Whatever the Supreme Court’s ruling, Johnson’s prorogation is democratic horror

The obscenity of the prime minister’s behaviour neither begins nor ends in the law

Photo: SOPA Images/SIPA USA/PA Images

 

The Supreme Court has this week provided the scene for constitutional drama not witnessed in over 300 years. A former Conservative prime minister has, in the nation’s highest court, accused the current Conservative prime minister of lying and behaving unlawfully. Judges have heard the numerous ways in which our convention-based constitution could succumb to tyranny. Leading barristers have outlined the now fundamental conflict between the executive and parliament. This, in particular, looks set to be one of the great battles of our age.

The legal arguments have proven chilling. Submissions proposed that, if any prorogation is solely a matter of political judgment or prime ministerial discretion, the PM’s power is almost unlimited. He could prorogue just as parliament was legislating to stop prorogation. He could prorogue to prevent a vote of no-confidence. He could, astonishingly, prorogue prior to renewal of legislation on the Army, thus effectively disbanding it. It is wholly extraordinary that we might have operated for so many decades with so few safeguards.

And yet the legal focus has also been a distraction. The justiciability and lawfulness of parliament’s prorogation is incredibly important—yet it is not the most important element. Even if the judges determine they can make a legal ruling on Boris Johnson’s actions and find them to be lawful, those actions remain neither politically nor morally acceptable. The judicial wrangling this week has not merely illuminated the potential deficiencies and loopholes in our constitution, but in our entire democratic culture.

In the short term, we find the acme of this problem in Johnson’s next decisions. The government has not committed to reinstate the parliamentary session early if the court rules against it. Astonishingly, it has not even pledged not to prorogue parliament once again, on the basis that the court cannot judge something unlawful before it has actually happened. This crisis could quickly and easily become more acute.

In the long term we must confront still greater dangers. Our constitution is, put simply, not worth the paper it is not even written on.

We now live in the age of charlatans. We can no longer depend on the people ruling us to do so with any good faith. We cannot trust them to defend our rules, norms or rights. It is not so much that the government will not protect democracy, it is that democracy must be protected from the government. The current occupants of Downing Street have shown that they are prepared to destroy anything to get what they want. We cannot simply hope that they will go away and never be replaced with people even worse.

A further constitutional battle is gathering: the role of the Queen. In recent days the monarchy has faced almost unprecedented scrutiny on its level of interference in the political process. Arguments have raged over ministers’ advice on the prorogation, and the broader problem that the Queen’s role can so easily be manipulated and abused. David Cameron’s revelation that he asked the sovereign to intervene in the run-up to the 2014 Scottish independence referendum has not helped. It must now be time for the constitutional monarchy to do what should be entirely obvious, and subject itself to a constitution. Parliament cannot simply operate at the Queen’s pleasure or discretion. Just as we never sufficiently insulated ourselves against the possibility of a tyrannical prime minister, we need to safeguard against the possibility—however remote it may seem—of a tyrannical monarch.

The most depressing aspect of this dispute is its stark division along the lines of Remain and Leave. Too many politicians and commentators have assumed positions based on whether or not they want the government to be able to force through Brexit. This should not be a matter of anyone’s support for Brexit but for core democratic principles. A most basic point is now considered radical.

On a fundamental level our nation is riven. This week marks five years since the referendum in Scotland. That perhaps exposed for the first time the extent of constitutional divisions, and more specifically, the extent to which national electorates were prepared to break things which for decades had been taken for granted. The late 20th-century certainties about the nature of the United Kingdom, its stability, global role and sense of self, publicly began to erode, and then disintegrate.

These recent years of convulsion have challenged not just the nation’s confidence, but its identity. We are profoundly lost, and it was the people who should have been leading us who led us astray. Now nobody knows the way or can offer us any answers at all. The government gambles with our security, prosperity and place in the world. Parliament cannot hold it to account. All the old realities of our civic life have melted away. Like a child confronted with the sudden realisation of their parents’ inadequacy, we are disoriented, confused and entirely on our own.

The UK’s constitutional settlement has been blown apart, along with the complacency of our assumptions. Questions unresolved for decades or centuries are no longer being pondered in philosophical tracts but posed in the nation’s highest court amid a political emergency.

But this prorogation is not ultimately about the law. It goes to the heart of who governs us and how. It asks us if our constitution is not merely unwritten but in fact a sham, and asks us how we will cope with the answer. It is, in the end, a question of whether our democracy actually exists in any form worthy of the name.

