a higher threshold?

          And what about precedent? The Scottish Independence vote was on a straight majority basis — so if you need a super-majority for leaving the EU, why do you then not also need a super-majority for any future Scottish Independence vote? Or NI Border Poll?

          1. bmeisen

            I am not sure why you suggest that I would see Scottish independence differently. By all means, a super-majority for a decision as consequential as Scottish independence. The SNP are not the highland heroes of whom political romantics dream.

            1. Rhabyt

              Probably for future Scottish independence, (and retrospectively the 2016 referendum) would be better with two separate 60% threshold votes: one to approve seeking a deal on withdrawing and one to approve the deal that was found.

  3. Ignacio

    Thank you for this reporting and “our” (if you let me feel inside a community) commenters doing a terrific job as usual. Being BoJo PM, and if a snap election by oct 15th can be ruled out, would it be wise (in ultra’s sense of wisdom) to disobey Parliament’s law to the limit of forcing 31st october brexit? They could risk a very chaotic start and the willingness of the EU to make things smooth could evaporate with Johnson in charge. What is the timing, the limit, for a no-confidence vote to succeed and yet allow to form a government that can ask for an extension on time?

    1. Clive

      Yes, it’s the Daily Express so you have to read past the awful invective, but this does describe the issues and the constraints along with a helpful table of dates:

      In short, if Parliament sits again on the 14th October and there’s a Vote of No Confidence against the government, the opposition has 10 days to form a government. Only by forming a government can the opposition then either request an extension from the EU Council or rescind Article 50. Any opposition government would be made up of at least three parties or factions of parties and could not form a long-term government. An election would be all-but essential, which would be, as I’ve described above more fully, a “Brexit Election”. So I don’t get at all why the opposition doesn’t agree to an election in today’s Parliamentary sitting.

      1. Ataraxite

        Because if they force Boris to request an extension, it will reinvigorate the Brexit Party, which will split the Leave vote at the expense of the Conservatives. If they go now, Boris can still claim to take Britain out by October 31, and so neutralise Farage and co.

        (Also, none of the opposition parties trust Johnson, and don’t trust that he will find some gambit or scam to not ask for an extension, or even push the election beyond October 31.)

        1. Clive

          Johnson has all-but signalled a pact with the Brexit Party. This is the reason for the purge of the Conservative Remain’ers. Johnson has banked — correctly, I would say — that what he loses on the displeased Remain Conservative voter swings, he gains on the No Deal Brexit Labour (and other parties, too) voter roundabouts.

          Johnson does not have to (and even if he does, he won’t) agree to an extension as a result of the Bill awaiting its 3rd reading now. This is merely political theatre and posturing by the opposition parties. I believe we have said — and we presumably all agree who read this site — there is no such thing as “no No Deal”. So the Bill in no way “takes No Deal off the table” or any similar nonsense.

          And the “we are doing this because we don’t trust Johnson” is simply ridiculous. May resigned while Parliament was sitting. Everyone knew there’d be an election in the Conservative Party for a new leader. It was odds-on right from the start this would turn out to be Johnson. Johnson certainly did not keep his policy for Brexit somehow hidden or misrepresented. So Parliament knew months ago it would be Johnson as Prime Minister and knew what that would entail. Parliament did absolutely nothing — when it had the luxury of far more time than it did now. At any stage, Parliament could have passed the Meaningful Vote on the Withdrawal Agreement. It could have tabled a Vote of No Confidence and won it. It could have tried to use the Emergency Debate procedure to force a rescinding of Article 50.

          It did none of these things.

      2. Ignacio

        Thank you Clive!
        May I suppose that during the prorogue up to october 14th the Labour and LibDems will be negotiating composition and terms of such a government and making sure they have enough support? I see they have their respective annual conferences in the meantime.

      3. MisterMr

        Correct me if I’m wrong, but it seems to me that the UK can ask for an extension on october 17 at the latest. There are no other scheduled EU meetings between oct 17 and oct 31.

        So even if they have their no confidence vote on oct 14, it is impossible to have new elections in time to ask for an extension from the EU.

        Hencce they have to force Johnson to ask the extension himself, for procedural reasons.

        1. Clive

          The opposition parties could agree to an election today. They could win that election then do whatever they liked with regards to Brexit. They won’t, because they don’t trust the voters. The Bill to “outlaw” No Deal” is not legally water-tight and even if it is, Johnson could ignore it or challenge it in court (which would delay proceedings sufficiently so as to make the provisions in the Bill irrelevant). So the Bill is only window dressing — the Sideshow Bob of British politics.

