Brexit: Whither Boris?

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While this site has always depended heavily on the input of UK, Irish, and European readers to calibrate our Brexit analysis, we’re now at a juncture where internal-to-the-UK political considerations will have particularly heavy weight. Therefore, after an update and some further commentary, we’ll pose some questions to you.

Specifically, we think it is highly likely that Boris Johnson will resign before October 31. The question is which of the most likely paths would be best for his odds of returning as Prime Minister after a general election, which in turn hinges on which would help him at the expense of Farage.

We think our calls on Johnson so far have been pretty good, particularly considering his reputation for erraticness. We anticipated that he’d make a show of trying to win over foreign leaders, although he started a bit later than we expected. Was that to show to UK voters that he wasn’t anxious because the UK has a famously strong bargaining position? Or was it based on his sense of media timing, that there was no sense in trying to keep “a deal is nigh” news on the boil in August. We didn’t think it was likely that he’d go for the “sea border” option (Johnson has tied himself to the Ultras and they’d go mad) but we did acknowledge it was possible.

Today Johnson served up his plan to the EU Commission, which spat it out like a piece of rotten meat. Barnier even got testy. And you can see why. From the Guardian:

Northern Ireland would also stay aligned with EU standards on goods if Stormont agreed by December 2020, the end of the transition period, and then in a vote every four years.

But the UK has also requested that both sides commit at treaty level “never to conduct checks at the border” even if Stormont vetoes the arrangements laid out in the new 44-page Irish protocol.

And from the top of the story:

Boris Johnson appears to be fighting a losing battle to avoid Britain staying in the European Union beyond 31 October after Michel Barnier privately gave a scathing analysis of the prime minister’s new plan for the Irish border, describing it as a trap.

The European commission also refused to go into the secretive and intensive “tunnel” talks with the UK’s negotiators before a crunch summit on 17 October from which the UK had hoped to deliver a breakthrough deal.

Needless to say, Varadkar also gave thumb’s down.

In fact, it not only has been clear that the two sides were far apart, but reports over the last few weeks indicted that the EU side was getting even more frustrated and alarmed because the UK was introducing elements that widened the gap. Not going into intensive talks is the EU saying that there’s no point. This had seemed likely given the Government’s arrogance and cluelessness, along with considerable personal antipathy in the EU for Johnson. And on top of that, it has not gone unnoticed that if the EU and UK miraculously came to an agreement, this Parliament would not give Johnson that victory by approving his deal.

So all that is a surprising, and it should not be all that surprising, is the EU isn’t trying to pretty up the optics.

We did think Johnson would prorogue Parliament again because the Supreme Court ruling effectively said he could do that. And Johnson most assuredly wants the press platform of a Queen’s speech. Acknowledging the ruling, the Government is proposing a suspension of “the shortest time possible,” starting October 8, with the Queen’s Speech on October 14. This results in Parliament being suspended for only three working days. As we pointed out, Parliament has been somnolent, so MPs can hardly complain that being prorogued for a few days will do any real damage (although you can be sure some will nevertheless try).

Consider the timetable:

Queen’s speech Monday October 14

EU Council Wednesday October 16 to Thursday October 17

Benn Act letter seeking extension to be sent October 19

Also consider whether Johnson really wants a crash out or not. It is possible that he believed his own PR and really thought the EU would blink. Some press accounts assert that Johnson is actually afraid of a no deal. Johnson has gone all in, so even if he harbors doubts, he can’t change course now.

It seems close to certain that Johnson will not honor the Benn Act. He could resign after the EU Council and before or on October 19 (he would have to tell the Queen first).

Alternatively, Johnson may send in a letter but take steps to undermine it (various gambits have been leaked, so we won’t review them, but you can read a new one in The Mirror). That would subject Johnson to legal challenge. But subverting the Benn Act, as opposed to straight up non-compliance or quitting, would be more complex and uncertain legally and politically. It would also increase the odds that Johnson would be in office when the UK crashed out. Our sense is that is something he actually does not want.

Remember, before his optimal scenario was a general election right after Brexit, since in the first few days, many companies would hold back on shipment and have sufficient inventories that bad effects would seem to be low compared to all the tooth-gnashing. The scenario is now a later general election, and if a crash out were to occur, the dislocations would be piling up.

That it a long-winded way of saying that the best play for Johnson seems now to be to resign in a way that he can pin the blame for an extension on those meanie opponents. Is the path of maximum blame to take advantage of the press spotlight of the week of October 14 and go out with a dramatic high note? Or is it to defy the Benn Act and deal with legal wrangling and then quit when ordered by the Supreme Court to proceed? Alternatively, Parliament might in parallel try to get the EU to accept a letter from them….which is a precedent they do not want to set. Nevertheless, The Times (which when May was Prime Minister has the worst record on Brexit, regularly running extreme claims that proved to be all wet) says the EU would go around Johnson to grant an extension. Mind you, this could prove to be correct, but I’d like to see an independent report.

The problem I see is going past October 19 leaves Johnson at the mercy of legal and political countermoves, and he might not have a terrific time to quit if he waits.