With many thanks to: Prospect Magazine and Jonathan Liz for the original story 

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This Is What The EU Thinks Of Boris Johnson’s Brexit Proposals

A diplomatic note seen by BuzzFeed News reveals that European officials believe documents sent by the PM contain only “concepts” that are “not detailed”.

Francois Walschaerts/ AFP/ Getty Images

European officials say the UK’s proposals to get around the issue of the Northern Ireland backstop are just “concepts” that Britain would want to develop after Brexit and so should be “openly and clearly discarded”, according to a diplomatic note seen by BuzzFeed News.

The note is of a meeting on Friday between EU officials and diplomats from the 27 member states. It comes after the UK government sent the EU three documents earlier this week covering food and agriculture as well as sanitary and phytosanitary measures (known as SPS), customs and manufactured goods.

The three “non-paper” — jargon for informal — documents outlined in writing for the first time Boris Johnson’s ideas on how to get around the issue of the backstop, the insurance policy included in the withdrawal agreement that guarantees that the border between the North of Ireland and the Republic of Ireland remains open after Brexit in all circumstances and scenarios, while also protecting the integrity of the EU’s single market.

Johnson has repeatedly pledged to ditch the backstop and replace it with alternative arrangements, and to leave the EU on October 31 with or without a deal.

The EU and the 27 governments have consistently been clear that any such alternatives would need to meet all the requirements of the backstop, and would have to be legally operative.

The three documents were labelled “HMG property”, and the British government asked for them not to be forwarded onto member states.

EU diplomats were told on Friday that the SPS paper is “not detailed”. The one-pager sets out the scope of a single regulatory regime north and south of the Irish border for food and agriculture, and includes an annex listing two sets of legislation. The first list is of EU rules that would apply to the North of Ireland after Brexit obviating the need for border checks. The second list outlines EU legislation that wouldn’t apply, requiring checks to take place away from the border.

The other documents add nothing to what the UK has described in recent meetings, the diplomats were then told. On customs, the UK is not proposing legally operative solutions but concepts that would need to be further developed after Brexit during a transition period.

The French representative at the briefing said the idea the 27 could agree on general concepts to be developed during the transition should be “clearly and openly discarded”. The same diplomat stated that a legally operative solution was required.

The UK acknowledged that there would be a customs and regulatory border in this scenario, and noted that controls would take place at the premises of companies or inland, away from the border. Britain is also proposing to work on developing new technologies to assist in the endeavour, and to adopt and adapt a series of procedures, such as trusted trader schemes.

EU officials told the member states that some of the ideas the UK was proposing were not compatible with the bloc’s customs code and EU law.

UK Brexit minister Steve Barclay shakes hands with EU negotiator Michael Barnier ahead of their meeting in Brussels, on July 9th. Francois Walschaerts/AFP/Getty Images

The 27 were also informed on talks that took place earlier in the day between the Brexit secretary Steve Barclay and the EU’s chief negotiator Michel Barnier.

Barclay repeated the main points of a punchy speech he gave in Madrid on Thursday — the same day the UK proposals were submitted — stating that the backstop must go and a solution should be found during the transition period. He also suggested that the UK had given ground, citing SPS as an example, and the EU should do the same.

The EU has consistently said that without a withdrawal agreement there will be no transition period.

The diplomatic note states that Barnier made clear that he disagreed with Barclay’s assessment, and noted that the UK was “backtracking” on the withdrawal agreement — the UK’s terms of departure negotiated by Theresa May — and the onus was on Britain to come up with solutions.

Johnson’s chief EU advisor, David Frost, then explained that the UK had yet to set out its full approach and that further papers outlining this would be shared with the EU at the “right moment”. Barnier reiterated that the bloc was open to looking at alternatives, but these needed to be legally operative solutions that come into force after the withdrawal agreement is ratified. The EU’s chief Brexit negotiator also reminded his UK counterparts that he was open to revising the political declaration, the framework outlining the future UK-EU relationship.

The status of talks doesn’t bode well for Johnson as he heads to the UN general assembly in New York where he will be meeting French president Emmanuel Macron, German chancellor Angela Merkel, Irish Taoiseach Leo Varadkar and European Council president Donald Tusk.

A UK government source insisted the proposals were “serious and workable” and would avoid a hard border in the North of Ireland.

They continued: “As for the Commission, two months ago they said we couldn’t reopen the withdrawal agreement and there was absolutely no alternative to the backstop. Now we are having detailed discussions.

“Leaks from Brussels on Twitter are par for the course. You can set your watch by them. What we’re focused on is actually getting a deal in the room. We trust they’ll do the same.”

