Eurointelligence wrote yesterday morning "No, the Scottish courts will not stop Brexit"
I thought the stuff on Scotland silly I did not bother writing about it. Here's the Eurointelligence take.
The Brexit saga underwent another plot twist yesterday when two British courts, the High Court of England and Wales, and the Inner House of Session of Scotland, simultaneously issued diametrically opposed judgments on whether Boris Johnson’s decision to prorogue parliament was lawful. The English court held that this is not a matter for the courts but for parliament. The Scottish court found that not only was the issue justiciable, but that Boris Johnson had acted unlawfully in advising the Queen to prorogue. Each decision is being appealed to the UK Supreme Court by the losing party, one on each side.
We expect this to be of more significance to the debate over Scottish independence than to Brexit. Legal commentators, including the retired Supreme Court judge Lord Sumption, expect the UK Supreme Court to side with the English ruling rather than the Scottish one.
So far so good.
If the Supreme Court, as we expect, does not intervene on prorogation, that leaves Hilary Benn's legislation - requiring Johnson to seek an extension to the Art. 50 withdrawal period - as the main tactical approach left for Remainers.
Not sure what Eurointelligence means by "tactical" but Johnson has a legal challenge to Benn, if he wants one.
Benn does nothing if a challenge is upheld (as it should be).
But Johnson may have better ideas than issuing a challenge.
The act has been repeatedly and mistakenly described in the British media as "taking no deal off the table", which illustrates how few journalists have bothered to even read the plain words of its text. Johnson is required by the act to send a letter to the European Council requesting an extension until 31st January 2020. But the act only requires that he send this letter on October 19. Even then, he only has to send the letter if parliament hasn't agreed to either a deal or a no-deal exit by that date. Both scenarios being explicitly allowed by the legislation. Moreover, it allows Johnson to withdraw the letter if the House of Commons votes in favour of either a withdrawal agreement or of no-deal exit between 19th October and 31st October.
That paragraph seems to dispute the one that immediately preceded it.
So is Benn a key tactical strategy or not?
We think the Remainers committed a strategic error. It was a mistake to leave the machinery of government in Johnson's hands between now and October 31. He will be the only person in the room negotiating and speaking to other heads of government. It also leaves plenty of avenues at his disposal for frustrating an extension request. However watertight Hillary Benn’s legislation might seem, one thing it cannot do is muzzle the prime minister or limit his right to make political statements, both within the House of Commons and at the European Council in October. It also means Johnson now has five more weeks to dominate the UK media agenda, unimpeded by parliamentary questioning thanks to prorogation.
Machinery in Johnson's Hands?
Is it? How?
Even though I dismiss Benn, Parliament at any time may opt for a motion of no confidence. A puppet government could easily take control.
Yes, Johnson can control the discussion with the EU. But the motion of No Confidence hangs like the Sword of Damocles over his head.
More importantly, Johnson has repeatedly and publicly committed to not complying with the legislation and not issuing the extension request letter on October 19. If that were to happen, it is unclear what the consequences would be for him. Lord Sumption suggested the courts could intervene and have a civil servant issue the extension request letter on behalf of the prime minister. Dominic Grieve has suggested the courts might even imprison the prime minister, although this seems to us quite fanciful.
That is flat out false. Johnson has stated he will not seek an extension. But he has also repeatedly stated he will not break the law.
How that can be, I am unsure. But if someone bets you the queen of spades will jump out of the deck and spit grapefruit juice in your eye, and you take the bet, expect an eyeful of grapefruit juice.
Is a legal challenge breaking the law? What about producing a deal?
We think that Remainers actively seeking either of these outcomes would be a calamitous error, even if it were the natural progression of the British legal process. It would lead to very legitimate arguments by the UK’s right wing press and the Brexit Party about a British establishment stitch-up, with remain MPs, civil servants and judges conspiring to bypass Johnson and thwart the effects of the 2016 referendum result. It would also play straight into the hands of Johnson's strategist, Dominic Cummings, who in our view has identified that the Conservatives' best chances of electoral victory are in taking this dispute to the absolute brink.
We do not think that any of this is very likely, and we expect that the UK’s courts will be reluctant to take responsibility for the political effects of Brexit, and will want to keep the ball firmly in the hands of parliament. We suggest the only real prospect of getting the UK parliament to come to a clear decision is for the European Council either to rule out a further extension request next month, or to grant an extension of a few weeks only on condition that the UK hold general elections to try and break the deadlock.
The EU is aiding and abetting the Remainers. They might even grant an extension for a referendum even if the Referendum took a year.
The problem for the EU is that Johnson is likely to win the election.
Is the DUP softening its stance on the backstop? As no-deal Brexit gets closer, even hardcore backstop defenders in Northern Ireland are softening their posturing. A last-minute deal is possible. Angela Merkel said yesterday that a deal can be done even on the last day before the deadline expires. No one wants a hard Brexit.
The Tories and the DUP are currently working on a compromise. The Northern Ireland-only backstop is still a no-go for the DUP. But its leader, Arlene Foster, is now talking about a sensible deal, which the Irish Times interpreted as a move into "I can’t believe it’s not the backstop" territory.
Nigel Dodds told BBC News that there could be arrangements for the benefit of Northern Ireland, the Republic and the EU. He added that any such arrangements would require the assent of the Northern Ireland assembly. But the assembly has been suspended for years. We agree that a Northern-Irish backstop is the way to go, but there are formidable obstacles, which is why Theresa May chose not to pursue this option, and why the EU accepted the ill-fated all-UK backstop solution instead.
Theresa May needed the DUP to govern.
Johnson doesn't because he is more than 30 in the hole. He could easily throw DUP under the bus, albeit with consequences, if he gained compensating votes elsewhere.
Until we get well inside the 14 day window before Oct 31, Parliament can oust Johnson at will.
If by Oct 29 Johnson is not outed and there is no extension, then it is certain Brexit will happen, deal or no deal.
Meanwhile, this Parliament will stop at nothing. Only the ego of Jeremy Corbyn can foul up a successful motion of no confidence coupled with a new caretaker PM.
Next Up, October 14
Between now and October 14 not much is likely to happen. The UK court will rule the Scotland challenge is nonsense, then we wait to see what both sides do.
A breakthrough with DUP and Ireland is the main possible exception to the nothing much happening before October 14 idea.
Meanwhile, No Deal is still on the table. It has to be. It remains the default legal position.
Mike "Mish" Shedlock