          1. MisterMr

            “The opposition parties could agree to an election today.”

            But could they have the elections in time to have a new government by, say Oct 14 (assuming they don’t want to have a new PM in by Oct 17 morning and same guy asking for the extension in tthe evening of the same day)?

            My understanding is that Johnson’s gambit is that he can force the new elections to happen after brexit day (hence two weeks after the last useful day to ask for an extension).

            1. Clive

              An election timetable is mandated by the Electoral Commission — 25 Working Days.

              Once the writ is moved, this is inviolable. All the opposition had to do was ensure that the writ was indeed moved. Instead, they spent a week faffing around with a nonsense Bill to “outlaw” No Deal. Plus all the other time-wasting they did before the Summer Recess.

              An election result which came in on the 14th October would allow two weeks to form a government, pass a new Queen’s Speech and request an extension from the EU Council, pass the Withdrawal Agreement Meaningful Vote or rescind Article 50. The slight snagette, for the opposition parties, is that you have to first win that election.

              1. PlutoniumKun

                Isn’t it true (I can’t find confirmation of this), that it was in the power of the Lord Chancellor to delay moving the writ for several days? I can’t find anything indicating that the writ must be moved on the day of a vote of no confidence.

                1. Clive

                  Yes, there is a smidge of wriggle room moving the writ, but not much. From the Parliamentary note I linked to above:

                  Where there is an early election, following either a vote of confidence, or decision of two thirds of the House of Commons, the proclamation to summon a new Parliament would include the date of the election, as provided for in section 2 of the Fixed-term Parliaments Act 2011.

                  A royal proclamation is a formal notice issued to the people by the Sovereign. The role of proclamations in modern times has diminished, but the most important are those which announce the accession of a new Sovereign, and those which prorogue Parliament. The draft of the proclamation is submitted for approval and signature to the Queen in Council. At the same time an Order is approved, directing the Lord Chancellor to cause the ‘Great Seal of the Realm’ to be affixed to the proclamation. The proclamation takes effect the moment it is sealed.

                  (my emphasis)

                  The key wording is “directing”. In law, a “direction”, to quote from the legal definitions dictionary, is “synonymous with instruction”.

                  This is pretty clear — the Seal must be affixed and while a day or two’s dithering and excuses might be get-away-able-with, a week would not be justifiable. If the opposition had moved to dissolve Parliament on Tuesday last week, they would have had Friday to chase up and get enforced any foot-dragging by the Lord Chancellor and even keep today as contingency to pass a motion of contempt of Parliament if he’d not done so.

                  This requirement to act is only amplified by the fact that it is the sovereign’s seal which is being withheld, in effect the Lord Chancellor would be disobeying a wish emanating directly from the sovereign

                  It was merely a lack of political will which prevented opposition action, not procedural constraint.

              2. DaveH

                I’m curious to know what law you are quoting from here (Clive, above PK’s post). My understanding is that the choosing of the date is a prerogative power and amending the date of the election once announced is absolutely in Johnson’s gift.

                As an example, what happens if on the day before the election there is a massive weather event, a huge terrorist attack or a declaration of war? With whom does the power lie to postpone if deemed in the national interest, if not the Prime Minister of the day?

                1. Clive

                  See above. Once the motion is passed, there is very little latitude for prevarication to delay the issue of the writ and the affixation of the Seal.

                  There’s always civil contingencies which could be invoked, but then again, as per my earlier comments, Parliament shouldn’t have let the matter drift when they had ample opportunity to Do Something.

                2. Jabbawocky

                  ‘If an early election is agreed to by MPs, the date of dissolution (and the early general election) is announced by proclamation – made by the Queen on advice from the government (in effect, allowing the government to set the date of the election). This was the case ahead of the 2017 General Eection. On 18 April 2017, MPs voted by two-thirds majority to trigger an early general election. A proclamation outlining the date of the election and dissolution was announced on 25 April 2015, and Parliament was dissolved on 3 May 2017.’

                  Institute for Government

    2. David

      As I mentioned last week, once a law receives royal assent and is promulgated, it is in the name of the Queen and parliament (the government as such is not mentioned in the enacting formula). This threatens to be more than parliament vs. the executive , and rather closer to the dreaded struggle within the executive itself.