With many thanks to: BuzzFeed News and Alberto Nardelli Europe editor based in London for the original story alberto.nardelli@buzzfeed.com

EU rejects Boris Johnson request for Brexit deal without Irish backstop | The Independent

https://www.independent.co.uk/news/uk/politics/brexit-deal-irish-backstop-border-boris-johnson-eu-barnier-stephen-barclay-a9113451.html

There may still be a way out for Boris Johnson: to pass Theresa May’s deal

Inside Westminster: This has been elegantly known for some time as the Garamond Compromisethe idea that if Johnson printed the withdrawal agreement in a new typeface MPs might go for it. And Garamond is indeed elegant

The Independent Voices
The big question in British politics now is not if Boris Johnson will resign, but when. Should he go next week, or should he wait until 19 October, when the law requires him to sign a letter asking the EU for a Brexit extension?

All the routes out of the dead end seem to be closed. The Scottish National Party isn’t going to rescue him at the last moment by ditching the other parties in the anti-no-deal alliance and voting for an early election.

The prime minister can’t pass a motion of no confidence in his own government because the anti-no-deal parties will, to pile absurdity on absurdity, vote against it (that is, that they do have confidence in Her Majesty’s Government).

And I don’t think that even Johnson can seriously contemplate breaking the law by refusing to ask for an extension and trying to stay in office.

But there is one possible way out through which he may yet squeeze. The bill designed to block a no-deal Brexit, which will become law on Monday, says the prime minister must send the letter asking for an extension unless parliament has approved a withdrawal agreement.

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Is it possible that MPs could finally vote for something very like Theresa May’s deal at the fourth time of asking? This has been known for some time as the Garamond Compromise: that if Johnson printed the withdrawal agreement in a new typeface – and Garamond is elegant – MPs might vote for something that was cosmetically different.

Is there a change – a bit more substantial than the font – that could be made to the withdrawal agreement that would persuade 30 more MPs than voted for it last time to do so at the last moment?

It doesn’t seem likely. Johnson cut the ground from under his own feet on Wednesday, when he said that, if the anti-no-deal bill became law, it “effectively ends the negotiations” with the EU. He meant that the EU side would have no incentive to compromise if it knew that we weren’t going to leave without a deal.

But he may have been too emphatic. It is possible that EU leaders might think that another extension would only postpone the problem rather than solve it. If they see the chance of what they call an orderly Brexit, with a deal, they may want to help make it happen.

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They might calculate that further delay is likely to lead to the election of a Tory government, this time with a parliamentary majority in favour of a no-deal exit if necessary. They might decide that wearing down British resistance by an endless delay that eventually leads to a second referendum is more trouble than it is worth.

So they might think it was worth making minor concessions – I have no idea what they might be, but perhaps some form of words about sectoral checks away from the Irish border might be branded by Johnson as a democratic backstop rather than an undemocratic one.

Then we are back to the familiar arithmetic: if Johnson could win over 12 of the hard-Brexit Tory MPs who voted against May’s deal all three times – this time with the added inducement of being expelled from the party if they vote the wrong way (the disciplinarian crackdown on the soft-Brexiteers could pay dividends); if he could persuade the 10 DUP MPs; and if the 17 in Stephen Kinnock’s “Labour MPs for a Deal” group belatedly did what they regret not doing in the first place; then a withdrawal agreement could pass.

Well, unlikelier things have happened.

With many thanks to the: Evening Standard and John Rentoul for the original story @johnrentoul

 

 

 

 

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Law to stop no-deal Brexit passed by Parliament

Prime minister says the legislation will ‘scupper’ his chances of awithdrawaldealwith no-deal

The author of a new law to block a no-deal Brexit, which completed its passage through parliament on Friday, has said he is “very troubled” by suggestions that prime minister Boris Johnson will not comply with it.

Hilary Benn, the chair of the Commons Brexit committee, was speaking after Mr Johnson suggested he would rather be “dead in a ditch” than request a further delay to Brexit negotiations.

In a warning to the prime minister not to ignore the legislation in the hope of forcing the UK out of the EU without a deal against parliament’s wishes on 31 October, the senior Labour MP said: “Either we have the rule of law or we do not.”

The passage of Mr Benn’s bill through the House of Lords was the latest blow for the embattled PM in a disastrous week which has seen him repeatedly defeated at Westminster, lose his majority, fail to call a snap election, expel 21 of his MPs and watch his own brother walk out of his government.

The legislation, tabled after MPs seized control of the Commons agenda, is now due to become law by going to the Queen for royal assent before parliamentary sittings are suspended next week.