Moreover, there is the not trivial problem of who is in charge were he to resign. My understanding is the departing Prime Minister is supposed to advise the Queen as to who to invite to form a new government. But Johnson could truthfully say there isn’t a candidate, and even go down the list of prime suspects and explain why.

Vlade argues for later rather than sooner on the assumption that Johnson wants or is indifferent to a crash out, while my assumption is he wants to make as clear as possible he did everything he could to block an extension. From vlade:

If he did it late October, it would create all sort of hell… And technically, he would comply with the law and possibly make so much chaos the UK would be out of the EU by default. Even though I have now heard that if that happened, if it did last just a few days, the EU could pretend it never happened and possibly get away with it – sort of
extend retrospectively. That could give enough time for GE (November, no-one would want to run it in December pre-Xmas). If Tory & co won, they would no-deal brexit, but that would be default, so no loss. If Lab&co won, who would complain and have standing?

The EU is very procedural and rule-driven, so I am skeptical of this “out a few days and back” scenario. It’s more likely the EU would fudge by giving an emergency mini-extension.

There is also the question of what the political cost would be if Johnson openly defied the Benn Act. That would be a bridge much further than original prorogation which many people argued, consistent with the English and Wales court ruling, was kosher.

Clive argued it would not make much difference and could even be a plus:

I’m not sure defying the Benn act will necessarily induce political blowback for Johnson — and it might easily create positive support for him.

The Parliamentary antics are a huge turn off for anyone but hardline Remain’ers. The Supreme Court’s lurch into adopting lawfare isn’t doing any favours either.

And the cherry on the top — a refusal by Labour and the Liberal Democrats to agree to an election — is a gift to Johnson which just keeps on giving.


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  1. Redlife2017

    Yes, I was very testy at my monthly Labour Ward meeting last night, pointing out to the ward chair that it doesn’t matter that they are going to prorogue again since we bloody well didn’t do anything with the time we were given. He said it was illegal. I said that I had read the entire legal opinion and that OBVIOUSLY it was not illegal how he was going to do it.

    At one point during the meeting, someone noted that Britain is a collection of diverse people and not a real thing (i.e. no such thing as being “British”, it is a construct). And several people agreed. I almost ran out screaming. Afterwards, I noted to Mr. Redlife that if that is what the urban Labour people think we will be lucky to come in 3rd place. This isn’t the first time I’ve heard such things, but normally that’s from upper /upper middle class immigrants. These were born and bred Brits over the age of 60 who said that last night.

    I know Germans who moved here from Germany because they can’t stand living in their own culture and enjoy the difference of British life (I feel the same way). And yet there are Brits here who seemingly don’t understand that basic aspect of where they live. To me that does not bode well. It also reminds me of the great Dr. Jung’s paper on Wotan. This is what we are dealing with…not the war, but the depth of feeling.

    1. Watt4Bob

      Thanks so much for that link.

      If you combine Jung’s observations concerning the deep psychic tides that are improperly understood, with the staggering misunderstanding of our current elites as concerns the vast misery that they are inflicting on the masses by their insistence that austerity is the answer, it’s easy to to see that the fuel and the spark are dangerously close.

      I don’t think that the elites in the UK, or the US have any appreciation for the demographics, the vast numbers of people whose economic lives have been on a downward trend for so long, and that have finally hit a miserable bottom.

      I keep hearing people who I would describe as belonging to the credentialed class, or the 10% if you will, who believe themselves quite reasonable describing public opinion as being sort of evenly divided between people who think like them and an equal number, “on the other side”, who disagree.

      The situation they seem to think is a 50/50 split, is in reality an argument between 5% of elites with another 5%, and 90% left totally out of consideration.

      The poor and the precariat outnumber them 10 to 1, and ignoring the fact of their misery, and insisting that they “listen to reason” and continue to have faith in the current politics is pouring gas on the fire.

      1. d

        While I think many have hit bottom I wonder if giving Tories control actually fix it. Aren’t they really the party of elites also? And of business? Who had a strong hand in getting them where they are? Some how I don’t see them fixing. But making it massively worse

        1. Watt4Bob

          What I’m describing is an intra-elite squabble that is ignorant of the forces brewing in the working classes.

          They keep talking as if the working class is divided by party, half on Labors side, and half on the Tories side, I don’t think that is the case.

          I think the working class on both sides of the Atlantic is angry about the level of misery in their lives and they have started to understand that neither party really represents their interests.

          And my main point is that the elites of what ever stripe have no real appreciation for the actual weight of the anger focused on them by the working class.

          1. Mattski

            Yes, but don’t think for a minute that if a more coherent vision of fascism is offered to them than socialist/Labour progressivism that they won’t opt for the former. The sinister parallels that I see to the 30s involve not just the emerging fascists–fairly easily identified, never reaching anything close to majority electoral support, and fairly readily crushed by any coherent political counterforce–but social democrats, liberals, and intelligentsia who understood that they would continue to eat better, and likely suffer less disruption, if they appeased than opposed them. It’s the lack of solidarity of such people with those who are hurting on which the big ugly really turns.