  4. John A

    I suspect cute hoor would translate as ‘street wise’ in England, perhaps?
    What is most absurd about the whole pantomime and the ‘get it all over with, with or without a deal, asap’ the people have spoken crowd is that, at some point, some kind of deal with the EU must be reached if any kind of trading relationship is to be continued. A no deal is simply kicking over the negotiating table and stomping off. Sooner or later, Britain is going to have to come back to the table, reassemble the table and restore the various items strewn around the floor, and sheepishly say ‘sorry, I was a bit tired and emotional at the time. Can we start again?’.
    This is something that has seemingly got entirely lost in all the name calling back and forth.

    1. vlade

      It hasn’t got lost. It was never explained.

      The problem is that, well, not Remain, the anti-no-deal Brexit alliance (which is quite broad, and that’s why it has a chance), failed to come up with a good metaphor. No-dealers have their “clean break”. It was never challenged on an emotional basis – and rational doesn’t matter here.

      Most people don’t do complex, and because complex was used so many times by pols to say “not gonna happen”, they don’t believe pols when they say “complex”.

      1. c_heale

        The problem in my view, is that no politicians have been campaigning for revoking Article 50, until today when Swinson, said the Lib Dems would campaign on it. So since the referendum, politicians have only been standing for some form of Brexit. I expect the Lib Dems to do very well in any Brexit dominated election.

  5. David

    We obviously should not write off this crew of crooks and shysters just yet : that would be as misguided as the idea, current until very recently, that they would sweep triumphantly all before them. As I said in one of my comments last week, the best way to understand the current situation is to think of it as the opening of possibilities which were previously closed: the arrival of a necessary, but not sufficient, set of conditions for some kind of resolution of the problem. As Yves says, the government has managed to do what the different opposition forces could not: get those forces to work together. True, it’s a limited agreement for a limited purpose, but the only way out of this mess is going to be through a series of relatively small steps, most of which are not obvious at the moment.
    The Guardian had a story last week suggesting that members of the rebel alliance had been to Brussels to sound out the EU about next steps. If true, this is a welcome development. It’s absolutely fundamental to any diplomatic process, which is why May’s failure to do it is even more indefensible. It should also help to persuade other nations that there are actually grown-ups in the room who know what they are doing. Certainly, European capitals will be feeling privately a bit of relief after last week. The state of pissed-offness in those capitals being demonstrated in the Politico article is essentially directed against the present government, from whom nothing can be expected. The French comments have to be seen in this light. Le Drian is a Macron toady (he was previously a Socialist Minister) and is reflecting his master’s views. They are primarily for internal European consumption (ie France will be taking a hard line again at the next Council) but also designed, I think, to increase the sense of crisis. The French will have judged, like other European states, that the best chance of resolving the crisis lies through getting rid of Johnson and the Tory government, and I think they will do what they can to help that process. Once again, that’s not a sufficient development to solve the problem, but it is a necessary one.
    Finally, one factor that’s been overlooked in the mass of commentary this week is the influence of fear. You can argue that the whole Brexit saga began, and has continued, from a sense of fear. Cameron, May and now Johnson have all been driven to do stupid things by fear of losing support to ultras on Europe, first within the party and then outside it. Politicians are notoriously paranoid and insecure, and Johnson will be in a state of panic, assessing, correctly, that the Tories, and his premiership, could be eaten alive from one side by the Brexit party and the other by the LDs if he can’t get the UK out by 31 October. So the chaotic policy leaps and fantasies of deals next month are not because he seriously thinks there is a solution, but rather he’s clinging desperately tp the hope, no matter how faint, that there might be.

    1. PlutoniumKun

      My reading of the current Irish view – which is likely to mirror the French view as there has been an enormous amount of liaison between France and Ireland over this, is that the best hope is for a crisis which forces Johnson out in October, leaving an interim government desperate to do a deal, any deal. There are background discussions going on to focus on the details of bringing back the Irish sea backstop. Essentially, whoever is in charge (maybe a Tory, maybe Corbyn, maybe whoever), could then present this as a victory, and a coalition could be cobbled together to get the WA over the line.

      One reason why this option is being raised again is that it seems that the DUP have effectively been neutralised by Johnsons loss of Tory numbers. They are now just another group of MP’s who will have to be persuaded to vote for whatever the PM wants, with no more importance than LibDems, SNP, etc. They are also terrified of an election because they believe they’ll be reduced in number to less than SF due to advances made by the Alliance Party. So the calculation is that the Tories will feel able to jettison them if needed. And reverting to an Irish Sea border would seem an ideal compromise that would allow everyone to declare victory (except the hard Remainers).

