Yesterday, it looked like Boris Johnson had the momentum to gain a narrow majority in Parliament to approve his new Brexit deal. Just hours later, however, the question got mooted through a procedural effort to close off any attempt at a covert no-deal Brexit. The PM and his government lost a vote on an amendment from Oliver Letwin that withholds any approval on Johnson’s deal until he supplied the actual legislation that would enable it. The loss will now force Johnson to seek an extension — although Johnson himself insisted that he could avoid it:
Lawmakers voted 322-306 for the amendment, put forward by former Conservative lawmaker Oliver Letwin. It means that parliament will not vote on Saturday on whether to approve Johnson’s agreement.
Unless Johnson has approved a deal by the end of Saturday, he is obliged by law to ask the EU for a Brexit delay until the end of January 2020. If Johnson can get all the legislation through parliament, he could still deliver Brexit by Oct. 31.
The final vote on the Letwin Act is significant, as it signals real trouble for Johnson’s deal regardless of the procedural issues. The DUP, which has provided the necessary seats to prop up the Tory government since Theresa May’s disastrous snap election, wound up voting for the Letwin amendment today in protest of the deal itself. Had the DUP stuck with him, Johnson would have defeated the Letwin amendment 316-312 and scored the first major parliamentary success of his government. A no-deal Brexit would be preferable to the DUP, at least theoretically and in the short run, than the deal Johnson negotiated that cuts Northern Ireland out of the UK’s customs and regulatory regime.
If Johnson can’t get the DUP back behind him on the outlines of this deal, then the enabling act has little chance of passing either. Letwin himself says he will likely vote for it now that his amendment has foreclosed a default no-deal Brexit, but will the rest of the 305 MPs who tried to kill the Letwin amendment? The devil of Johnson’s deal will be in those details, and the more of those Johnson has to put on paper without Parliament having already committed to authorizing the deal, the more risk he assumes of having soft support peel away.
More acutely, Johnson now has to decide whether to abide by the Benn Act. He had until 11 pm GMT today to gain parliamentary approval for any Brexit deal without requesting the EU for a 90-day extension on Article 50. Parliament passed the bill at the beginning of September to prevent Johnson from cooking up an impasse that would lead to a default no-deal Brexit, and they even wrote into the law the precise wording of the letter the PM must send to the EU for the request. If the EU approves the request, the PM must abide by it; if the EU counter-proposes a different date, the PM must accept it or else Parliament can accept it in his stead. It was written to be watertight, and any attempt to bypass it will quickly end up in court.
Johnson claimed in the post-Letwin speech that he doesn’t think the Benn Act obligates him, but so far his office is playing that argument very coolly. He has a few hours to ruminate on this, but it does appear that Johnson’s hands are tied. Guardian reporter Rafael Behr suggests that Johnson will pout for a while, then abide by the law:
I'm guessing Johnson will send a surly Benn act letter but wants a few hours of 'MPs spoil Brexit again' headlines first. Deadline is 11pm.
— Rafael Behr (@rafaelbehr) October 19, 2019
Johnson doesn’t have too many options left, at least if he intends to abide by the law. The Letwin amendment cut off his most promising avenue of getting around the Benn Act, but he has a few other options. Johnson could send a second letter repudiating the first, but the EU could simply recognize the first and ignore the second in offering an extension, too. Johnson could work with any allies within in the EU to get one member-state to veto the extension, but given the annoyance factor the UK has provided, there’s probably few to zero European leaders willing to pull Johnson’s political chestnuts from the fire, especially not in service to a no-deal Brexit. Johnson could leverage his unpleasantness within the EU by threatening to sabotage it if forced to remain within it, but that’s a short-term strategy with long-term consequences — whether it works or not.
If Johnson really wants this deal, an extension should be no big problem. If he can get the enabling act passed by Parliament in the next two weeks, the extension won’t be needed anyway. If, however, this deal was intended as an end-around for Johnson’s desire for a no-deal Brexit, as Letwin and 321 other MPs suspected it was, then he’s stuck … unless the EU rescues him. Hmmm:
— AFP News Agency (@AFP) October 19, 2019
Even assuming Johnson does send the Benn Act letter and the EU offers the extension, what does come next? This deal will likely go down to defeat unless the terms change enough to get DUP on board, and the changes necessary won’t be accepted by the EU. Labour wants a second referendum, but that’s absurd; what happens if Remain wins this time 51/48? Which referendum would matter more? Why not hold a third referendum after that and call best-out-of-three?