            1. Watt4Bob

              You are right, and don’t doubt for a minute that that “more coherent vision of fascism won’t be offered.”.

              There are already signs everywhere you look.

      2. mi

        There are a lot of Scots, Welsh, Irish who would not say they are “British”. It seems it’s just the English who prefer to say “British”, probably to imply, to ascertain a certain grandeur over others.
        The question of identity is wrongly put and this is also where the drama comes from: ask the English, instead, what means to be English, instead of “British” dominant over others, and the traits are pretty much obvious, there is no identity crisis any longer, and the underlying reason for the Brexit vote becomes obvious.

  2. DaveH

    I stuck this at the end of the previous Out Of Runway post, but feel it’s more appropriate here.

    The vote on the Queens Speech happens the day before the European Council meeting and the Benn Act coming into force.

    The Government loses the vote on the Queens Speech. Johnson stands up and says “I have lost this vote, which precedence treats as a vote of confidence. I therefore no longer see myself as Prime Minister, will not be going to represent the UK at the EC meeting and do not consider myself to be the person to whom the Benn Act refers. So I ain’t writing no letter to nobody”

    He sits down, does nothing.

    What then?

    If he stops short of formally resigning, but blusters about for a few days saying that tradition means he doesn’t have the authority to write the letter, what is the mechanism that the various institutions use to fix that?

    He doesn’t need long for the sand to empty from the hourglass.

    1. Yves Smith Post author

      Oh, I forgot about this completely!!! This is the danger of opining out a political system that is not your own.

      This seems entirely possible, that Johnson laid a trap. The opposition didn’t fall into his earlier one of trying to get them to vote him out of office and trigger a GE before or shortly after Brexit. But they look like fools if they vote for his Queen’s speech and support his Brexit agenda.

      How are the votes counted if there are mass absentions by the opposition?

      1. rd

        The House of Commons needs a quorum of 40 including the Speaker and the House of Lords needs a quorum of 30. So less than 10% of each body needs to be present for a binding vote.

      1. Clive

        Perhaps. But there’s still no letter. And no agreement (unless there’s some serious walking back of red lines from the opposition benches about “no way Corbyn is being PM” without also agreeing to a “compromise” “caretaker” PM).

      2. DaveH

        Then what? There’s no new Government formed due to lack of agreement on who forms it, so 14 days kicks in with an election at the end of it and the UK on the other side of October 31st.

        (edit – in response to Jabbawocky above)

        1. Daz

          BoJo remains PM until a replacement is found. Her Majesty must always have a Prime Minister. If no alternative is found, any attempt to resign is void.

          The FTPA means a defeat on the Queens Speech has no effect on Confidence. The Tories remain the government.

    2. elkern

      Can the Queen/Crown write the Benn Letter if Bojo resigns or declines? When there is no PM, does the Head-of-State function devolve (up?) to her/them? or does it just hang in stasis until a new Government is formed?

      Such a quaint “system” you-all have over there in the Shire! Maybe you’d be better off as our 51st State? Then again, maybe not…

  3. BillK

    At the moment for Boris (and his advisors) Brexit is a sub-plot, not the main objective.
    Boris is the powerless leader of a minority governing party. He cannot get anything passed by Parliament. This has to be fixed first.
    Boris is aiming for the election after Oct 31. Everything he does is trying to get a landslide victory in the next election. If he can blame the EU and enrage the Brexiteers enough he will be successful, as Labour and Liberals will split the opposing votes.
    It is a dangerous route as it will increase the enmity between Remainers and Brexiteers, but politically Boris doesn’t have any better options.

    1. Yves Smith Post author

      I beg to differ.

      Brexit is not a subplot because the Brexit Party is taking votes from the Tories. Boris needs to be certain he cannnot be blamed for an extension, otherwise the Brexit Party will be howling that Boris was complicit or responsible and failed in his big promise when he took office. The Brexit Party will pull Tory votes, making it hard to form any government, unless Boris can neutralize the Brexit Party’s big ammo either by crashing out or being able to unquestionably pin an extension on the other side.

      1. Redlife2017

        That would be my take as well. Johnson wants to neutralise the Brexit Party. He’s a gambler and that’s the gamble and the payoff. Big risk, big reward.

  4. SilverFox

    Boris is desperate for a general election.

    Everything he has been doing points to that. He was blindsided by Corbyn not agreeing to dissolve Parliament in early September – but then decided to carry on campaigning as though an election had been called anyway. He’s visiting a hospital practically every other day. There are loads and loads of Facebook ads unleashed. He’s doing “Facebook PMQs” where he takes questions from Facebook members.

    And because an election hasn’t been called, none of this spending is restricted (once the election is official, then rules about spending start to apply from that date). The Tories have a lot of money to spend, the donors have come back.

    The opposition is torn between those who can see what is happening and want an election too (the SNP, who were arguing for a VONC this week). And those who look at the opinion polls and shudder and want to wait till after October 31st because they believe some of Boris’s support will bleed to the Brexit Party.

    On the issue of the Brexit Party, Farage’s star is waning. When the Supreme Court decision came out on prorogation, Farage called for Boris to resign and was attacked by his own supporters who told him to get behind Boris.

