Which MPs are responsible for failing to ‘get Brexit done’?

meg_russell_2000x2500.jpgToday Boris Johnson will give his leader’s speech at Conservative Party conference, doubtless with a central argument about the need to ‘get Brexit done’. MPs have been blamed for the failure to achieve this. But which MPs precisely are responsible? Meg Russell argues that opposition parties cannot normally be expected to deliver government policy. Instead, government backbenchers usually have that role. It is resistance from Conservative backbenchers – including Johnson himself and others promoted to his Cabinet – to supporting Theresa May’s deal that provides the most obvious reason for Brexit not having been agreed.

The slogan for this year’s Conservative Party conference, under the leadership of the new Prime Minister Boris Johnson, is to ‘get Brexit done’. Immediately following the Supreme Court ruling against the government last week, ill-tempered exchanges in the House of Commons saw the Prime Minister repeatedly blaming parliamentarians for failing to deliver Brexit. For example, Boris Johnson commented thatPoliticians of all parties promised the public that they would honour the result. Sadly, many have since done all they can to abandon those promises and to overturn that democratic vote’. In contrast he pledged thatWe will not betray the people who sent us here; we will not’, adding that ‘That is what the Opposition want to do’. Far stronger words, characteristically, have been ascribed to his chief adviser Dominic Cummings in blaming parliament for the Brexit impasse. Several papers have reported Cummings as suggesting that it was ‘not surprising’ that people are angry with MPs, as they have failed in their duty to get Brexit done. Given the risks that such comments further stoke such public anger against our democratic institutions, it seems important to consider exactly which MPs primarily bear responsibility for the failure to agree a Brexit plan.

First, a quick recap on what happened in the months before Johnson took office. His predecessor, Theresa May, pursued a lengthy negotiation with the EU27 – resulting in a withdrawal agreement that was signed off on 25 November 2018. Under the terms of Section 13 of the European Union (Withdrawal) Act, this deal was then put to an initial ‘meaningful vote’ in the House of Commons on 15 January 2019. However, it was defeated by MPs by a whopping 432 to 202 votes. The Prime Minister subsequently brought the deal back for a second such attempt on 12 March. By this point various MPs had been brought round to supporting the deal; but it was nonetheless still heavily defeated, by 391 votes to 242. A third and final attempt at getting the House of Commons to agree the deal then occurred on the originally-planned Brexit day, of 29 March 2019. This was not a ‘meaningful vote’ under the terms of the Act, as Speaker John Bercow had hinted that such a move could be ruled out of order – on the basis that MPs cannot just repeatedly be asked to vote upon the same proposition – but it was again an in-principle vote on the deal. Again the gap between supporters and opponents narrowed, but the government was defeated by 344 votes to 286 – a margin of 58. Hence a further 30 MPs would have needed to switch from opposing to supporting the deal in order for it to be clearly approved. Continue reading

This prorogation is improper: the government should reverse it

meg_russell_2000x2500.jpgalan.jfif (1)professor_hazell_2000x2500_1.jpgBoris Johnson’s prorogation announcement has generated widespread criticism, and will be hotly debated when MPs return today from their summer break. Meg Russell, Alan Renwick and Robert Hazell argue that the decision to suspend parliament for five weeks was an improper use of executive power, sets dangerous precedents, and undermines fundamental principles of our constitution. It should therefore not proceed. MPs may seek to block it, and so may the courts, but the preferable route would be for the government to recognise its mistake and reverse it.

MPs return to Westminster today after the five-week summer recess in deeply unusual and worrying circumstances. Last week Prime Minister Boris Johnson, who has faced just one day of parliamentary scrutiny since taking office on 24 July, triggered a prorogation of parliament, set to last another five weeks. Particularly given the Brexit deadline of 31 October, this has caused widespread consternation: among opposition parties, senior Conservatives (such as former Prime Minister Sir John Major, and Lord Young of Cookham who served for 24 of the last 40 years on the frontbench under a succession of Conservative leaders), plus constitutional experts, and the wider public. MPs must now decide how to respond, and meanwhile the action is being challenged in the courts. In this piece we argue that the prorogation was improper, that it sets dangerous precedents, that it is contrary to our constitutional traditions, and that there is still time for the government to defuse the crisis by reversing it.

