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Brexit: Focusing the Mind

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Via Naked Capitalism

As most interested readers already know well, UK Prime Minister Boris Johnson took the aggressive step of exploiting established practices to limit the amount of time in which Parliament is in session before the Brexit date of October 31. Even though it was hardly a secret that proroguing Parliament was an option, it appears it wasn’t taken seriously.

Mind you, as much as the Government’s ploy is awfully cheeky, it’s not as if Parliament was distinguishing itself in terms of its seriousness in trying to stop Brexit. Parliament took its customary summer recess. Perhaps I missed it, but I did not see any serious effort afoot to curtail the normal autumn caucus recess. As a result, the practical impact of this gambit is to reduce the time in which Parliament was set to be in session on its normal schedule by a mere four days.

Nevertheless, the press and a big swathe of the general public reacted as if Johnson were planning to roast babies alive. For instance from Boris Johnson’s suspension of parliament is an affront to democracy in the Financial Times:

Boris Johnson has detonated a bomb under the constitutional apparatus of the United Kingdom. The prime minister’s request to the Queen to suspend parliament for up to five weeks, ostensibly to prepare a new legislative programme, is without modern precedent. It is an intolerable attempt to silence parliament until it can no longer halt a disastrous crash-out by the UK from the EU on October 31. The seat of British democracy, long admired worldwide, is being denied a say on the most consequential decision facing the country in more than four decades. So, too, are the British people — in whose name Mr Johnson claims to be acting. It is time for parliamentarians to bring down his government in a no-confidence vote, paving the way for an election in which the people can express their will.

Help me. This sort of misinformation is what got the UK in this mess in the first place. I’m no fan of Brexit, but where was the Financial Times when Parliament approved the Withdrawal Act? Did they miss that the only reason Parliament had a say after that was that the Government lost a court case on the grounds that a withdrawal agreement would affect citizens’ rights? And most important, that Brexit is a default, and the only ways out are the Withdrawal Agreement that May negotiated and Parliament repeatedly rejected or revoking Article 50, which is still a third rail issue for most MPs? And more recently, that the Institute of Government described at some length why it would be very difficult for Parliament to stop a Prime Minister that was determined to deliver Brexit?

But the pink paper has plenty of company:

It appears that Johnson’s move had the effect of exposing various “Stop Brexit” unicorns as ponies wearing funny headgear, not that the British citizens who are outraged would see it that way.

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Quite honestly, I’m not sure what the point of poking a stick in the opposition’s eye was. Johnson appears to have violated one of the cardinal rules of politics: never get in your enemy’s way when he is making a mistake. Even though Corbyn has been threatening a no confidence vote for some time, and in theory that would be the most likely path to unseat Johnson, he still doesn’t have the votes. Not only are their pro-Brexit Labour MPs who would be expected to abstain, Labour is doing badly in the polls. Turkeys don’t normally vote for Thanksgiving.

Similarly, it wasn’t necessary to prorogue Parliament to push new elections, even if they were to happen, until after the Brexit drop dead date. By not giving up its summer recess, Parliament sacrificed the chance to have a general election before October 31. And even with Johnson’s affront a new galvanizing force, it’s hard to see the LibDems getting over themselves and backing a caretaker version of a “government of national unity” formed only to hold a second referendum.2

However, as Clive pointed out in comments yesterday, and as has appeared to have been widely overlooked, those additional days make it impossible under the Fixed Term Parliaments Act for Parliament to execute a successful vote of no confidence and hold new elections before November 7. Note that readers previously gamed out1 that even in the event that Johnson lost a vote of no confidence, he was not bound to call new elections immediately, so he could have gotten to more or less the same place on his own initiative. As Andrew Rawnsley pointed out in the Guardian earlier this month:

If a government loses a confidence vote, the law allows 14 days for either the prime minister to regain a Commons majority or for someone else to assemble one. If no one can, there is then an election, the date of which is to some extent set at the prime minister’s discretion. The law is mute on whether Mr Johnson is entitled to hole himself up at Number 10 during that fortnight and time the election so that Britain will have crashed out of the EU before the people get to vote. Labour has called this “an abuse of power” and asked the cabinet secretary to give an opinion. Sir Mark Sedwill is thought to agree that it would be an abuse, but even if he did make that ruling, it is not clear how he could enforce it.

Was Johnson trying to bait Parliament into a non-confidence vote, despite the whip counts saying it’s not on? Recall that Richard North has argued that a November 7 general election is optimal timing from Johnson’s standpoint. October 31 is a Thursday. Businesses will schedule shipments so as to avoid that Friday and early the following week in the hopes (and even later for enterprises that have more latitude) to allow for new border procedures to shake out. Thus Johnson could go into an election saying he had delivered Brexit and none of the horrible outcomes that Project Fear had said were in store had (yet) happened.