      1. vlade

        Ideal WA compromise you mean.. There’s still the battle for the future relationship, including what can or can’t be done in a two years transition period (not much). But it will be way less public fight IMO.
        BTW, does anyone remember whether the dates in WA are absolute or relative? Because if absolute, then the “two year transition” is really “just about a year transition, maybe less”.

        Paradoxically, as the Brexit shambles stopped dead most of the -xit parties in EU, once there’s a WA and a transition period, it may look (for the next couple of years, maybe) like the UK is actually in an ok shape and these can be reinvigorated. With an argument “We have no Irish border!”.

        1. Ignacio

          The date of withdrawal is absolute, but I guess this could be modified.

          This Agreement shall enter into force on 30 March 2019. In case, prior to that date, the depositary of this Agreement has not received the written notification of the completion of the necessary internal procedures by each Party, this Agreement may not enter into force.

          1. David

            Article 185, but the date has already passed. I can’t find any other references in a quick run through the text. I suppose the date was chosen to give time for ratification etc. but it would be more usual to set a date which depended on various concrete things having happened. Which of course they haven’t. I really have no idea if this means that the WA would have to be renegotiated, or whether some kind of codicil could be agreed. The problem is that the WA is trapped in that grey area between agreement and implementation.

        2. PlutoniumKun

          Yes, well of course even getting a WA across the line is just giving everyone a moment to breathe, but from the point of view of the Irish and EU, its a very valuable time to deal with other matters. Not least, in Ireland Varadkar is desperate for an election before his polls sink even lower, and delivering some sort of WA would be seen as a major boost for him for a spring date with the electorate.

          My reading of the situation behind the scenes in Ireland, is that they are working feverishly for some sort of deal (ideally, bringing back the Irish Sea border), but are not quite panicking so much over a no-deal. The EU has already agreed to go easy on the details of managing the border so from the point of view from Dublin if anything Irelands position would be strengthened following a no-deal. London would be desperate for a deal with the EU so Ireland just has to hang tough and all the concessions will be from the other side. The Irish establishment is entirely united on this so there is no pressure whatever on Varadkar to concede anything. This is where London has completely miscalculated – their arrogance greatly strengthened Varadkars hand.

          Incidentally, the latest update report from EY (formerly Ernst and Young) is that the economic hit to Ireland will be entirely in rural areas – if anything Dublin will benefit. So the government will be reasonably confident it can persuade the EU to provide the necessary supports to Irish agriculture and tourism to ease the pain, in the meanwhile squeezing as many high level jobs from the UK as they can.

      2. a different chris

        An Irish Sea border would be the one good thing to come out of this. The Kidz Are Alright – by that I mean they are pretty much all atheists these days – and as they come into power in Northern Ireland they may even be able to accept being just “Irish” rather than IC or IP. Right now they have no country, Ireland itself doesn’t like them and the British absolutely look far down their noses, when the penetrate the upper-crust consciousness at all.

        Methinks ideally, for the rest of us anyway (and again nobody gives a family blog about NI or current Ireland actually), NI becomes just another part of Ireland again. Unfortunately as always what’s way more powerful than the emotional issues of dying religions is that NI just costs a ton of money. The EU would have to accept chunking big checks over the threshold to keep that from being not only a form of resentment but a major blow to Ireland’s growth capability.

        Is there anyway we can simultaneously pretend NI is, to the rest of the world, just a state region in Greater Ireland so the EU doesn’t have to admit it, and what interests they have they will have to try to channel thru (current) Ireland’s EU rep, but at the same time pretty much not give them any say in (current) Ireland’s government or vice versa? Lots of people live in the house, share bills, and can’t stand each other but have really no other choice. Sounds like a model! I suspect the EU charter has something about democracy in there, unfortunately.

        Maybe we can fake it. We sure fake democracy in the US, should be able to give them some hints.

        However, the flip side of the EU is that since pretty much all business rules and regs falls under EU control anyway, there won’t be any day-to-day difference except when they have to deal with Britain. Which they really need to wean themselves off of anyway.

        PS: no I don’t think Brexit under BoJo is a good thing at all, just trying to geographically limit the damage. Can’t think of how to help Scotland at all sadly.