The rights and wrongs of prorogation

At one level, parliamentary prorogation is entirely uncontroversial. By routine, a short prorogation usually occurs each year between the end of one parliamentary session and the start of the next – ahead of a new Queen’s speech. In addition, a short prorogation often occurs before parliament is dissolved for a general election, in order to regulate the timing and ensure that election day takes place on a Thursday. The recent practice and procedure of prorogation is set out clearly in an excellent briefing from the House of Commons Library.

Discussion of potentially more sinister uses of prorogation began during the Conservative leadership contest, when Dominic Raab (now Foreign Secretary) refused to rule out proroguing parliament to force through a ‘no deal’ Brexit in the face of opposition by MPs. This was roundly condemned by others in the race at the time: being described by Sajid Javid (now Chancellor of the Exchequer) as ‘trashing democracy’, and Michael Gove (now effective Deputy Prime Minister) as ‘a terrible thing’. Andrea Leadsom (now Secretary of State for Business, Energy and Industrial Strategy) commented that ‘I don’t think prorogation is the right thing to do and I don’t think that a Prime Minister would choose to do that’.

Following Johnson’s prorogation announcement, ministers have instead suggested that this is absolutely standard procedure. On Thursday’s Today programme, the Leader of the House of Commons, Jacob Rees-Mogg, claimed that it was more or less what happened every year, and that it was ‘because of the 3 ½ weeks of conference recess [that] it is five weeks in total’. Hence Rees-Mogg accused critics of the move of expressing ‘confected anger’.

But such suggestions of normality are disingenuous, seeking to exploit public confusion between the different means by which it can be decided that the Commons will not sit. It is important to distinguish between the following three things:

Prorogation brings all parliamentary business to a complete stop. Unless rescued by a government motion, bills that are before parliament fall and must start their passage again. Importantly, the decision to prorogue lies wholly in the hands of the government – through issuing advice to the Queen, which she is duty bound to accept. Usually a prorogation lasts for just a few days. Research by the House of Lords Library shows that a five-week prorogation will be the longest since 1930.  

Parliamentary recess is very different. Recess occurs periodically throughout the year, to accommodate holidays and, usually, a break for the party conferences. However, the decision to adjourn for recess lies with MPs. The motion for the 2019 conference recess had not yet been laid, and the looming Brexit deadline meant that there was increasing pressure from MPs to cancel or cut this recess short. Crucially, it is also possible for some parliamentary business – such as meetings of select committees – to continue during recess, and the progress of bills is not halted.

Dissolution of parliament in contrast occurs before a general election. Under the Fixed-term Parliaments Act, the decision to dissolve parliament again lies with MPs themselves – and is taken by a parliamentary vote. Dissolution does not simply suspend parliament: as the name suggests, it dissolves parliament in preparation for the creation of a new one through a general election.

Hence either recess or dissolution, sometimes combined with a short prorogation, frequently result in parliamentary breaks which last a number of weeks. But in both of these cases MPs take the decision to break themselves. Had ministers genuinely wanted to hold a ‘routine’ prorogation to facilitate a Queen’s speech, as they claim, they could easily have proposed one lasting a few days, and left the decision to MPs regarding whether to take the conference recess. Instead, they have proposed the longest prorogation for 90 years, using executive power to shut down parliament in the midst of a crisis – seemingly to avoid the risk that MPs would veto the conference recess, and perhaps use the time available defeat the government on other things. As suggested in the previous comments of Conservative leadership contenders, that represents an improper use of executive power. Continue reading

Might Boris Johnson try to call an election sooner than people think?

professor_hazell_2000x2500_1.jpgmeg_russell_2000x2500.jpgWhile there has been much talk about a possible vote of no confidence when parliament returns in the autumn, speculation about the possibility of the Prime Minister himself seeking to trigger an immediate election in September has been much more limited. In this post, Robert Hazell and Meg Russell suggest that an October election could hold some attractions for Johnson, but it would also hold significant risks. Crucially, under the Fixed-term Parliaments Act Labour could readily block him from pursuing it.