    On this latest deal, Farage has again attacked it – but his supporters then attacked him because they think the deal is a good one as the ERG is on board.

    As regards the big question, “Does Boris want a deal?” I think the answer is Yes. He carefully brought hard-line ERG members like Priti Patel and Theresa Villers into the govt because they’d be bound by collective responsibility to vote for any deal or resign, and they’re not going to resign from plum jobs. It looks like he has the support from the DUP and ERG for his deal, and most of the 21 Tory rebels have also said they’ll vote for it. And crucially some Labour MPs like Gareth Snell have said they’ll vote for it.

    So we have sighted a unicorn: a deal that has a majority in Parliament. The question is will the EU swallow this, their instinct is to reject it but this might be the only deal that goes through.

    The EU may want to gamble that saying No and triggering a general election might bring in a softer more amenable govt. But the polls are saying otherwise. Boris’s support is hardening in the country because Brexit Party voters think he’s being hard done by and are deserting Farage and rallying to help Boris.

    The last time the EU gambled on the extension, they fondly imagined that there was a build up for another referendum. But what actually happened was that the Brexit Party roared to life and Theresa May was forced out.

    My feeling is that he’s going to stay in Downing Street, he will have his election (after the Oct 31st deadline) and will win. At that point he can No Deal if he wants to.

    1. Anonymous 2

      If he got a large enough majority I suspect he would ditch the DUP. Otherwise it is certain he gets nothing from the EU and the high possibility that Congress blocks a deal with the US. Then what is he left with? A deal with Australia?

      1. SilverFox

        Like I said, I think he wants a deal. And he wants one before the election, because if no deal is in his manifesto and he wins, he will be honour-bound to do just that.

        People are playing with fire if they reject this deal, it might be the only one we get.

        1. Yves Smith Post author

          With all due respect, the EU is over the UK. The EU is sick of the time being chewed up with UK theatrics when they have more important things to deal with. They are also getting pissed off. And there has been for >18 months little European press coverage of Brexit and zero political upside for being nice to the UK.

          In other words, they are not afraid of a crash out, which is your and Boris’ mistaken assumption. Even Varadkar, who clearly has the most to lose, won’t countenance this proposal.

          1. BillK

            That’s right! But Boris (and his mysterious advisors) don’t want a deal with the EU. The pretense is required so that no-deal gets blamed on the EU. The upcoming election will be fought on UK independence. This will bring all the Brexit party votes over to the Tories and ensure a Boris victory.
            A wishy-washy deal with the EU would destroy the Tory party.

          2. MK

            Assuming a crash out, who would build the wall in Ireland? Likely neither side, and could Brussels force the Republic to build one – or build one itself without Republic support?

            Would NI have any reason to build a wall on their side? How does a sea border work without an agreement? Perhaps the Republic will be the one having to deal with EU customs, not NI?

            1. Boomka

              Nobody wants walls (customs posts in this case). But if you don’t put them up, and there is no deal, then you cannot accept any goods from NI because you cannot demonstrate compliance with the rules. In case of no deal Brexit, not building a border amounts to imposing full economic embargo on NI, as you cannot accept any trade. Building a border allows some trade to resume in this scenario, so it’s a mercy, not a villanous act.

              1. MK

                Thanks, but again, why can’t UK ships land in NI? And then somehow those shipments end up in the Republic? Once in the Republic, what stops those shipments from reaching mainland EU? Without a border in Ireland, whats stops that scenario, assuming mainland EU is not inspecting every shipment from the Republic? (or vice versa, EU goods crossing into NI, then into the UK proper?)

                1. Iorwerth

                  How about EU draws an iron curtain down the N Sea, through the Channel and out into the Western Approaches? Then they give an almighty bung of assistance to Eire to keep them onside. There would be ways of making sure that genuine Eire-EU trade was given MFN treatment.

                2. Boomka

                  Sure, physically goods can make their way through, but then it is called smuggling, not trade. You will have the usual problems you face when trying to sell smuggled goods, in fact the usual problems you face with any kind of fraud.

                  Anyways, we are arguing semantics here, as border will be put up simply because the rules require it. My point is that border will be put up not because someone wants to make things worse, but because it would be the least bad of horrible choices. In other words, nobody will want the consequences of no border in presense of no deal.

                  1. John k

                    Eu wants a deal that preserves their trade rules. But no deal means at best a very porous border. Ireland will want to continue trading with both Eu and Gb… just as, in fact, Germany does.
                    So some pretend border posts will be built, and ignored. Trade will be restricted but not ended…
                    Somebody said who can Gb trade with, Australia? Actually an ideal partner, big food and nat gas exporter. Maybe
                    Canada, too. And Asia… japan also drives on the wrong side.
                    Boris surprised by the court, maybe has work around… whether he likes it or not, seems 31st is the end.

            2. Jim A.

              What are the EU rules for non-compliance by member states? if the EU doesn’t want massive amounts of smuggling through NI an Ireland what can they do to Ireland to force compliance.