        1. a different chris

          “part of Ireland again” — sorry, ignorance showing not sure it was ever really part of the Ireland that exists today — but you get what I meant.

        2. PlutoniumKun

          I’d agree that an Irish Sea border could end up very well for the island of Ireland. The great failure in Belfast is that while a core of the Belfast establishment has realised that it could be a ticket to prosperity – NI becoming a sort of entrepot between the UK and the EU – they have failed miserably to communicate this, mostly because the party of the establishment – the Ulster Unionists, foolishly tried to match the DUP for Brexit rhetoric and ended up trodden underfoot from both sides.

          I think the ideal for north and south would be some sort of weird hybrid sovereignty status – the UK already has this with its distinction between Crown Dependencies and the UK and the Commonwealth. So NI could slip from the UK to becoming a CD like the Isle of Man or the Channel Islands (hopefully without their tax laws), while having a sort of associate membership of the EU via Dublin. It would be unusual in legal terms, but there are plenty of odd constitutional arrangements around the world you could use as precedents. After all, if the sporting world can declare that a Belfast sportsperson must be ‘Northern Irish’ if a soccer player, ‘Irish’ if a rugby player or a boxer, or ‘Great British’ if a track and field athlete, then another layer of ambiguity should be possible.

          Scotland is in a severe bind. To me they can either stay on the sinking ship and hope it doesn’t go under, or dive into the water and swim for a shore over the horizon. Neither seem great options.

        3. FKorning

          This is entirely possible by reverting to the Common Travel Area treaty, which allows frredom of movement for British and Irish, and predates EU adhesion. This should keep the peace well enough. As for the spurrious claim that NI cannot suffer to be in a different customs or jurisdiction than the rest of the union, there are plenty of UK territories (Channel Islands) that are in anomaly already. So there might very well be territories, nominally in the UK, which would be in an EU customs union. NI and Gibraltar being likely candidates. A border at sea seems the most likely solution to tte imbroglio.

        1. Synoia

          And the opposition’s response is a Gallic Shrug, followed by “Quoi?” and a decision to go and have a beer.

      3. c_heale

        The DUP may also not do very well in any election, because any supporters of theirs who are farmers, or businesspeople must be thinking twice about voting for them.

  6. timbers

    MIsh Talk is claiming that Johnson has all the tools he needs to ensure Brexit happens and seems to think Brexit is practically certain unless Johnson fumbles and makes a mistake.

    His reasoning seems to rely mostly on the assertion Johnson does not have to give the law Royal Assent and/or he can delay it long enough to ensure Brexit by telling the Queen he needs time to study the law, or advise the Queen to not approve it. That, or challenging the law in court (Mish says the law is clearly illegal) or simply doing nothing and winding down the clock until the extension runs out.

    I don’t know the validity of his reasoning but he’s been claiming this for some time now.

    He also claims that any party or politician that comes our strongly for Brexit, surges in the polls.

    I’m sure others know much more?

    1. PlutoniumKun

      Its certainly been argued that Johnson can prevent the no-deal motion from becoming law (Yves links to a much more detailed article above which explains this), although I think its generally accepted that nobody is quite sure. Curiously, although this option has been discussed in legal blogs, it is little mentioned in the various articles I’ve read about Johnsons options – this could be that the Brexiteers are holding it to their chest as their trump card.

      Its not true to say that anyone coming out strongly for Brexit surges – the polls are far too unstable for this. There is clearly a very hard core of pro-Brexit voters, perhaps 35% or so of the electorate – but they are wavering between the Tories and the Brexit Party, so they are not ‘volatile’ in the conventional sense. In many ways, having an extreme core of hard Brexit voters helps Labour, as this helps the BP eat into Tory voters, and as we’ve seen as the Tories chase them, they end up losing moderate conservatives to the LibDems.

      A key point about the FPTP electoral system is that the distribution of votes is at least as important as your overall quantum. The issue for the Tories is whether the votes lost to LibDems will matter more in a real election than votes won from anyone else for taking a hard line. The guessing is that the lost Tory votes ‘count’ more as they are more likely to be in suburban/commuter belt type marginals, rather than the ‘gains’ in firmly Tory/Labour inner cities, shire areas, or small towns. That said, the Tories themselves seem very confident that a hard core of Brexiters can get them over the line, so maybe they have access to very granular data that convinces them a very hard line helps them. But remember how badly both internal and external pollsters did in the last UK election.

