Brexit Update 30th August 2019

By September 12, 2019Brexit Updates

Top 3 developments

  • The Queen has approved the Government’s request to prorogue Parliament in September.
  • Ruth Davidson has resigned as Scottish Tory leader, citing the conflict she feels over Brexit and personal reasons.
  • Remain MPs have stepped up plans to block a no-deal Brexit in the limited time span they have before Parliament is suspended, increasing the chance of a vote of no confidence.

UK Update

Going (pro)rogue

Boris Johnson caused the first major controversy of his Premiership on Wednesday when he successfully gained approval to prorogue Parliament from the 9th September to the 14th October 2019 in order to hold the Queen’s Speech, which brings in a new session of Parliament and a new legislative agenda. This move will suspend Parliament by an extra 4 sitting days, and while there is legitimacy in his reasoning for this – the current session of Parliament is the longest since the English Civil War – make no mistake, this is widely seen as a politically calculated move to give rebel MPs significantly less time to legislate against no-deal through Parliament. There is no doubt that the man behind this plan is Dominic Cummings, former Director of Vote Leave and Johnson’s senior adviser, who has been given the mandate to get the UK out of the EU on the 31st October by any means necessary.

This move was met with serious anger, with many citing that it was undemocratic and even unconstitutional. Speaker of the House John Bercow – who is meant to remain impartial on political decisions – said it was a “constitutional outrage”, Philip Hammond called it “profoundly undemocratic” and Johnson is likely to face several legal challenges to this decision, with SNP Justice Spokesperson Joanna Cherry already leading on a challenge in the Scottish court, although this has now been rejected by Lord Doherty who has stated that he was no satisfied there was a “cogent need” for an interdict.

Whilst this does not really qualify as a constitutional crisis, it is fair to say that this is a major political crisis. The Executive has enormous power over the legislative agenda by being able to control Parliamentary time, and by choosing to have a Queen’s Speech at this time – while within the rights of the Executive – is essentially exploiting this power to deliberately reduce the amount of time MPs have to organise themselves and prevent no-deal. It is a very clever tactic admittedly, but it is truly mixing in the political dark arts, and proves that Johnson and Cummings really are willing to do whatever it takes to achieve their political objectives.

The ulterior motive for this is not to clear the way for no-deal, but rather that they can truly use the threat of no-deal to force the EU to blink and to give concessions on the backstop. Parliament is the only barrier to prevent no-deal now, and proroguing Parliament is the most effective option within the confines of legality to neutralise that threat. It remains to be seen whether this will work, but it is no doubt the nuclear option. MPs now essentially have 7 sitting days to stop no-deal, so whatever they need to do, they need to do it fast.

No Time Like The Present

After the Queen approved the Government’s request to prorogue Parliament, Remainer MPs, notably Philip Hammond, called for immediate action to stop the Government pursuing a no-deal Brexit given their limited time before Parliament is suspended.

Remainers held cross-party talks on Tuesday, before the announcement that Parliament would be prorogued, where it was decided to prioritise legislative routes to stop a no-deal, rather than a vote of no confidence. Therefore, it is likely that MPs will request an emergency SO24 debate in the Commons as soon as Parliament returns next week, which will set up the opportunity to seize control of the order paper and table anti no-deal legislation. Whilst a standing order does not normally end in binding votes, it is extremely likely that the Speaker, John Bercow, would allow this to happen as he described the prorogation a “constitutional outrage” and has appeared willing to assist Remainer MPs within Parliament. However, reports suggest that the Lords may delay the process of this legislation by filibustering any rebel bill once it reaches the House of Lords, considering that Bercow is not the Speaker of the Lords and therefore will not be to control the agenda. However, a Remainer has suggested that Parliament could remain sitting over the weekend of September 7-8 to give them more time to pass the legislation.

Considering that legislative routes are normally time consuming, and MPs do not have much time, the chances of a vote of no confidence being called next week has increased. The stumbling block with this strategy, however, is that Remainers may not be able to form a Government that could command a Commons majority in a 14-day period. Tory MPs are cautious of promoting a Corbyn-led Labour Government and other Remain parties cannot agree on a single candidate to be the ‘caretaker Prime Minister’ before the next election. This could lead to Boris Johnson selecting an election date for after October 31st, making no-deal the default option.

Shami on you

Earlier this week, Jeremy Corbyn commissioned advice from the Shadow Attorney General, Shami Chakrabarti, on whether a five-week prorogation from 9th September might be possible to avoid a confidence vote and help enable a no-deal Brexit. Chakrabarti’s advice stated that Johnson would be committing the “gravest abuse of power and attack on UK constitutional principle in living memory”. The document also outlined that the move would be subject to a judicial review and that the courts “might well even grant interim injunctive relief in order to allow both houses of Parliament to continue to sit and discharge their primary and sovereign constitutional role in this current moment of national crisis”.

Additionally, Chakrabarti has cited the Gina Millar case brought against the Government to ensure MPs had to give permission for triggering Article 50 as an example of where the courts have found Parliament to be sovereign in relation to the EU referendum result. The argument here is that there is legal precedent for Parliament to be given authority over Government to authorise decisions over the UK’s exit from the EU. Gina Miller is currently pursuing another case against the Government, however it is unclear whether it will be successful, given that prorogation has already been granted. However, the advice given to Johnson can be challenged legally and these can be based on three pillars:

  • The Prime Minister has sought to prorogue Parliament to avoid parliamentary sovereignty on an issue of constitutional importance
  • Johnson has attempted to stop Parliament sitting on the brink of the Brexit deadline
  • He has tried to evade Parliament because it has previously made clear its wish to prevent a no-deal Brexit.

It remains to be seen whether the court case would be successful or whether anything could be granted before Parliament is suspended.

EU Update

Run for Coveney

Ireland’s Deputy Prime Minister, Simon Coveney, has stated that the Brexit deal and backstop mechanism can’t be renegotiated in the time left before the UK’s October 31 departure date, contradicting Johnson’s statement that EU leaders are now willing to listen to credible alternatives the UK proposes to the backstop.

Meetings with German Chancellor, Angela Merkel, and French President, Emmanuel Macron, may have been positive for Johnson, and given a glimmer of hope for a deal should an alternative to the backstop be found within a 30-day period. However, European diplomats have signalled that any new deal must be agreed by Ireland and maintain the rules of the single market. It appears unlikely that Ireland will be receptive to a new deal or alternatives to the backstop as Coveney announced in a speech this week that the existing deal, including the backstop, is the only way to ensure an orderly Brexit and prevent border checks at the border between Republic of Ireland and Northern Ireland. Additionally, it is now unclear how the proroguing of Parliament will impact the ability to pass through a Withdrawal Agreement before the current exit date of October 31st.

Speaking later at the same event, the Brexit Secretary, Stephen Barclay, said that the issue of preventing a hard border between Northern Ireland and the Republic of Ireland should be dealt with in talks on future relationship between the UK and the EU, rather than decided before the exit date. Barclay also urged France to work bilaterally with Britain to prepare for the repercussions of a potential no-deal Brexit on October 31.

Johnson has announced that he will ramp up talks with Brussels over the next few weeks, with senior aides meeting twice a week throughout September in an attempt to reach a new agreement before 31st October and reduce the fears of a no-deal.

Upcoming Key Dates

  • 3rd September: House returns from recess
  • 9th September: House suspended
  • 14th-17th September: Liberal Democrat Party Conference
  • 21st-25th September: Labour Party Conference
  • 29th September – 2nd October: Conservative Party Conference
  • 14th October: House returns
  • 17th October: EU October Summit
  • 31st October: Current Brexit Deadline


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