The real solution is to clarify the electorate’s desires by holding a national election on the Brexit question. That’s how parliamentary systems are supposed to work, where executives operate on the confidence of the legislature and therefore their negotiations with foreign powers have credibility and legitimacy. Two successive Tory governments have lost so many votes on Brexit this year that credibility and legitimacy are practically laugh lines at this point. Johnson can either campaign on this deal or a no-deal Brexit, while Labour can campaign on Remain, and the end results should make it clear to the Parliament that the election produces how to proceed with the EU. Until that happens, Johnson’s not the only one stuck in the Brexit brambles.
Addendum: Don’t forget that Johnson’s government told a court two weeks ago that he would comply with the Benn Act if this circumstance came to pass. Refusal to do so now could mean a boatload of legal trouble for Johnson:
Legal sources believe the prime minister is in significant legal peril. Lawyers for the UK government told the court on 9 October they knew the solemn pledges given at an earlier hearing that Johnson would comply with the act were legally-binding.
The UK government told the court of session on Friday 4 October the prime minister accepted “he is subject to the public law principle that he cannot frustrate its purpose or the purpose of its provisions. Thus he cannot act so as to prevent the letter requesting the specified extension in the act from being sent.”
And the court will also adjudicate on a second part of the application: an interdict forcing the UK government not to frustrate or undermine the intent of the letter, by attempting to sidestep the extension move.
If he or his ministers, or their proxies, try to subvert the request for an extension – say be sending a second letter asking the EU to ignore the extension application, they will also be at risk of contempt.
And the court has the authority — rarely invoked but still extant — to use a contempt order to bypass the PM:
It is only if Johnson fails to send the letter and fails to adhere to the court’s interdict requiring him to do so that the court will consider the nuclear option. It has unique powers called nobile officium, which allow the court or its agent to send that letter to all 27 EU member states and institutions on Johnson’s behalf.
Johnson and his team are no doubt mulling over that point, but their concession to get the court to beg off the fight is what created this trap.
Update: Regardless of the vote on the Letwin amendment, the government wants another vote on approval. Speaker John Bercow will rule on Monday whether such a vote can take place:
The speaker of the House of Commons John Bercow said he would rule on Monday if he will allow the government to put forward a vote on Prime Minister Boris Johnson’s Brexit deal.
There is a convention in parliament that the same question cannot be put twice during the same session. …
“I will reflect on it and give what I hope is a fully considered ruling on this matter on Monday. I will do so of course having taken advice in appropriate quarters,” Bercow told parliament, when asked by lawmakers whether this was allowed.
“The government is not the arbiter of what is orderly.”
May got two extra votes in spite of this parliamentary convention for her Withdrawal Agreement in March and April. In this case, one has to wonder whether the government even got one vote on its question. However, the Letwin amendment more or less makes the question moot; any vote now would simply be advisory, not binding. And even then, given the vote on the Letwin amendment, it’s not likely to turn out in Johnson’s favor.
You know who got what he wanted out of today’s vote? Nigel Farage:
Brexiteer Farage – who favours a No Deal exit – earlier said he’d rather have a THIRD extension than back Boris’ “dreadful” deal.
And he stood by it today as he said in a national newspaper ad: “Mr Johnson plans to reheat most of Theresa May’s appalling withdrawal agreement.
“Mrs May’s deal would imprison Britain under EU rules with no vote, no voice, no veto – and no way out.”
Shortly before the vote, Farage laid out why Johnson’s deal was the “second worst” in history:
Update: I alluded to this earlier, but I’ll just add it a little more explicitly here — an EU extension has to be unanimous. It only takes one member state to veto it. If Johnson can swing any of the 27 leaders into objecting to an extension, then the Benn Act is moot. That member state still has to live with the other 26 within the EU, of course, but it’s possible for Johnson to get out from under the Benn Act in this manner and get his no-deal Brexit on Hallowe’en.