      1. David

        I would simply refuse to believe anyone who thinks they can predict the results of a Brexit election. The number of independent variables is overwhelming, and historically “issue” elections have tended to be turned into more general competitions.
        I’m not sure on what basis a law could be argued to be “illegal”. As far as I know it has never happened before, and it’s not clear who would judge or how. Laws do not have to be originated by the government (although most are) and Private Members Bills on controversial issues are not uncommon. I don’t think there is a body that could decide whether the law somehow exceeded parliament’s powers, and I don’t think the Queen would be very pleased if Johnson got her involved in his electoral hi-jinks.

        1. Clive

          I agree — the law, in terms of lawmaking as a process — is perfectly valid. And no court can intervene in the ability of Parliament to make whatever laws it sees fit to make.

          What is in play is whether any infraction of that law is justiciable. By making, or attempting to make, an overtly political decision (leaving the EU and on what basis) not a matter for Parliament, but in trying to make the enforcement of a political decision the responsibility of the courts, Parliament has conjoined two of the four arms of state (the sovereign, the legislature, the executive and the judiciary) which must — and this is such a basic principle, we are talking all the way back to Magna Carta here — be keeps separate.

          Parliament is trying to outsource politics to the courts. Worse, far worse, it’s not just any old politics it’s foisting on the courts, it’s the exercise of the Royal Prerogative, that most sensitive of executive action tools. Thus Parliamentary carelessness is mushing the legislature, the executive, the sovereign and the courts into a £1-store quality sausage roll of constitutional gristle and flaky pastry.

          1. David

            If I were arguing the case I would say that the law was purely procedural, in the sense that it required the PM to carry out certain tasks by certain dates. It doesn’t tell the PM what decision to make, and indeed it expressly provides that a settlement could be reached without saying on what terms. In theory, at least, it has no influence on the final outcome of this grisly process. Whether that would be accepted, I have no idea.
            But the point about whether it’s justiciable cuts both ways. The Courts are certainly not going to help Johnson any more than, perhaps, they will help the opposition. That said, I assume that any attempt to get a court to enforce the law would be on a very narrow and technical issue of contempt only.

          2. Mark

            This argument seems very weak to me. If a law, any law, is legal and valid then it follows that the courts of the land must enforce it. Otherwise they are guilty of dereliction of duty themselves. If parliament is indeed allowed to make any law they please then it does not matter that in infringes on anyones rights or privileges. In case that it actually matters that the law infringes on the royal prerogative parliament obviously can not make any law it pleases and the courts would have to declare the law illegal and invalid.
            In other words, if parliament decides to make a law micro-managing the PM in his dealings with the EU, and that law is legal and valid then it follows that the courts must enforce it. Just like they would enforce a criminal offence or contract law. By making the law parliament has already taken the political decision, enforcement later on is required and about as political as a parking ticket. Even the decision whether parliament may write such a law is taken by political actors (constitutional assembly in most countries, previous parliaments or precedent in the UK?) and the courts have only to interpret the decision in their ruling.

  7. vidimi

    i am not sure that jezza wouldn’t mind if he was outmanoeuvered by de pfeffel johnson on brexit. that way, he can have brexit without taking any ownership of it. the tories will be left holding the hand grenade when it turns into the fiasco it is expected to be.

    1. PlutoniumKun

      This must certainly be a matter for discussion at Corbyn HQ. If your sole aim is to take power, then I think a perfectly reasonable strategy is to wait until 2020 and the post Brexit fallout becomes clear to the electorate. But as we’ve discussed her before, there is a real danger of a ‘pox on both your houses’ mood in the electorate which could sweep Labour away with the Tories.

  8. flora

    Oh, the irony of BoJo: he runs on Brexit claiming it will return Democracy and democratic control to the UK, then tries shutting down Parliament. That’s the very essence of democratic government…not.

    He almost makes T look like a paragon of gravitas.

    The more I consider his boyish, side-swept bangs haircut the more I think a tiny, blond mustache square beneath his nose is just the thing for his style. /s

    Very sorry UK has to deal with this madness.

    1. Ignacio

      I think an interesting thing about brexit is that, because of division in public opinion, it has become a rare example of high profile, typically secretive or straigthforward policy that has morphed into a public battlefield. It shows the bare reality of politicians taking decisions with the only objective of gaining power and being clueless on technical stuff. In this sense this is being very… ‘democratic’ for those paying attention. For these reasons I believe that the outcome will, or at least should, depend on general elections that will somehow work as a brexit plebiscite. I think that even BoJo must now realise that accomplishing his promise without a final say of the electorate is too risky. I am ready to rule out a hard brexit on 31st october.