              But my main question is the absolute certitude in UK circles that the EU will OFFER a meaningful extension. With the UK not willing to agree to any acceptable WA, it seems like the options for the EU are a crash out, or perpetual chaos and being used as a weapon for internal UK politics. I have to think that “get it over with already,” is looking more and more appealing.

          3. rd

            My best analogy for Boris is he is a driver on a backroad playing chicken with an object coming at him that he assumes has a driver that will get out of the way. He just hasn’t realized yet that it is a concrete wall he is driving toward.

    2. Yves Smith Post author

      Per the post, the EU has already decisively said no. Varadkar rejected it and the EU Parliament’s Brexit Committee just voted it down. There is no deal here. Even if Johnson could muster the votes for what he served up to the EU, it amounts to breaking the Single Market, which is a red line they will never cross. The Government was told its “non papers” were off track but they refused to change direction.

      The two sides are so far apart that the EU is not scheduling negotiations. This is an impasse.

      So if Johnson thought he could get a deal, he thought wrong. The EU was not joking (and it was VERY VERY VERY clear they were not joking) that the only deal that would fly was the existing Withdrawal Agreement, and they apparently signaled privately the only alternative they would consider was the “sea border”. This has been unambiguous for months.

      What I find striking, and I don’t mean to be offensive, is you seem not to get that either.

      1. SilverFox

        Boris’s position is that any deal that can’t pass Parliament is a pretendy deal/fantasy deal/unicorn deal.

        There are no numbers for the EU’s deal. There are the numbers for his deal.

        So it boils down to this: does the EU really want a deal ratified? Or does it want to have yet another “deal” negotiated that gets nowhere and wastes years of everyone’s time (see the Ukraine deal, TTIP, the Mercosur deal etc all of which were duds).

        1. Boomka

          >> So it boils down to this: does the EU really want a deal ratified?

          Well, let me see. My neighbour threatens me to burn his house, which would cover my house in soot and lower real estate prices in the hood, none of which I want. When I ask what can be done to stop him, he kindly offers me a deal – he will burn my house instead. Do I really want that deal ratified?

        2. fajensen

          The EU will not take ‘a deal’, specifically they will not take a deal that breaks the inner market and especially they will not accept a deal that gives the UK authority over EU’s inner market via Northern Ireland, which is essentially what Boris Johnson has cooked up.

          With this deal, Boris Johnson basically demands to be told to F.O.A.D. by the EU so he can pretend at least well enough to fool The Sun, The Daily Mail and The Express crowds into believing that he ‘tried everything’ but the EU just won’t give poor little Britain a fair shake.

        3. vlade

          The EU will not, and CANNOT take a deal that will break single market.

          It’s something a lot of people in the UK fail to grasp. Asking the EU to break single market is the same as asking a country to give its territory. It’s equal to asking it to break its purpose.

          How would the UK react if the EU’s proposal was “well, just return the NI to Ireland, and Gibraltar to Spain, and then there won’t be any problems, right?”

          Not gonna happen.

          1. Boomka

            >> How would the UK react if the EU’s proposal was “well, just return the NI to Ireland

            This, I think, is at the heart of the whole impasse. UK has been seeing the NI peace process as gradual loss of NI – and UK does not want to give up the territory. Clearly UK think GFA has outlived its usefulness and want their Ireland back. They cannot admit that openly for a number of reasons, which is why what they are saying sounds so cretinous. Everyone is trying to pretend they are being civil while effectively fighting a territorial dispute.

            1. DaveH

              This, I think, is at the heart of the whole impasse. UK has been seeing the NI peace process as gradual loss of NI – and UK does not want to give up the territory. Clearly UK think GFA has outlived its usefulness and want their Ireland back.

              This, I think is a real misreading of the situation. If it weren’t for their former electoral reliance on the DUP, the NI only backstop would have been signed off with barely a second thought.

              The Conservatives would obviously prefer to keep Northern Ireland, but if cutting it loose got them what they wanted they’d do it in a heartbeat.

              The current Labour leadership objected to the Belfast Agreement on the grounds that Ireland should be reunited anyway, and the majority of the public don’t care one way or the other.

              On the long list of “things causing the impasse” the British attachment to Northern Ireland’s place in the United Kingdom ranks somewhere near the bottom.

        4. Ignacio

          The EU wants a temporary agreement, this is not a deal. And the UK also wants it, except hard-core brexiteers. A deal is something much more complicated that takes many years to negotiate. Do you think those you mentioned surged suddenly/spontaneously? If you have read NC before you should know it.

          1. Ignacio

            If anyone believes that the EU would pledge to any deal “because of the numbers”… well, the facts show it was a mistaken belief.

          2. Yves Smith Post author

            A transition period does not solve much. All it does is ameliorate the pain a bit by giving people on both sides more time to prepare.

            The UK will not be able to restructure its economy and processes to deal with the rest of the world, and most importantly, the EU, in less than 5 years and it is more likely 10. There is also no way the UK will get a trade agreement with the EU done during the transition period, particularly given that the UK has a large services sector (services deals take more time than trade deals).

            So you are looking at a crash out at the end of the transition period, but with better prep. But still quite a lot of dislocation.

