Given the momentous events of the past week, I’d like to look in a little more detail at some of the changes we’ve seen, and reflect on their consequences.
Prorogation and Parliament
I’d written a blog on prorogation on the day the news broke about it. It might seem an arcane parliamentary tool, but prorogation has turned into a fast-moving story, filled with bitterness at being shut out of parliament expressed by MPs, justifications from Downing Street and the PM, and 3 separate court battles. In the first days after the announcement, the battle lines were drawn. On the one hand were those arguing that proroguing (suspending) parliament is an unremarkable mechanism used on occasion to conclude one session and begin another, with a Queen’s Speech in the middle, and in this case, necessary to set the groundwork for new legislation to be debated in that new, second session.
Others however, including all opposition parties, the majority of the House, the Lords, former PM Sir John Major, and the voluble Speaker of the House, John Bercow, denounced prorogation in clear terms as a cynical ploy designed to limit the scope and time needed to debate a deal-driven Brexit, and increase the chances of a no-deal Brexit. In terms of its impact on the House and democracy more widely, prorogation was denounced in virtually every quarter as a constitutional outrage.
Prorogation officially began on Monday evening. If the purpose was to box Parliament in, the strategy has failed. Ironically, the prospect of a reduced timetable has assisted the House in speeding through the Benn bill (Withdrawal Agreement 6) ensuring a no-deal Brexit cannot legally take place on 31st October, denied the Prime Minister any further opportunity to attempt to call a general election between now and mid-October, denied him also any chance to set a motion that would counteract the Benn bill. Whether a tool, or a tactic, prorogation has been implicit in losing Johnson every attempted vote in the Commons, which is unprecedented for any PM, and especially a new one.
Further afield, while the DUP backed the prorogation strategy, the decision instantly worsened relations with Scotland, pulling first minister Nicola Sturgeon more firmly into the Labour camp, which will have consequences for a general election.
Law and politics collide
And, as we’ve seen, the measure has resulted in the government itself being taken to court. The first such battle took place last week, when a Scottish court of sessions, and then the English High Court over-ruled prorogation; suggesting either it was not a matter for law (non-justiciable) or that it was a constitutional use of procedure.
After hearing the arguments of 75 opposition MPs and peers however, three Scottish appeal court judges this morning (11 September) overturned this decision, with Scotland’s most senior judge Lord Carloway, arguing that courts do indeed have the power to counteract the PM’s political decision to prorogue parliament.
What was the judges’ thinking? Essentially that prorogation is unlawful, first because in general the whole concept of parliamentary scrutiny of the executive is “a central pillar of the good governance principle enshrined in the constitution”, and second, because the choice to prorogue demonstrably “had the purpose of stymying parliament”, rather than allowing debate to continue. In a nutshell, the request made by the Johnson government to the Queen (and indeed her own decision) “was unlawful and is thus null and of no effect”.
The question now is whether the doors of Parliament can be flung open again. Jolyon Maugham QC of the Good Law Project (who funded the initial legal challenge) argued that “unless the supreme court grants an order in the meantime, parliament is unsuspended with immediate effect.” However, as the Scottish court didn’t actually issue a ruling to that effect, there appears not to be the necessary mechanism in law to enforce this.
Excitingly, there’s also more exciting legal drama to come next week, when the UK Supreme Court begins 2-3 days of emergency hearings on both the Scottish and English cases for, plus a third challenge that was originally brought from courts in Belfast. Supporters feel largely vindicated, and confident that the UK Supreme Court will uphold the decision. To do so, the court will have to agree that prorogation is indeed a “tactic to frustrate Parliament” rather than a constitutionally valid use of prorogation. The words of Woodrow Wilson come to mind at this point: “Liberty has never come from Government. Liberty has always come from the subjects of it. The history of liberty is a history of limitations of governmental power, not the increase of it.”
No-Deal Planning : Code Yellow (hammer) ?
The back and forth between Parliament and the government, particularly Number 10 burst into the open at the end of the summer, with the leaked Yellowhammer report. Just a brief reminder therefore. Leaked to the UK press, the Operation Yellowhammer reports prepared by civil servants in the Cabinet Office laid out first the staggering physical impact that a no-deal Brexit would have on the country and its people in the short term, and the genuine lack of joined-up work across Whitehall in managing a consolidated, rather than fragmented response.
The report suggested that Britain would face major (and possibly sustained) shortages of key staples including fuel, food and medicines. Delays to goods would be triggered by two key infrastructure failures: “a three-month meltdown at its ports, [and] a hard border with Ireland” alongside longer-term impacts from increased prices and reduced availability of goods, rising costs in health and social care, as well as in other key sectors like hospitality, transport and construction.
