BREXIT – JOHNSON BREAKS THE LAW….AND THEN WHAT?

The fallout from the extraordinary judgement of the UK Supreme Court will dominate the headlines. The Court has ruled that PM Johnson acted unlawfully in advising The Queen to prorogue parliament for 5 weeks, and that effectively that prorogation has not happened. It will be a very lively time, with the focus on the battle between Parliament and Government. It is a momentous, historic decision. But it does not change underlying Brexit truths.

Ireland – Moves towards a Solution?

In the run-up to the Supreme Court judgement, there was speculation that the UK government was, belatedly, engaging with proposals to solve the problem of the Irish border. Nothing formal was tabled but we were assured that ideas were being discussed; and the Commission circulated “non-papers” in response to some of them. From what we could see, these ideas would allow for a different regulatory regime in Northern Ireland from the rest of the UK. So they would effectively re-create, to some degree, the original EU proposal for a Northern Ireland-only backstop. How that would be policed and managed is unclear. But if the concept of some kind of special status for Northern Ireland gains ground, we need to look again at what that implies.

Is it negotiable?

Is such a concept negotiable at all with the EU, let alone in time to allow the UK to leave on 31 October? Assuming, for now, that there is real political will on both sides to do so, the biggest challenge will lie in fitting any new UK-built structure into the framework of EU law. Time and again during the Brexit negotiations we have seen the mismatch between the UK’s and the EU’s approaches to EU legislation. The UK sees the Northern Ireland issue mainly as a practical one: what are the problems for cross border trade when the UK leaves?  And what processes and procedures are needed to minimise them? The EU starts from what the Treaties, and EU law, require; and considers what may be possible within that.  This tension between what one might call the common law and Napoleonic Code approaches has always been there in the UK’s membership of the EU. I experienced it at first hand in the early 1990s when negotiating for the UK the post-Maastricht directives on the right to vote and stand in EU and local elections. When it contributes to the EU’s legislative process, the UK’s pragmatism and common-sense approach has helped produce better laws. But it is a different matter for the UK – as, effectively, a third country – to try to get the EU to compromise fundamental principles of EU law to suit the UK’s convenience. Any new proposal has to be legally enforceable – not, as the Irish Deputy PM has commented, just a “promise” – which gives rise to the question “under whose jurisdiction”? There are a lot of questions still to answer.

Would Parliament vote for it?

Even if the UK and EU can agree on some new solution – a special economic zone; or enhanced “alternative arrangements” with guarantees of continued regulatory alignment – could PM Johnson get it through Parliament? It was already hard to see how, even before the disastrous Court ruling against him. A “special status” for Northern Ireland which included any serious undertakings on regulatory alignment would involve recognising, at least to some degree, the validity of EU legislation and hence the competence of the ECJ. It would fall foul of the talismanic promise to “take back control of our laws”, and imply a “border in the Irish Sea”, an anathema which Theresa May herself said no British PM could accept. So Johnson, with his reputation looking increasingly tattered,  could risk losing some pro-Brexit support in the House; and that at a time when he has lost his slender majority (which depended on the DUP), after he expelled 21 Conservative MPs for voting to prevent a “No-Deal Brexit”. Some of the latter might just vote for a Johnson deal rather than risk more uncertainty. But, in any case, to get any deal through the House of Commons Johnson would need not only all the Tory and DUP votes he can muster but a significant number of Labour and/or other opposition party votes too. The Labour Party’s Brexit policy remains in disarray despite the Party Conference decision. But the mood of the parliamentary party is increasingly firmly anti-Brexit and it is hard to imagine more than a couple of die-hard Labour Leavers voting in favour of a Johnson deal. The Liberal Democrats’ controversial decision to advocate revoking the Article 50 notice means they will not compromise, any more than will the Greens or the SNP. It is very difficult to see where the votes would come from to pass any new deal.

So what next?…

If Johnson were to agree a deal with the EU but couldn’t get a majority in parliament, what then? It seems inevitable that there would have to be a general election; and that the UK Government would have to ask for an extension to the Article 50 period in order to hold it. That looks even more likely after the Court verdict but, as with everything else Brexit-related, neither of those propositions is straightforward.  The UK’s Fixed Term Parliaments Act limits the circumstances in which a general election can be held early: either Parliament has to vote for it by a 2/3 majority or there has to be a vote of no confidence in the government, which the government loses.  Labour and other opposition parties have made clear they would not vote for a dissolution unless and until an extension was agreed. Johnson has said he will never ask for an extension; though the so-called Benn Act, designed to avoid the UK falling out of the EU without a deal, would require him to do so in these circumstances. And of course the EU has to agree to any extension of Article 50. So the choreography could be tricky.

A general election and…

The result of a general election held in these circumstances is impossible to predict. Jeremy Corbyn’s popularity ratings are at historic lows for an opposition leader and the Conservatives have leads of varying sizes over Labour in all recent polls. Set against that, some voters would certainly balk at voting for Johnson after the Court findings; and the Tories would probably be savaged in Scotland by the SNP; and damaged by resurgent Liberal Democrats and a Brexit party re-energised by Leaver frustration. You would be rash to bet against another hung Parliament; in which case there could be renewed pressure for a second referendum. And that would be unlikely to be much more conclusive either way than the last, despite polls suggesting a majority now in favour of Remain.

Afterthought on the UK Union

A final thought on what a deal based on special status for Northern Ireland might lead to, prompted by watching Ireland play Scotland in the first round of the Rugby World Cup. The Irish team – currently led by an Ulsterman – represents the whole island and includes players from north and south of the border. Their anthem talks about standing shoulder to shoulder and answering Ireland’s call. The Scottish anthem glorifies their proud victory against the English at the battle of Bannockburn in 1314 and calls on Scots to rise up and be that nation again. If, after Brexit , we end up with a reunited Ireland and an independent Scotland we should remember that those are both historical realities; and that, to quote both Mark Twain and Margaret Atwood, while history may not repeat itself, it does rhyme.

 

Martin Hatfull