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One is therefore left wondering what the point of this gambit really was. A Trumpian move to dominate the press and among other things, divert attention from leaks about the consequences of a no deal, including shortages of food and drugs, a mess at borders, particularly at the hard border in Ireland? To convince Europeans, as if they needed convincing, that the UK is prepared to crash out? The Guardian reported that EU leaders made disapproving noises and duly registered that a no deal was even more likely:

The plan to suspend parliament for five weeks, which would drastically reduce MPs’ ability to influence changes to the withdrawal agreement or seek a delay, is seen in Brussels as a move to overpower rebels and force through Johnson’s Brexit agenda.

Admittedly, there are plans to thwart Johnson, such as Gina Miller’s effort to check Johnson in court, a petition against the proroguing that is already at over a million signatures, and protests, but it’s hard to see how they get anywhere.

As much as it appears that Johnson has played a trump card and checkmated his opponents, my take is the reverse: that he actually opened up a new path for at least stalling Brexit and the widespread reaction in the UK, that Johnson’s gambit is an affront to democracy, has given the opposition a new lease on life.

The one way that Parliament could check Johnson is via legislation to order him to seek an extension or revoke Article 50. Merely seeking an extension won’t accomplish much; the EU would probably grant one (out of not wanting to be the ones to trigger Brexit) but only a short one in the absence of a reason to think anything would change. An extension plus, say a new referendum would be a different matter, but the UK is a way away from that.

Before, even with Parliament having more days in session, it was hard to see how Parliament could to more than pass hand-waving motions that would not impede Johnson. The Government had decided it didn’t need to pass legislation to change existing UK laws to cope with Brexit, denying Parliament the opportunity to attach amendments. Since the Government controls Parliamentary time, it could simply avoid putting any bills to a vote to continue to deny Parliament the opportunity to make mischief. And as we’ve observed, “private bills” virtually never pass, with some of the reasons including that all it takes is a single MP’s objection to kill them.

But Ian Dunt points out that the Queen’s speech, which will take place before October 31, opens up an opportunity for amendments:

Some of the reporting suggests MPs have lost the ability to stop no-deal. That’s wrong. This timetable still leaves parliament sitting from the 3rd of September to around the 12th. There would then be two weeks before no-deal for MPs to stop it. And there will now be a Queen’s Speech for them to use to attach amendments to. There is still time to block the government.

And in a nuclear option, they would still have the option of a no-confidence vote in late October, and picking anyone – anyone at all, the time constraint adding urgency to the discussion – to act as caretaker, extend Article 50 and set a date for an election.

Polly Toynbee at the Guardian also believes that Johnson has galvanized opponents who preferred to stand aside until late in the game:

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This assault on parliament is galvanising those soft Tory opponents who were prevaricating, the ones who preferred to wait until late October to give Johnson a chance to strike a new EU deal. Now, say Dominic Grieve and others, they all realise the one week before prorogation must be used to legislate against a no-deal Brexit. There is just time, there are manoeuvres, from seizing the timetable to a humble address and other ingenious devices murmured sotto voce lest the government hear their plans. It can be done, must be done, double quick, it’s too late to wait until they return in October.

Mind you, the odds that the anti-Brexit forces will actually manage to herd cats and come up with a plan and execute it are still remote. Any path that accomplishes even the not-terribly-productive-in-the-long-term aim of just getting an extension still has a lot of moving parts. And anyone who understand cumulative probability knows that even if the odds of success at every step in a multi-step process are high, the resulting odds of success wind up being middling. To put it bluntly, even path of delay face considerable obstacles. But the likelihood of success has gone from virtually nil to low.

My best guess is that it’s too late to change the path to Brexit much, that the most the opposition will be able to pull of is a short extension, say to the end of December, and even that will prove to be a tall order. But as I’ve said before, it would be better if I were proven wrong.

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1 Apologies for not giving credit, but it would take a lot of digging. So if you want to pipe up, please do so and I’ll amend the post with a link.

2 Aside from widespread antipathy towards Corbyn, another problem is that “caretaker government” and “second referendum” don’t go together. The first referendum took over a year. It won’t be any easier to formulate the question and it’s likely to be more fraught now that the complexity of the matter is a bit better understood. You can’t put all other policy decisions of significance on hold in the interest of sticking to the caretaker notion for that long.

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