        5. d

          are we sure that the Boris deal has the numbers? Remember he lost his majority. And if the EU won’t approve, whats the point of doing that

          1. DaveH

            The proposal likely has the votes. All the current Tories plus DUP plus most exiled Tories plus half a dozen Labour. Squeaks through.

            But let’s not start calling it “the Boris deal” for goodness sake. A deal suggests an agreement.

            I expect a motion on “the things we want and scrap loads of the stuff we don’t want” would get through Parliament. It doesn’t make it a “deal”

  5. David

    A head-clearing exercise which might be also useful to non-UK readers.
    Johnson has two, linked , functions at the moment. He is leader of the Tory Party, and, as the leader, consequentially, of the largest party in the Commons, was asked to become PM and accepted. Clearly, resignation in this context means resigning as PM, not as party leader. (Though I have to say I don’t think this combination of circumstances has ever occurred before with an incumbent PM resigning to force a change of government). His objective will be to remain as party leader, to fight the expected election as effectively Leader of the Opposition (LOTO) and come roaring back to take the job of PM again. OK, fine.
    Johnson has two options. He can simply present his government’s resignation to the Queen. This is not the same as losing a vote of confidence (VOC) and would not necessarily lead to an election, although it would mean the search for a new government. The second is to constructively lose a vote. Losing a vote on the Queen’s Speech, it seems clear, is not the same as losing a vote of confidence, so the provisions of the FTPA would not kick in. Thus, losing a vote on the Queen’s Speech just before the European Council (EC) would leave Johnson still PM, and of course bound by the Benn Act. So there has to be a VOC and he has to lose. That could come at any time, though if he did lose a Queen’s Speech vote, it would be pretty inevitable thereafter.
    If Johnson loses a VOC, then the search is on, under the FTPA, for a successor who can show that they are able to form a government. But if the EC meeting falls within that period, Johnson is still PM, and so bound to ask for an extension and accept one if offered. In reality, of course, his position would be greatly weakened with respect to the 27, but he’s still technically responsible. The default assumption is that if Johnson lost a VOC, then the Queen would call on Corbyn, as LOTO to form a government. But an interesting analysis by Robert Craig of LSE suggests that would not be automatic. Effectively, as a result of recent constitutional changes, the Queen will be obliged to appoint anyone who can bring the necessary arithmetic suggesting that he or she can form a government. So it’s not obvious that Johnson can actually wriggle his way out of his duties under the Benn Act, and trying to do so might actually make his position worse.
    Any PM, caretaker or otherwise, would be bound by the provisions of the Benn Act. Whoever was PM would not only write the letter but also attend the EC, and for the first time since 2016, the 27 would have a sensible interlocutor, who actually represented (at least as far as no-deal is concerned) a broad consensus at Westminster. it’s reasonable to assume both sides will take advantage of this. In British politics, the difference between government and opposition is fundamental and enormous. For the Tories to lose control of the steering wheel even for a few weeks would radically change the game. For example, the Benn Act not only provides for extensions longer than 31 January, but specifically says (Section 3 (4)) that “Nothing in this section shall prevent the Prime Minister from agreeing to an extension of the period specified in Article 50(3) of the Treaty on European Union otherwise than in accordance with this section.” In other words, an acting PM would have the right to agree any extension they wanted. And as far as I can see such an extension would not have to be approved by Parliament . Remember that under Art 50, it’s the EC that approves an extension “in agreement with” the country concerned. The EC has the ball. In that case, whoever won an election, even Johnson, would be tied down by agreements made by an interim government.

    1. Yves Smith Post author

      This is very helpful but you’ve drafted this as if the EC comes before the letter. It’s the reverse. EC is before the Benn Act trigger date. Letter required to go in on the 19th, 2 days later, which means one scenario is Johnson attends the EC and then resigns.

      And who wrote this section of the Benn Act? It’s contradictory unless there is some British usage that I don’t get:

      (2)If the European Council decides to agree an extension of the period in Article 50(3) of the Treaty on European Union ending at 11.00pm on 31 October 2019, but to a date other than 11.00pm on 31 January 2020, the Prime Minister must, within a period of two days beginning with the end of the day on which the European Council’s decision is made, or before the end of 30 October 2019, whichever is sooner, notify the President of the European Council that the United Kingdom agrees to the proposed extension.

      (3)But subsection (2) does not apply if the House of Commons has decided not to pass a motion moved by a Minister of the Crown within a period of two calendar days beginning with the end of the day on which the European Council’s decision is made or before the end of 30 October 2019, whichever is sooner, in the following form—

      “That this House has approved the extension to the period in Article 50(3) of the Treaty on European Union which the European Council has decided.”

      (4)Nothing in this section shall prevent the Prime Minister from agreeing to an extension of the period specified in Article 50(3) of the Treaty on European Union otherwise than in accordance with this section.