      BoJo cannot say that UK voted for a hard brexit, and I cannot recall a brexit absolute date limit set in the referendum as BoJo is trying to bring now.

    2. moss

      “return democracy and democratic control to the UK, then tries shutting down parliament”

      hmmm … actually, what he shut down is representative “democracy” which doesn’t always conform to the will of the electorate. For example, Henry Paulson’s $700b bailout that flew through congress against, as I understand it, an enormous popular majority against doing this.

      In the UK there’s no veto over laws on the part of the PM

  9. Lee

    A pair of rampaging blonde beasts in charge of two principal components of Anglophonia. I find myself equipoised between horror and delight, and all atingle with anticipation for whatever lies ahead.

    As to Churchill being a great diplomat and statesman, all I can say is that Hitler made even Stalin look good for awhile.

  10. Summer

    Re: “Brussels won’t grant the U.K. a Brexit extension beyond October 31 if circumstances in the country remain the same, Jean-Yves Le Drian, France’s foreign minister, said Sunday. “The British must tell us what they want,” he told Europe1 radio.”

    I take that to mean unless they can guarantee remain.

    1. PlutoniumKun

      The French have made it pretty clear they have no interest in Britain remaining. A sullen UK dragged back into the EU on existing terms would be a nightmare for the EU, and they all know it. It would make getting any sort of business done impossible. That statement is a simple reiteration of European exasperation with the UK’s utter failure to tell the EU what they want post-Brexit.

      1. Rhabyt

        That said, the French also don’t want to be seen as pushing Britain over the cliff. The Irish, Dutch, and others wouldn’t forgive them. But clearly they have hopes about Boris’ cliff-edge staggering.

        1. FKorning

          Oh how the times have changed! That’s such a radical cultural inversion. Tis the British that are known to have a pint, keep calm, and carry on; whilst the French are known to philosophically pontificate and gesticulate over a glass of wine before going home.

  11. Camp Lo

    If one were to seek out liberal democracy’s most self-destructive actors, Brexit is the flag one would raise and watch to see who salutes it. Those citizens would elect the government equivalent of a single-car fatality. The Trump presidency is another example, find the supporters of which whose first instinct is to drive right into ditch. Tired of your representatives performing adequate governance? Vote Brexit. Or Trump. Both accidents of history hailing from overrated islands.

    1. flora

      I’m not sure I’d call the US dem establishment ‘adequate’ governance for most of the people; great governance for Wall St and the ongoing looting of Main Street, great governance for the 0.1%, yes, but not for most of us, imo.

  12. Andrew Thomas

    If the recent bill on the prevention of a no-Deal Brexit was formatted like the other, earlier one, it would have forced Johnson to ask for an extension, but not to embrace it. That indicates to me that if the EU offered it, in response to the request, Johnson would be within his power to say no. The situation now creates a constitutional crisis which is without precedent, apparently.
    As a practical matter, it is clear that any “Irish backstop”, or “hard border “, or whatever, will have to have any necessary infrastructure within the Republic, as the U.K. has made it clear it will not take any actions regarding it. Does anyone know whether any such preparations are underway, and, if they are, how close they are to initial completion? If the EU has not yet, in partnership with the Republic, taken some serious steps to do that preparation, it would seem to mean that the EU is just planning to kick the can down the road again, and is counting on being asked to do so.

    1. PlutoniumKun

      There was a detailed article about this by Tony Connelly on the RTE website on Saturday. Short version is that yes, there have been feverish behind the scenes negotiations on this, the shorter version of which is that the EU will turn a blind eye for a short, unspecified time, and Ireland will be allowed to gradually build up infrastructure and inspections over a reasonable timeframe – this is likely to depend very much on the volatility of the border region. The initial ‘border’ will not be on the border itself (too likely to stoke up violence), but would be at ports and at the factory gate. The NI authorities will probably co-operate with issues like food and animal regulations as they don’t want to disrupt dairy/beef movements.

      The UK will start by beefing up the border they claim doesn’t exist, but actually does – the ferries between NI and Britain. They already use this as the main ‘boundary’ for checking for illegal immigrants coming via the republic and for other goods.

