Wed, 13 Nov 2019

Prime minister Boris Johnson has failed to get his Brexit withdrawal agreement approved by the British parliament after a special weekend sitting. Instead of voting on the deal, MPs backed an amendment that buys a little more time. But Johnson has defied their wishes by sending one letter to the EU requesting a Brexit extension and another saying he doesn't really want one.

The amendment put forward by former Conservative (and now independent) MP Oliver Letwin passed 322 votes to 306. It essentially says that MPs are withholding approval of Johnson's deal until the actual legislation needed to enact it (called the Withdrawal Agreement Bill) is passed first.

Letwin's rationale here is to lock in an "insurance policy" so that if the new deal itself is approved but something subsequently upsets the broader raft of legislation necessary to ensure a managed Brexit, the government has an extension in place to prevent a no-deal scenario. However, putting this legislation into effect meant that Johnson's new deal could not be voted on. That in turn triggered the Benn Act - legislation obliging the prime minister to request an extension to Article 50 until January 31, 2020.

Johnson has been adamant from the outset that he would refuse to ask for an extension. Although he indicated that he would ultimately respect the letter of the law regarding the demands of the Benn Act, this didn't ultimately convert to respecting the law of letter-writing - that is, say what you mean and then sign it when finished.

Rather than writing one letter to the European Union, Johnson has sent three - almost. The first is less of a letter: rather an unsigned photocopy of a portion of of the Benn Act. Rather than asking for an extension on behalf of Johnson, the text merely points out that the Benn Act requires the government to seek an extension. After this, it adds that "if the parties are able to ratify before this date, the government proposes that the period should be terminated early". In what seems a fit of pique, and reinforcing his determination simultaneously to write and refuse to write to Brussels, the prime minister declined to actually sign the missive.

The first communication was accompanied by a letter from Tim Barrow, the UK's permanent representative to the EU. This is equally sparse and merely informs the EU that the first letter has been sent. Without specifically mentioning the Benn act, it adds that the UK government is pressing on with plans to get a deal completed by October 31.

Third time lucky?

The third letter is from Johnson to Donald Tusk, president of the EU Council. After warm overtures thanking his EU counterparts for their understanding, Johnson states that the deal should go ahead and that the current delays in "delivering the mandate of the British people" have had a "corrosive impact", indicating that parliament's decision to support the Letwin amendment rather than voting on the deal itself will now result in further delay.

Johnson's choice of words here is instructive. It is parliament that has "missed the opportunity to inject momentum into the ratification process for the new withdrawal agreement", effectively forcing his hand to request an extension.

Adding to the sense that the content of the first letter bears little resemblance to what he believes (and indeed attests via his signature) Johnson writes that he "would have preferred a different result" in parliament and that many of the MPs who voted for the Letwin act actually support a deal, outlining his confidence that the UK can complete the process in time for the October 31 deadline.

He suggests that, in terms of a possible extension, "it is for the European Council to decide when to consider the request and whether to grant it". No rush, in other words. Taken together, these three letters send diametrically opposed messages to both the EU and the UK.

The Benn Act has extended the parliamentary timetable, while the Letwin Amendment has deepened the legislative requirements of getting the Withdrawal Agreement Bill and its accompanying raft of legislation through parliament. This buys more time for MPs opposing the deal to come up with ways to alter its progress; equally, you could argue that it gives Johnson time and space to get both the legislative grounding and parliamentary coalitions arguably needed to get the deal in its entirety through parliament.

For the prime minister, the grudging letters to Brussels, and continuing determination to push hard to get a deal through parliament as soon as possible, highlight his (and others') genuine impatience at having to commit further time and energy to the deal itself. It also adds to a growing feeling that the main goal from Number 10 is to continue to set the stage for a general election, primarily by framing all opposition as fundamentally anti-Brexit.

Domestic backlash?

The prime minister has already waded through the courts for illegally proroguing parliament, and lost badly. He now appears perilously close to another clash.

The Scottish Court of Session could rule in a matter of days on whether Johnson is trying to circumvent the law by not signing the letter - having already begun considering this precise question when it it became clear that Johnson could potentially deploy such a tactic. Having delayed its decision, the court may now conclude that a government minister cannot undertake anything that would actively frustrate what is written in statute (in this case, the Benn Act). This is known as the Padfield principle.

There is also the issue of the clear discrepancy between the request for an extension in the first letter, and the prime minister's subsequent insistence that he doesn't want one.

This could of course be bluster born out of aggravation at having lost the opportunity to get the House of Commons to vote on his deal. But it could also spell real problems if Johnson makes further attempts to refuse to discuss the three-month extension specified in the Benn Act.

MPs now face a busy time. The Letwin amendment shifts the focus away from Johnson's deal and onto drawing up the legislation needed to get the Withdrawal Agreement Bill through once and for all. There is no doubt that getting the final passage of the bill through the house, in whatever form, will be challenging and time consuming.

Will Super Sunday convert to Magic Monday? The government clearly wants a meaningful vote on the deal this week, as ministers and MPs have made clear today, but there will be clamour for other demands, too. Amendments are bound to be proposed to the Withdrawal Agreement Bill, from Labour's demands to strengthen workers' rights and environmental protection to requiring a referendum on the final deal. Nor have the customs and consent issues regarding Northern Ireland been resolved.

Even without the daunting prospect of resistant MPs and the particular approach of Commons Speaker John Bercow - not to mention the parliamentary time that still needs to be found to debate Johnson's Queen's Speech - it seems a tall order to get the deal done by October 31.

Author: Amelia Hadfield - Head of Department of Politics, University of Surrey The Conversation

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