      1. David

        Yes, I didn’t mean to imply that. I should have written “will not only have to attend the EC but write the letter.” This means Johnson could, as you say, attend the EC and then resign, but he’d still be acting PM and still be bound by the Benn Act.
        I agree it’s badly drafted. IANAL but I think it means
        (1) the base case is that the PM seeks an extension until 31 January and the EU offers it. In turn the PM is required to accept the offer.
        (2) In case the EU offers a different extension, the PM must agree, following an affirmative vote by the Commons.
        (3) Without prejudice to either (1) or (2) the PM may agree any other extension with the EU separately. The phrasing suggests that, unlike (2) this doesn’t have to be approved by Parliament.
        It reads like a bit of a mess, but my suspicion is that (4) is there so as not to tie the hands of a PM other than Bojo, who might want to negotiate something quite different.
        But I yield to any passing lawyer on this one.

        1. ChrisPacific

          On point #2, I read it as saying the PM must agree unless there is an explicit negative vote by the Commons, thereby covering the case where Boris finds some way to cut Parliament out of the loop for the time required.

          That last part is pretty ambiguously worded though. “House of Commons has decided not to pass a motion” – what does that mean? What happens if no motion gets passed, for reasons that may or may not be outside the control of the Commons? Good luck with that one.

        2. Realty-Based Lawyer

          I tried to post this earlier, but it disappeared before I could enter my name and email so I’m trying again.

          I’m a lawyer; though not an English lawyer, I spent some years working with English contracts. I think this is very precise; elegant, as every word counts; and after close analysis hard to misinterpret. (Many English lawyers have said they believe it’s watertight; one whose name I forget commented that constitutional lawyers “purred” after reading it.)

          (2) is I think pretty clear. The PM has to accept any extension proposed by the EC.
          (3) says that the PM doesn’t have to accept such an extension, but only if the HoC (a) decides (=votes) not to pass (b) a motion (c) moved by a Minister of the Crown (not the opposition or anyone else) (d) within the relevant two-day period and (e) in the specified form.

          All of these conditions have to be satisfied; if one if them isn’t, the PM still has to accept the extension. The result is that the government is forced to submit the EC’s proposed extension to Parliament; if not, Parliament can’t decide not to approve it, the exception isn’t triggered, and the PM has to accept the extension. I think this deals quite nicely (in the old sense) with questions of interpretation and even constitutional law.

          Unfortunately, threading the various needles in high legal style led to rather dense terminology…. But I think it’s hard to challenge, which seems to be established by the government’s and commentators’ failure to cite any loopholes (other than Jo Maugham’s, which I suppose the rebel alliance will deal with).

      2. lampoon

        (in response toYves question above) As I recall, one objection to the Benn Act by those opposing it was that it would require the PM to agree on whatever extension period the EC decided if different from the 31 Jan date hard wired in the Act. This provision, I believe, negates that possibility by giving the PM an out if the EC decides on a different expiration date and the House of Commons fails to approve that different date. Subsection (4) then gives the PM the unilateral ability to agree to a different expiration date if he so desires. But as confusing as all this is (and double negatives do not help), I could well be wrong.

    2. Daz

      David, HM’s Commonwealth Realms are rich with weird edge cases in the practical application of responsible government. The Australian states and Canadian provinces particularly.

      “It was the first Labor government in New South Wales, elected to office in October 1910. Throughout its first turbulent year, it lurched through controversies concerning the pairing of votes, the resignation of members, no-confidence votes, the resignation and restoration of the government, the prorogation of parliament, the appointment of an Opposition Speaker and the use of the Speaker’s casting vote…”

  6. Tom

    Couple of questions: When May resigned, she stayed in No 10 for (I forget) 5 or 6 weeks while the party chose a new leader. Is there a different kind of resignation available that gets Johnson out of there immediately?

    And could HM refuse to accept his resignation?

  7. daz

    “Specifically, we think it is highly likely that Boris Johnson will resign before October 31. The question is which of the most likely paths would be best for his odds of returning as Prime Minister after a general election.”

    That’s a profoundly risky move. Bojo is presumed to have Confidence. HM *will* commission a new PM who will have to win confidence or at least win a dissolution motion. If parliament refuses to dissolve, then what? If they don’t win confidence, they don’t form a responsible government. HM must always have a government so the Tories remain the govt. Does Bojo refuse to meet the Queen again? Does HM need to remind the PM of his responsibilities and that he serves at her pleasure?

    If Labour doesn’t split, Corbyn might be the only person able to win a confidence motion. Then it’s game over.

    That’s a hell of a gamble.

    1. gallam

      You are assuming that Boris Johnson will resign in the event that he loses a vote of no confidence.

      If he does not, under the Fixed Term Parliament Act he has 14 days to win a vote of confidence.

      If that fails, which it would because the Conservatives would be instructed to abstain, a general election is called.

  8. EOH

    Declare victory and leave the field to his opponents. Perfect solution for BoJo, perfect victimhood. He can return later, as a would be MacArthur or de Gaulle, to carp at or reassemble a broken party.

    In the manner of the Long Parliament, he has stayed too long for any good he has done. “Depart I say, and let us have done with you. In the name of God, go!”