This is quite a shift. Up until Yellowhammer, the government had argued strongly that all such evidence-based reports (both its own, and those from external institutions like the FSB, the IoD, the Bank of England, the OECD, RAND, etc.) were all worst-case scenarios (WCSs), capable of being mitigated, or even avoided. Now, Yellowhammer points to an increasingly likely series of aftershocks of a no-deal Brexit – i.e. the UK leaving the EU with no series of agreements on border management, trade in goods, mobility of citizens, external and internal security, etc.
The point of Yellowhammer was to point out 2 things: the aftershocks, and the planning for them. The aftershocks are clear. The planning, far less so. Not only is Yellowhammer covert in the extreme (until leaked), even its planning is covert. Which is odd, given that the stakes have never been higher: essentially, this is planning carried out to “avert a catastrophic collapse in the nation’s infrastructure” undertaken by a developed state in peacetime.
Report, report, my kingdom for a report
The Yellowhammer report was swiftly followed by leaks of confidential files from key sectors, including NHS England, which was warned “to brace itself for the “biggest threat it has ever faced” with a no-deal Brexit. This includes expected drug shortages for medicines impossible to stockpile (including schizophrenia, bipolar disorder, epilepsy and the chronic pain condition trigeminal neuralgia). Roughly three-quarters of such medicines enter the UK via the main Channel crossing at Dover. Short of flying the drugs in, Operation Yellowhammer has no other solutions, stating only that supply chains for medicines are “particularly vulnerable” to border delays.
Did this come as a complete shock? Probably not. There have been copious evidence-driven reports available for months, even years now, pointing out figures based on daily port data (e.g. the number of lorries using the ports, turnover time, preparation of port hardware and software). I myself was responsible for producing a major report on the UK border in Kent in my previous capacity as Director of the Centre for European Studies at Canterbury Christ Church University. We worked for the better part of two years on it, in tandem with a wide range of partners, from the Freight Transport Association and Eurotunnel to Highways England, from Kent County Council and Kent Police to Network Rail and – crucially – UK Border Force. We tthen launched the report in Parliament in November 2018, in a room full of MPs, many plugged into Brexit planning structure’s and committees. We know it was read by MPs, and circulated in some Whitehall departments.
Why therefore has the government not made good and timely use of the avalanche of such reports to get a grip on (at least) the basics of no-deal planning? Optimists would say that planning is advanced, and virtually ready. Cynics would say planning is superficial at best, or aimed at mitigation rather than prevention. Either way, better use could still be made of the copious amount of vital planning work on virtually sector now readily available.
So, what now? Parliament wants more. Much more. The Prime Minister has now been ordered by Parliament to disclose information in two key areas. First, the prorogation of Parliament: including the rationale for its use. Second, any undisclosed papers and reports outlining preparations for a no-deal Brexit. Yellowhammer laid the foundations for this last month, and Work and Pensions Minister Amber Rudd’s resignation last weekend – citing a total lack of any planning – spurred it on.
The Labour party has previously been successful in getting the government to release Brexit impact assessment reports. This time, the combined forces of Labour, the Rebel Alliance and other opposition parties using a Humble Address (and sent to HM the Queen) may again force the government to produce key documents. A refusal to comply could place the Prime Minister, and Downing Street staff, in contempt of parliament. Fun, fun.
The Benn Bill
Indeed, Yellowhammer is probably the single reason behind the key piece of no-deal legislation that Parliament was focused on just last week. My, a week really IS a long time in politics.
What is entailed in the ‘Benn bill’? Essentially:
- The PM has until 19th October (one day after the EU Summit in Brussels) to pass a deal in Parliament, OR for MPs themselves to approve a no-deal Brexit.
- After the 19th October, the PM is now mandated in law to request (in writing) an extension from 31 October to 31 January 2020 of the UK’s departure date form the EU.
- Rare wording? The bill stipulates, somewhat usually, the actual wording of the letter that the PM has write to Donald Tusk, the President of the European Council in actually requesting that extension.
Then what? Depending on the actual UK-EU negotiations undertaken between now (mid-September) and the mid-October summit, and the dynamics of the EU summit itself, the EU could:
- agree to the new January date;
- propose an alternative date’
- or turn down the request for an extension altogether.
It’s likely the EU leaders will agree an extension till 31st January, or even propose a new (longer) date. They cannot risk being seen to reduce the length of time when an actual deal could emerge, OR the time needed to prepare for a no-deal Brexit. Either way, things are going to move quickly.
The PM will have just two days to accept either proposal. However – and contrary to much commentary and media coverage that interpreted this incorrectly – during this same two-day period, MPs – not the government – will have the opportunity to reject the EU’s date. At that point, they can agree either their own deal (depending on what comes back from Brussels), or a no-deal scenario.
In addition, the ‘Benn bill’ contains a series of provisions legally requiring ministers to now report regularly to Parliament on all manner of Brexit planning. This could provide a chance for the government to regain control of the Brexit debate by demonstrating how hard they’re working. Equally however, it might yield opportunities for MPs unhappy with the government’s Brexit planning to again take control of the timetable.