Since Boris Johnson became Prime Minister on 24 July there has been a daily blizzard of announcements from No 10 trumpeting more spending on the police, the NHS, schools, and other public services. This has led some commentators to conclude that he is gearing up for an autumn election. The context has largely been speculation, on the one hand, about a possible parliamentary vote of no confidence triggering such an election either shortly before or after Brexit day on 31 October, or on the other hand, over whether Johnson could successfully proceed with a ‘no deal’ Brexit, pulling the rug from under the Brexit Party, and hold an election in November.

Much energy has gone into debating how parliament might prevent ‘no deal’, considering possible legislation, votes of no confidence, governments of national unity, the caretaker convention, and the the Prime Minister’s ability to advise the Queen when polling day will be. On this blog, we have contributed our share (see here). But amidst the speculation about a vote of no confidence under the Fixed-term Parliaments Act, there has been far less focus on the possible use of the other route to an early election provided in the Act, which is to invite the Commons to agree to an early dissolution. One exception was a piece in last week’s Spectator, suggesting that when parliament returns on 3 September Boris Johnson could immediately trigger such a vote, potentially leading to a general election on 10 October. Theresa May, after all, surprised everyone by triggering an early election in 2017. Could Boris Johnson do the same?

This post considers the reasons why the Prime Minister might be tempted to pursue such a route, and the very significant obstacles that he would face.

Why Boris Johnson might favour a snap election

The potential scenario is this: Boris Johnson returns on 3 September announcing that he wants to call an early election, to seek a mandate to bolster his tough negotiating position that the EU must drop the Irish backstop – or that failing that, the UK would pursue a ‘no deal’ Brexit. He might claim that this was necessary to appeal over the heads of intransigent MPs to the public at large. Continue reading

Negotiating after no deal

kassim.jpg (1)Until now, much of the discussion concerning ‘no deal’ has been about how it might be avoided or how it will affect daily life. However, after a ‘no deal’ Brexit, the EU and UK would not simply go their separate ways. A trade deal will still have to be negotiated. Hussein Kassim shows that the procedures that would come into play are unlikely to favour the UK and sets out how leaving without a deal is likely to affect the negotiating environment.

Much of the discussion about ‘no deal’ has focused on the UK. It has detailed how Number 10 might force ‘no deal’ through, and speculated on the possibilities and prospects of parliament being able to prevent it. The preparedness of the UK, and the fallout on day-to-day life and commercial activity, have also been considered. Although these are obvious concerns, it is important not to overlook other consequences of leaving without a deal. ‘No deal’ will have an immediate impact on negotiations with the EU. Specifically, it will terminate the Article 50 process. While many Brexiteers have never been happy with Article 50, it is not at all clear that bringing it to an end will be to the UK’s advantage. Nor is it obvious, contrary to Foreign Secretary Dominic Raab’s suggestion on BBC Radio’s Today programme on 29 July, that leaving without a deal will strengthen the UK’s position in the negotiation of a future trade agreement. As well as the procedural issues that ‘no deal’ will entail, the relationship between the UK and the EU is unlikely to be improved.

Procedures and processes

The UK’s withdrawal is currently being negotiated under Article 50, which sets out a procedure created specifically for a member state that has decided to leave the EU. Such a state can, at a time of its choosing, open a two-year period of negotiations to settle outstanding liabilities and agree the shape of its future relationship with the EU. Any withdrawal agreement must have the support of a ‘qualified majority’ of the European Council and is subject to the approval of the European Parliament. It does not need to be ratified by national parliaments.

Article 50 is intended to provide for an orderly and minimally disruptive exit. The two-year period it imposes is intended to concentrate minds. But Article 50 also allows the deadline to be extended if requested by the departing member state and agreed unanimously by the other member states, as it has been twice. Moreover, Article 50 negotiations are a matter of high priority for the EU. The European Council, Council of the European Union, and the European Commission have devoted considerable resources to the process, which have been focused on the EU negotiator, Michel Barnier. They have worked closely together with each other and with the European Parliament. The European Council and the European Commission have also been concerned to ensure a continuous flow of communication between the EU institutions and the capitals of the EU27. It is not at all clear that the negotiations would have the same level of priority or resource under another arrangement. Continue reading

Can Boris Johnson ignore parliament and force a no deal Brexit?

meg_russell_2000x2500.jpgprofessor_hazell_2000x2500_1.jpgControversy is swirling over the extent to which Boris Johnson’s government must be bound by parliament, particularly regarding a ‘no deal’ Brexit. Some have even suggested that Johnson could flout a Commons vote of no confidence and pursue this outcome contrary to parliamentary support. Meg Russell and Robert Hazell explore such questions, concluding that both convention and parliamentary logic mean Johnson cannot ultimately force a ‘no deal’. But to prevent this MPs must be organised and determined.