  9. lampoon

    Where does the Goodlaw Project/Jo Maugham QC “nob off” (nobile officium) case fit into all this, especially if the PM resigns prior to 19 Oct? The object of the case being heard tomorrow by the Scottish Court is to authorize the court to execute the A50 extension request in the PM’s place if he refuses to do so as required by the Benn Act if there is no deal. Per the blog: “The Inner House of the Court of Session has a special and versatile jurisdiction – its nobile officium – which it can use to, in effect, per procurationem (ie ‘pp’) any letter that the Prime Minister refuses to send.”

  10. d

    Well some of things they buy might make you think they, just don’t acknowledge it, like a retired middle silo, and they seem like buying islands. Good places to hide

  11. ljones

    I know I’ve said this before in the past – but is there still a case of the EU “ejecting” the UK out of the EU? With a troublemaker like boris around and MPs lining up behind him maybe the EU might just be tempted to cut its losses?

    I’m not so sure that boris’ support will keep up however. A lot can happen between now and the possible “brexit day” on 31 Oct. Depends on a whole lot of things and none of them are certian.

    As for boris’ so called popularity I must say I’m really not seeing it. My feeling is that a lot of people are seeing all the stunts and promises but thinking “….but it’s all nonsense, even if it is in the queens’ speech”.

    I’d argue also the polls are of no use either. Polls on which party might win a GE pretty much relies on some sort of stability. And we have the direct opposite of that in the UK right now. So “the polls” are meaningless. Right now all we can say is that Lab/Con/Lib dem have “??” % .


    1. Yves Smith Post author

      I agree that is possible but it appears the EU will not reject an extension request. They do not want to go down in history as having formally been the party to push the UK out of the EU. However, they could give a very short extension, like a month, to make the point.

      The question is what they do if Boris refuses to send in the Benn Act letter or organizes his life so as say he’s not in office and it is someone else’s problem. The EU does not want to set the precedent of dealing with a Parliament rather than a head of state.

      1. gallam

        I’m not quite sure why the EU would wish to force an extension on an unwilling Prime Minister, who has a veto on the budget amongst other things.

        The last extension was granted on the basis that Theresa May publicly stated that she would not be causing any trouble in the interim. If Johnson cannot wriggle out of the Benn Act I would expect him to publicly state that all EU business will be on hold for the duration of the extension.

  12. Summer

    “In fact, it not only has been clear that the two sides were far apart, but reports over the last few weeks indicted that the EU side was getting even more frustrated and alarmed because the UK was introducing elements that widened the gap.”

    Still sounds like a tactic for no-deal and going through the motions of negotiation.

    1. Carey

      I see it similarly, though I’m far away from the action. A recent headline (now apparently down; I looked) was instructive:
      “Boris gives EU Ultimatum” .


  13. Mattski

    We’re now in a stage of such utter dissolution, both sides of the Atlantic, that we must suffer the machinations of utter wankers as the walls winkle down around us. Not with a bang, Eliot foresaw, but with a whimper. Brilliant as these analyses have been, these clowns barely deserved a swift kick up the backside that history will accord them. Perhaps it all needs to fall apart now to have any hope of being put back together.

  14. VietnamVet

    Oligarchs want no rules and regulations; no taxes; no nations. In other words, warlord fiefdoms similar to Southern Italy, Libya or Ukraine. Obviously this is the opposite of what law abiding middle class workers want. It is the antithesis of the last 804 years of Anglo-Saxon history. Both Brexit and the Trump Impeachment are composed of propaganda, lies and obfuscation meant to bamboozled the public who are getting screwed. Unless unity governments in both countries are formed, Civil War 2.0 seems inevitable.

    1. Carey

      To your last sentence: could that be why our ruling class has been steadily militarizing the cops for the last twenty-plus years? How long, though, before the latter decide to cut out the parasitic

    2. fajensen

      Oligarchs want no rules and regulations; no taxes; no nations.

      The oligarchs very much *do* want nations; The want nations that *they* control so *they* can make the rules, regulations and taxation to benefit themselves. Nations that protect them and their interests, provides stability and certainty, amicable succession of their dynasties.

      In warlord land, the situation is dynamic. Anyone can get whacked over anything at any time, meaning that an oligarch living there has to pay enormous amounts for security (and loyalty of the security) out of his / her own pocket, whereas in a nation state the ‘law abiding middle class workers’ gets to pay over the tax bill and the security is loyal to the state and follow it’s laws, which happens to be laws that the oligarchs made.

      Because they want controllable nation states rather than something like the EU, which can take them on, they pay people like Steve Bannon a lot of money to push their ideas of what a nation-state should be and why all forms of international cooperation represents the spawn of Beelzebub: Feminism and Communism!

      Brexit is very much about a bunch of oligarchs investing heavily in the acquisition of a really big island where they get to write the rules, they will be nursed and protected, they can get the full 1’st world living standards package. Even during such times as The Jackpot!

      None of the outback stuff with a caribbean island where everything must be flown in and if the reverse osmosis system breaks down, there is no drinking water. Or a damp, mouldy, nuclear bunker – where the power goes and one is entombed by hydraulically operated blast proof doors. Accidents waiting to happen!

      With Britain, they will get an island that is big enough to be sustainable, of course once the population has been culled back a little.

      The oligarchs are looking seriously at their interfaces, logistics and supply lines, *that* should scare people!

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