It paves the way for a snap general election, now almost certain to take place in November, after opposition parties agreed to deny Mr Johnson the two-thirds majority he needs on Monday to trigger a general election before his “do or die” Brexit deadline of 31 October.

Mr Johnson said it will “scupper” his chances of negotiating a Brexit deal with the EU, by giving Brussels confidence that the UK will not crash out without a deal at the end of next month.

Thousands protest after Boris Johnson requests to suspend parliament

But asked if he would resign rather than request a third Brexit delay from the EU, he replied: “That is not a hypothesis I am willing to contemplate. I want us to get this thing done.”

A Downing Street spokeswoman declined to rule out the possiblity of the PM resigning, saying only: “We are taking one step at a time here.”

Under the terms of the bill, Mr Johnson must request an extension to Brexit negotiations to the end of January next year unless he can secure a deal or parliamentary approval for no-deal by 19

The legislation passed through the Commons in a matter of hours on Wednesday and completed all stages in the Lords in two days after an agreement between the government and opposition parties ended an attempt to quash it with time-wasting amendments in the early hours of Thursday. It had completed all stages in the Commons in a matter of hours on Wednesday.

Johnson’s Brexit stance ‘could drive Tory voters to Remain parties’
Mr Benn said he was “very troubled” by suggestions that Mr Johnson will not comply with the bill’s requirements.

“Delighted that our bill to stop a damaging no-deal Brexit on 31 October has now been passed by the House of Lords, but very troubled by the prime minister’s repeated statements that he will not seek an extension under any circumstances,” said the Brexit Committee chairman.

“Either we have the rule of law or we do not.”

Sir Keir Starmer, the shadow Brexit secretary, said the passage of the bill was a “hugely important victory in the fight to stop Boris Johnson’s plan for a no-deal Brexit”.

“We will not let this prime minister put jobs and the economy at risk,” said Sir Keir.

gettyimages-490409698.jpg
Hilary Benn (Getty)

But Tory grandee Sir Malcolm Rifkind condemned the manoeuvre as “juvenile”, warning it would merely introduce a month-long delay to the Brexit process, which would be damaging to business and jobs and prolong uncertainty and political gridlock without affecting the end result.

Speaking to The Independent, Sir Malcolm predicted that Mr Johnson would “grit his teeth” and accept the “humiliation” of the U-turn on his pledge rather than wave goodbye to Downing Street. Or he said Mr Johnson could even stand aside for a matter of weeks and appoint a caretaker PM to undertake the painful job of requesting a further extension before his return to No 10, in order to avoid personally breaking his promise.

Describing the “dead in a ditch” comment as “a theatrical statement, not to be taken too literally”, the former foreign secretary said: “The reality is he is not going to break the law. It is a serious political embarrassment for the government, but in the real world delaying an election which all parties agree is appropriate will have no practical impact on Brexit but will be damaging for business.”

Opposition leaders including Labour’s Jeremy Corbyn and Liberal Democrat Jo Swinson agreed in a conference call not to vote for a 15 October election on Monday, because of fears that Mr Johnson could simply ignore the anti-no-deal legislation until the Halloween deadline has passed.

“We were all clear we are not going to let Boris Johnson cut and run,” said a Liberal Democrat spokeswoman.

“The Liberal Democrat position for a while now is that we won’t vote for a general election until we have an extension agreed with the EU. I think the others are coming round to that.

“As a group we will all vote against or abstain on Monday.”

Conservatives branded Mr Corbyn “chicken” for refusing to vote for an election which he has long demanded.

Speaking during a visit to Aberdeenshire, Mr Johnson said: “I’ve never known an opposition in the history of democracy that’s refused to have an election, but that’s their choice.

“I think obviously they don’t trust the people, they don’t think that the people will vote for them, so they’re refusing to have an election.

“And so what we will do is we will go to the summit on the 17th, we’ll get a deal and we’ll come out on October 31.”

The bill includes provisions for MPs to vote on the final version of Theresa May’s withdrawal agreement, thanks to an amendment passed by accident when tellers were not provided to record votes against.

A cross-party group calling itself MPs For A Deal – including former Tory minister Rory Stewart, who was expelled by Johnson this week, Labour’s Stephen Kinnock and Caroline Flint and Liberal Democrat Sir Norman Lamb – said May’s compromise plan, drawn up in discussions with opposition leaders, provided “a solid and realistic basis” for the PM to secure a deal which could be put to parliament when it returns from prorogation on 14 October.