To Be(nn) or not to Be(nn)…
Lastly of course, is the question of whether the Prime Minister will himself respect the legislation. For those keen to avoid the immediate impact of an unmanaged departure from the EU, the Benn bill provides much-needed breathing space at home, while putting pressure on the PM, the Republic of Ireland and the EU to work harder at identifying a deal.
For those who regard no-deal as the last, best opportunity to leave the EU, the legislation represents a variety of unnecessary requirements. Even from this perspective however, the concept of ‘testing’ this new law, as suggested by the Foreign Secretary, Dominic Raab, or even thwarting it outright by Downing Street, seems odd.  The Chancellor of the Exchequer, Sajid Javid argued recently that the government would indeed “obey all laws”. But Hilary Benn, Chair of the Commons Brexit Committee, put it rather better: “Either we have the rule of law, or we do not.”
The European Council 17th October expectations
On to Brussels. Two things to bear in mind here. First, EU heads of state are not particularly interested in the parliamentary turmoil of the past few weeks. They are concerned only in the outcome as it impacts on the EU, namely the nature of the agreed DEAL, and the TIMING of its implementation. Whether parliament is prorogued, or a general election called, or even a different Prime Minister in attendance in October is not properly their concern.
EU governmental and institutional leaders are however profoundly worried about: (1) the increasing likelihood of a no-deal Brexit; (2) the lack of genuine preparations being made by the UK, and between the UK and its littoral neighbours; (3) the decline in meaningful negotiations with the EU, due to (4) the lack of any substantive suggestions acceptable within the contours of the Withdrawal Agreement, signed by both sides.
Watching a British Prime Minister who appears “to have lost control of Britain’s withdrawal from the European Union with the approval of the law” is arguably unnerving for Johnson’s European counterparts.  Their concern will be how the summit itself plays out.
The perils of pressure
The Prime Minister has vowed to attend the Brussels October summit in order “to get an agreement in the national interest … This government will not delay Brexit any further.” As a result, there’s a new kind of pressure to actually get a deal. Doing so at Brussels allows Johnson to argue that he’s made a success of Brexit via a new deal, and demonstrating to Parliament that he can do so, even with a forced timetable. This boosts the potential Conservative return in an ensuing general election, though arguably set against hard-leavers (including the sizeable rump of Brexit Party voters) determined to leave with ‘no deal’.
Indeed, I would suggest that the reduction in parliamentary time due to prorogation, the exceptionally high-stakes of a no-deal Brexit, and the newfound parliamentary robustness evidenced by the Benn bill now places an increased degree of pressure on the EU itself. The PM wants a deal. Labour wants a deal.
A no-deal Brexit is seen by Labour and the rebel alliance alike as a risk, even a disaster that would be inflicted on the lives and livelihoods of all communities. The EU wants to avoid a no-deal too, in order to defend the interests of the Republic of Ireland, as its most affected member state, while also preserving the integrity of its single market, into which the UK will still need to trade, post-Brexit. Striking an ‘altered deal’ in Brussels, seems the only option to reduce damage and save face on all sides.
Buddy, can you spare a deal?
But… there needs to be a plan. A series of workable suggestions. Overhauling major parts of the tortuously negotiated Withdrawal Agreement is clearly not on the table. Nor is scrapping it and starting again. Reworking the extent, and timing, of the backstop however, is possible. There are areas where alterations can be made; the Irish Taoiseach, Leo Varadkar has indicated he is open to possible ideas, provided they do not negatively impact preserving the north-south border in political, security and market-based terms. It does need pointing out however, that Ireland is as badly prepared for a no-deal Brexit as Northern Ireland, and the British mainland.
Very little work exploring material or technical alternatives to border checkpoints has been done – whether in Ireland, or the any of the British or Northern Irish ports. It’s doubtful that piecemeal, bottom-up ‘check-point’ solutions can ever truly work. The best hope is a customs agreement keeps checks on all borders to an absolute minimum, but which will simply have to last until either a more comprehensive free-trade agreement can be worked out, and/or enhanced 21st century border mechanics are found, tried, and implemented. Whether or not this includes Northern Ireland, remains to be seen. If Brexit is beginning to reveal anything, it’s that leaving from one union will likely undermine two.
I remain an optimist. If I can be permitted to repeat the single best
descriptions of America’s relationship with Canada, and reorient it towards Britain’s
future relations with Europe, let me quote John F. Kennedy: “Geography has made
us neighbours. History has made us friends. Economics has made us partners, and
necessity has made us allies. Those whom God has so joined together, let no man
 See: https://www.prospectmagazine.co.uk/politics/the-debate-over-the-benn-bill-is-plagued-by-a-fundamental-misunderstanding