      The key question for the British will occur when they suddenly discover that thousands of tonnes of hazardous waste are moving from the Republic into Northern Ireland – the Republic has no hazardous waste treatment/disposal facilities for most major forms of hazardous waste. The cheapest route for Irish industry will be into holes in rural Northern Ireland. Also, a lot of refugees in Europe may realise that Ireland is their best way to get into Britain (assuming Britain is still seen as a place worth going to for refugee). This I think will be the first thing to make London realise that borders operate in two directions.

    1. Ellery O'Farrell

      One result is that it removes the argument that Queen’s Consent was required The Office of Parliamentary Counsel published a pamphlet dated Sept. 2018 on “Queen’s or Prince’s Consent”; Sec. 7.13 states explicitly that the “issue of consent is entirely a matter of House procedure and becomes irrelevant once a bill has received Royal Assent.”

      That being so, many sources have rather confidently stated that if Boris Johnson were to defy the law by not sending the letter, an injunction would be available to authorize another officer to sign and send it in the name of the Prime Minister. Or he could be found in contempt of court, with jail a potential penalty. One of the sources (don’t have time to track down others) is the BBC at, especially the end of the article. Which also mentions other possible methods, but points out difficulties with each of them.

  13. Tom

    I’m still confused about parliament being prorogued and the need for a vote in the commons to hold an early election. The parliamentary session ends today. If the commons does not vote for an election today, the next opportunity will be after the new session begins Oct 14th. If they did so, the soonest an election would take place is mid November. Is that right?

    Another question, does Theresa May’s government’s approval of the Withdrawal Agreement still hold any force or did that end when Johnson became PM? In other words, would parliament’s approval of the WA have any effect if the Johnson government opposed it?

  14. Rhabyt

    Well, Boris just lost the vote for a new election.

    The earliest one can be called is October 14 and that would be after a lighting vote of no confidence and appointment of a caretaker PM. Twenty five days after that is November.

    The question, from Boris’ language in the HoC today, is whether he will publicly defy (via legal evasion) the Benn-Burt Bill. After a VONC, I would think that a caretaker PM could deliver the request for extension to the European Council.

    Either way, it is difficult to imagine not having an election in November.

    1. Clive

      I agree this is the most likely outcome now. Labour are signaling it pretty strongly. There are several risks, not least an unwillingness of the opposition to be seen to be the ones installing “Prime Minister Corbyn”. There’s no guarantee Corbyn will agree to step aside or, indeed, a compromise candidate can be agreed. And no-one is going to be exactly thrilled with going to the polls the last week of November (which would be the absolute earliest) or the first week of December, voters rightly concluding this could have all been done in October and delaying achieved nothing.

  15. VietnamVet

    Brexit is the ultimate failure of corporate media to inform the public in order to fluff up their owners’ wealth. A no deal Brexit crashes everything taking months, if not forever, to sort out to the detriment of anyone who does not have offshore accounts. London turning into Singapore is a fantasy if isolated from the rest of Europe. A Withdrawal Agreement is more organized. But in the end, this guarantees Scotland’s succession to stay in the EU. A sea border between EU-Ireland and England pretty much assures the restart of the Troubles. It is doubtful that English Tommies would garrison the Protestant areas with no borders to defend and with Wales hinting at joining a Celtic Alliance. The restart of Irish ethnic conflict without outside support would place the Unionists in a position similar to the Tamil Tigers who were defeated by the Sri Lankan Army with enormous loss of life and destruction.

  16. Maff

    “He [Boris] (and D&D) are prepared to destroy the Tory Party if necessary.”

    His is the only way to save it! Imagine we had May v2.0 in charge, dilly-dallying on Brexit-or-not. Farage would not just be a thorn in the Conservative’s side, he would be a stake through their heart. This is the looming existential threat to their party and Boris knows it. Just compare the polling pre- and post-Boris.

  17. RgrNormand

    Considering a) no deal up to Oct-21; b) no indication EU will postpone the final date; c) BoJo efforts to a no-deal Brexit on Oct-31, making it a credible event; Would be a last resort counter measure from MPs to approve May’s withdrawal agreement as a way to get more time to negotiate a real deal afterwards?

  18. Portlander

    It’s hard to see the EU approving an extension for just 3 months. BoJo is right: that would be pointless. I wouldn’t be surprised if 12-24 months would be necessary for negotiation of a new deal with a new government to be possible. Any chance this is being cooked up by the opposition with the EU behind the scenes?

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