With many thanks to: The Independent and Andrew Woodcock Political Editor for the original story @andywoodcock

Follow this link to find out more: https://www.gov.uk/brexit?gclid=CjwKCAjwzdLrBRBiEiwAEHrAYryCeMKVIUuVsqVyKDKdT4batEDzKSGRq0yi5URVxZI9S8h32UH2WBoCELAQAvD_BwE&gclsrc=aw.ds

 

Could Boris Johnson cut the North of Ireland loose?

Boris Johnson

 

Boris Johnson is trapped. He has thrown away his working Commons majority by expelling 21 reality-based Conservatives.

He gambled on his political enemies doing the thing he wanted them to, vote for an early general election, then appeared surprised when they declined to do so.

If he can’t get a Commons vote for that election next week, it seems quite likely he will face a legal requirement to request an Article 50 extension, with no prospect of an election and a new majority before 31 October that could free him from that obligation.

How does he get out of the hole he has dug himself? A lot of chatter is about resignation, but that would surely allow Jeremy Corbyn at least an attempt to form a government during the Fixed Term Parliaments Act’s 14-day interval before a dissolution. Corbyn would, you might guess, struggle to form a viable government. But how much would you bet on that?

Johnson is in his current plight because he bet on his opponents doing what he hoped they would; he would be bold indeed to bet again on their willingness to follow his script.

There remains another way out of this mess: pass Theresa May’s Withdrawal Agreement, with the backstop amended to apply only to Northern Ireland.

Could the EU, at this stage, offer such a deal? It’s certainly being discussed in Dublin these days. Remember, the EU originally wanted the backstop to apply only to Northern Ireland; in the EU view, allowing the whole of the UK to have complete access to the single market without an obligation to accept the ‘four freedoms’ was a significant concession to May. Not that she ever actually explained this to colleagues or voters, of course, a failure that partly explains her downfall and Britain’s current nadir.

There were two reasons May rejected an NI-only backstop. First, she needed the DUP’s support. Second, and more important to her, she believed it would jeopardise the Union to have Northern Ireland subject to different international rules to the rest of the UK.

Neither condition applies to Prime Minister Johnson. First, having already thrown away his majority by purging his colleagues, the DUP are irrelevant to him: whether they support him or no, he can’t command the Commons. Second, he’s suggested at least once that he doesn’t think issues around Northern Ireland and its border with the Republic should be central to the Brexit decision. ‘Letting the tail wag the dog’ was how he once described Government policy relating to an integral part of the United Kingdom.

The voters Johnson most cares about don’t care much about Northern Ireland either. One poll suggests that more than 80 per cent of Leave voters in England think unravelling the NI peace process is a price worth paying to get the UK out of the EU.

This is my speculation, of course, but will people happy to countenance a return to terrorist conflict to get Brexit, kick-up that much of a fuss if Brexit requires only the creation of a notional regulatory border in the Irish sea?

 

I suppose Johnson’s ‘antidemocratic backstop’ rhetoric would make it a bit tricky to apply the measure to Northern Ireland, whose voters would have no direct say on the EU rules that would apply to them. But bluntly, most people at Westminster are intensely relaxed about the suspension of the Northern Ireland Assembly and the possible restoration of direct rule. The democratic rights of people in Northern Ireland are rarely at the top of the political agenda in SW1A 0AA.

Would Tory Brexiteers swallow the WA with an NI-only backstop? I don’t know, but Johnson could reasonably tell them it was that or more delay and maybe no Brexit. OK, that was the May proposition when she tried to sell her deal. But:

i) Boris Johnson isn’t Theresa May: he gets the benefit of the doubt from colleagues and editors in a way she never did.

ii) Events since the rejection of the WA have proved that she was essentially right about her deal being the least bad option. And Johnson could just possibly hope for more Labour votes than May got.

Of course, Nigel Farage and the Brexit party would be furious. But that will happen regardless, and a hard Brexit deal that took the UK mainland out of the Single Market and Customs Union might well take a lot of the wind from their sails.

To be clear, I’m not advocating this course or even predicting it. Resurrecting the May Deal, even with a major change to the backstop, would be an implausible and risky choice. But so is every other option available to Boris Johnson these days. And politics, as someone once said, ultimately comes down to tough choices.

PS

Since filing this piece, I’ve seen that my old colleague Peter Foster has been airing some similar speculation.

I can’t add much to that beyond saying that Peter is very well-informed on these matters and if you don’t follow his work, you should.

With many thanks to: The Spector and James Kirkup for the original story 

Pro and anti-Brexit demonstrators clash on Parliament Square

https://www.thelondoneconomic.com/news/pro-and-anti-brexit-demonstrators-clash-on-parliament-square/07/09/