25 September 2019

While MPs will be tempted to spend their extra parliamentary time embarrassing the government, Jill Rutter argues that a better use of the Supreme Court outcome would be proper scrutiny of the government’s Brexit’s plans.

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?

MPs need to undertake forensic scrutiny of the government’s no-deal Brexit plans

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”. 

Parliament should focus on how the government plans to deal with no deal in Northern Ireland

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.

MPs should also test the government’s negotiating strategy

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.

MPs could consider whether they need to legislate to make the Benn Act watertight

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.

But nothing the Supreme Court has done changes the fundamentals on Brexit

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.


Is it possible for parliament to pass legislation that would change the 31st October default from no deal to remain/extend/revoke?

The role of the opposition includes holding the government to account. It is for the leader of HM Official Opposition, ie. Jeremy Corbyn to call a vote of no confidence in the government when it is clear that they have lost the confidence of the House.

The government had lost (and then thrown away) its majority even before the Supreme Court ruled that it had acted in breach of the law, and a vote of no confidence is overdue. While others can call it, there is no obligation on the Leader of the House to make time for it unless it is moved by the leader of HMOO.

Unless this is done this week, time will run out as government is likely to prorogue parliament again (legally, this time, it is to be hoped) this weekend. It is possible that the Queen's Speech will not now be on 14th October, it may be postponed to 21st October. In either case, once parliament returns there will be limited time for an alternative government to be formed which could submit the application for a further extension* before the Article 50 period expires at the of October.

If opposition parties (including crucially the newly independent Conservatives) fail to agree on an alternative leader before the vote of no confidence is called, there is a risk that there will be no such agreement during the two-week grace period provided by the FTPA, in which case a general election will result (without the need for a two-thirds majority).

So, assuming a vote is eventually called, it is likely that the government would lose (they now have a "majority" of minus 45). The choice for the leader of the official opposition would be whether to agree to supporting an alternative PM, since he would not be able to command a majority in the House himself, or to allow Boris Johnson to remain as Prime Minister after the vote until an election is held, This would give Mr Johnson time to steer through a "no deal" Brexit, having suspended the Benn Act by Order of Council, and then to advise the Queen on the date for the election.

Note*: this post assumes in the light of the PM's letter to M Juncker on 2nd October that it will not now be possible to reach a deal with the EU27 on the terms of exit (and the framework for a future relationship) which can secure a majority in the House of Commons.