There has been much recent controversy about whether Boris Johnson’s new government can press ahead with a ‘no deal’ Brexit against the express wishes of the House of Commons. This was kicked off in part by a front-page story in Tuesday’s Times headed ‘Johnson to defy any vote of no confidence’ – suggesting that even if MPs went so far as to withdraw their support from the government, the Prime Minister could stay on and force a ‘no deal’ Brexit, perhaps in the middle of a general election campaign. Various commentators have subsequently expressed their views. Many questions raised are close to those that we addressed in an earlier post on this blog reflecting on constitutional questions surrounding the (then still awaited) appointment of the new Prime Minister. Here we return to some of these questions, and our conclusions are twofold. First, despite disparate commentators’ voices, there is a high degree of agreement on the key issues. Second, the essential answer to the question posed in our title is ‘no’. But this depends on strong political will and organisation by the forces in parliament opposed to ‘no deal’.

The options available to MPs

Much energy has been spent in recent months, including prior to the Johnson premiership, reflecting on what MPs’ options are if they want to block a ‘no deal’ Brexit. The general view – for example from the Institute for Government, and from Jack Simson Caird on this blog – is that such options are limited, but do exist. MPs’ continued determination to prevent a ‘no deal’ outcome was demonstrated by the heavy defeat inflicted on Theresa May’s government over the Northern Ireland (Executive Formation) Bill – which in effect blocked the threat of an autumn prorogation. On a previous occasion, ‘no deal’ was defeated by 400 votes to 160. Now, following the departure of many ministers from the government, the forces against ‘no deal’ on the Conservative backbenches are even stronger.

Continue reading

Why Northern Ireland can’t afford a ‘do or die’ Brexit

nick.wright.jpgBoris Johnson is demanding that the Withdrawal Agreement is scrapped and renegotiated, and is insisting that he won’t meet EU leaders until they agree to this. The major source of contention is the backstop, which guarantees an open border on the island of Ireland post-Brexit, but ties the UK to the EU’s Customs Union. In a new Brexit Insights paper, Nicholas Wright assesses the politics of the backstop and ‘no deal’, and what all this means for Northern Ireland. 

During his leadership campaign, Prime Minister Boris Johnson engaged in an increasingly shrill rhetorical arms race with his rival, Jeremy Hunt, over who will be toughest with the EU in delivering Brexit. In particular, his ire was focused on the hated ‘Irish backstop’ which has come to symbolise all that Brexiters loathe about the Withdrawal Agreement. Indeed, Mr Johnson has promised to remove this element of the deal, declaring that if the EU will not renegotiate, then the UK will leave on 31 October, ‘deal or no deal’, suggesting that the costs of exiting in such circumstances will be ‘vanishingly inexpensive if you prepare’. Such claims fly in the face of reality and nowhere can this be seen more clearly than in Northern Ireland. Indeed, it is here that the consequences of Brexit and the trade-offs implicit in its delivery are most starkly revealed.

Since the beginning of the Brexit process, the UK government has been trying to reconcile the ‘Irish Trilemma’: UK departure from the EU’s single market and customs union; an open border between Northern Ireland and the Republic; and no new trade or regulatory barriers between Northern Ireland and the rest of the UK. You can have any two, but a combination of all three is impossible. This matters because the 1998 Good Friday Agreement and all that has resulted from it were predicated on the open and invisible border and shared regulatory space that come with EU membership. These have underpinned efforts in Northern Ireland to chart a new pathway, not least by reducing the prominence and difficulty of complex questions around identity. Doing so has not been easy, something demonstrated by the collapse of power-sharing and suspension of the Assembly in Stormont. The prospect of changes to border arrangements – and particularly anything necessitating the re-establishment of any border infrastructure – therefore risks further undermining a fragile equilibrium that reflects Northern Ireland’s ‘relative peace but minimum reconciliation’. Continue reading