The Johnson administration has just suffered the second part of a double whammy of defeats.
As the Supreme Court set out, we don’t know the motive for the excessively lengthy prorogation: but if it was an attempt to stop MPs legislating to take no deal off the table then the tactic backfired. The threat of the prorogation (that now isn’t) galvanised MPs into working together and passing legislation – the Benn Act – designed to prevent a no-deal Brexit. Some MPs might have preferred to wait until October before acting. Instead the prime minister’s hands were tied earlier than they might have been.
And now, after accusing the government of frustrating Parliament, the Supreme Court has handed down the sternest possible rebuke. It has quashed the Order in Council – which led to Parliament’s suspension – approved by the Queen after she was asked to do so by the government.
Lady Hale, the president of the Supreme Court, has said that the decision is not about Brexit. But can MPs use the extra parliamentary time to make a difference to Brexit?
On Wednesday, after prorogation, the government disgorged its five-page top-level planning assumptions for a no-deal Brexit. But those plans are the tip of the iceberg: plenty more detail lies beneath in departments.
Ministers have also said that the Operation Yellowhammer document, dated 2 August, has now been overtaken by the Johnson administration’s ramping up no-deal planning. Michael Gove is tracking over 300 individual projects with 700 key delivery milestones – Parliament could demand information on what is and isn't on track, and departments should be examined on their individual plans.
There are some more general questions too: the Treasury should be asked how it is ensuring value for money on Brexit spending – and what it plans to do to support businesses affected by no deal. And the Public Administration and Constitutional Affairs Committee could ask the cabinet secretary how he can justify government websites asserting: “The UK will be leaving the EU on 31 October”.
The Operation Yellowhammer document made clear the government has no workable plan for a no-deal outcome in Northern Ireland. Since the suspension of Stormont, Northern Ireland has had no ministers to make its own voice heard effectively. Assuming there is no restoration of the power-sharing executive (which seems the most likely bet), then ministers in Westminster will have to take powers to manage the fallout from no deal in Northern Ireland. If ministers think that prospect is still on the table, then that legislation should come before 31 October.
The government says it wants a deal – and is sharing non-papers with the EU. But like Theresa May’s government before it, the Johnson administration is keeping any discussion of its approach away from Parliament. So, it is time for the Exiting the EU Committee to have a session with Brexit Secretary Stephen Barclay and the prime minister’s chief EU negotiator David Frost.
The government's negotiating strategy should also be the top topic whenever the prime minister reschedules the Liaison Committee hearing which was due to take place a few days after Parliament disappeared on 9 September.
Parliament should put the Home Office under the microscope on settled status and UK citizens in EU countries
The growing concern on the functioning of the settled status scheme also requires some serious scrutiny. Is it going as well as the Home Office claims? Should we be concerned that so many people seem to be ending up with pre-settled status? Is the government planning any independent oversight or appeals mechanism in the event of no deal? And what rights is the government securing for UK citizens in other EU countries?
A number of EU countries are increasingly worried about what the UK is doing for their citizens – and that could mean they offer less good treatment to UK citizens.
The final thing those MPs might choose to do is look at whether the Benn Act is as watertight as MPs thought when it passed. Lawyer Jolyon Maugham (one of the key actors in the Supreme Court case) thinks there is a loophole: if MPs pass a meaningful vote before 19 October but fail to pass the Withdrawal Agreement Bill required to put a deal into law, then the UK could still leave the EU without a deal on 31 October. If MPs think this is a real risk, they could take up the Speaker’s offer of using emergency debates – Standing Order No.24 debates – to take control of the order paper again and improve the bill.
The Supreme Court has fired a warning shot at the government about further attempts to frustrate Parliament – and has inflicted some political pain too. But nothing the court has done changes the fundamentals about Brexit. However, MPs have been given another opportunity to hold the government to account over Brexit – and they should use it wisely.