Cont: Brexit: Now What? 7th heaven...

[ponderingturtle]

I can't see it. It would be a step too far. The civil service, and particularly the Foreign Office would be outraged, especially after the way their guy was sabotaged to get him out of the way. Boris would have made deadly enemies of the people he needs to actually do stuff.

If he's going to buy people off in such an obviously corrupt way he might as well appoint Farage as The Ruler of the Queen's Navyyyy and see how that goes down.

Saw a good article on this today

https://www.independent.co.uk/voices/kim-darroch-trump-uk-ambassador-to-us-email-leak-un-a8996196.html

 

[IanS]

Unless this is a different article than the one I linked a few posts ago, the article only considers whether a new PM can prorogue parliament to achieve a no-deal. It doesn't even attempt to address whether the PM can just let time run its course.

It's not a matter of believing or not believing, the article only considers whether the PM can legally prorogue parliament and comes to the conclusion that he almost certainly can not.

The PM may be compelled to go to the EU and ask for an extension but...

• The EU isn't compelled to grant that request
• The PM isn't compelled to ask for that extension in any particular way
• The PM isn't compelled to accept unconditionally any terms insisted on by the EU. For example, if one of the requirements from the EU is that the UK holds a referendum then that would be against the express wishes of Parliament

Unless you're referring to a completely different article to the one you linked, and the one I re-linked a few pages later, the barrister was only looking at whether the PM could legally prorogue parliament.

That link was already provided many pages ago by Jack by the Hedge.

The default is still a no-deal Brexit.

Again, that article was only considering the question of proroguing parliament.

edited to add a link to the article I think you are referring to:

https://blogs.lse.ac.uk/brexit/2019...rogue-parliament-to-deliver-a-no-deal-brexit/

from that article :

See ? It's about proroguing Parliament.

and the article's conclusion ?

Again, it only considered the question of proroguing Parliament.

OK, well you have asked me that at least twice before, ie asking about the fact that the linked article is talking largely about Proroguing parliament. And I have actually explained that at least 3 times here already.

The simple answer is that if you read the article carefully, the reason why the author is concentrating on what was actually a threat issued issued by Dominic Raab when he apparently said (during the PM-leadership voting, before he was eliminated) that he would Prorogue parliament if that was necessary to get a No Deal Brexit, is because what the author/barrister is saying is that all the other threatened options of forcing a No Deal exit actually reduce down to the need to prorouge parliament.

Just to clarify that – for example; PM-Boris could not simply force a No Deal exit either by trying to stop all opposition votes in the HoC, or by refusing to abide by any vote in which the House rejects any form of No Deal exit (he explains that in the article, and I will try to explain what he says below), so that Boris or any PM would be left with trying to Prorouge parliament as his only remaining option. But, what the barrister says in the article is that, that attempt almost certainly would not work either and would be ruled illegal.

I hope that's clear so far. And please note that what I just explained is exactly what I have said to you already in every reply that I have made here.

OK, so where in the article does it say that? The answer is that it's slightly difficult to tease out from his various paragraphs, because he goes succesively through each possible option in the fashion of saying “ if the PM tries X, then the result would be Y, BUT that would result in Z, and that would mean A, except for the fact that B would then occur first!”. So the article is arranged a string of legal if's & buts before he gets to the final result/punchline.

So he begins like this (it's a quote of what he says) -


“Further, it was stated by the majority in*Miller*that*the court could not accept that ‘a major change to UK constitutional arrangements can be achieved by ministers alone’. Parliament should be consulted on significant constitutional changes. Given that, by effect of Article 50, the UK will automatically leave the EU on 31 October, the government’s failure to stop it will create a substantial constitutional change by default.”

Now directly after that above quote the author warns that the above may not be effective because of the following -


“*I do not think this argument is as strong in this case as it was in*Miller, however, because it begs the obvious response that Parliament sanctioned the serving of a notice under Article 50 in the European Union (Notification of Withdrawal) Act 2017 in the full knowledge of the effect of Article 50. There has not been any subsequent Act of Parliament suggesting that the position has changed on that point.”


But then against that he adds the following observation -


“Both Houses of Parliament have expressed the view that a “no deal” Brexit should not be permitted. Parliament has exercised control over the process of Brexit so as to ensure a “no deal” Brexit is avoided. It will likely seek to do so again in October. The act of advising the Queen to prorogue Parliament before (and across) 31 October would have the effect of excluding Parliament from the Brexit process.”


In the above quote the author is saying that the HoC will likley attempt to vote again to rule a No Deal exit, and the attempt by any PM to block that by asking the Queen to prorouge parliament "would have the effect of excluding Parliament from the Brexit process"
And upon that point of a PM attempting to "exclude parliament from the Brexit process" he continues by saying the following -


“ Parliament’s democratic mandate is fundamental to the UK constitution. In Sir Jeffrey Jowell QC’s words, Parliamentary sovereignty “is the stone upon which our Constitution is not writ”. The government holds office because it is able to command a majority in the House of Commons. The Commons hold office because they hold a mandate from those they represent. Legitimacy flows upwards from the electorate. As Lord Hope of Craighead put it in*Jackson v Attorney General [2005] UKHL 56*(pdf) at 126:

It must never be forgotten that this rule [of recognition] … depends upon the legislature maintaining the trust of the electorate. In a democracy the need of the elected members to maintain this trust is a vitally important safeguard. The principle of parliamentary sovereignty… is built upon the assumption that Parliament represents the people whom it exists to serve.”
In the light of this, it seems absurd to suggest that the Prime Minister has the power to advise the Queen to take an action that would exclude Parliament from expressing its view (and potentially exercising its power to control the actions of the government) in relation to the most significant constitutional matter in a generation.

Similarly, given the democratic basis of the constitution, and parliament’s fundamental position in that, it seems very difficult to argue that the Queen’s prerogative power extends to proroguing Parliament so as to silence Parliament in relation to a major constitutional issue.”


OK, so that was a long set of quotes, but what he is concluding there is the following - if a PM attempts to force a No Deal Brexit against the express voted will of the HoC, then his only option would be to ask the Queen to prorogue parliament. But he says that will not work for the PM either, because apart from it being very unlikely that the Queen would ever be advised to agree to that, it would also be ruled unconstitutinal in law.


And then he explains that further as follows -


“ It may be argued that, although Parliament has, in the past, indicated that it opposes a “no deal” Brexit, it is not for the courts to read such an intention into the future. In the*European Union (Withdrawal) (No. 5) Act 2019*Parliament, in effect, ordered the Prime Minister to seek an extension to the Article 50 TFEU process so as to avoid a “no deal” Brexit on 12 April. Similarly, various motions all related to 29 March or 12 April. The order in the 2019 Act only mandated a single action.*

It might be argued that, while Parliament ruled out a “no deal” Brexit in April, it has not done so indefinitely. The statements of various MPs do not carry the same weight as an Act of Parliament. Indeed, as Maddy Thimont Jack has pointed out,*at the Institute for Government, it is not clear that Parliament will be able to take the same approach to a “no deal” Brexit in October as it took in March and April."


Now, that quote directly above may look as if the mere act of the HoC voting to rule out any No Deal exist, could not be indefinitely biding on the next PM. However, he then explains why it probably will be binding on the PM if the HoC now takes that same vote and again agrees to rule out a No Deal exit ... so here is what he then concludes about that sort of objection raised by Maddy Thinmont Jack or others -


"Such an argument, however, seems rather semantic. The core of the issue is the exclusion of Parliament from a matter of historic constitutional importance. The harm at which a review would take aim is not simply the frustration of Parliament’s will, but the fact that Parliament will be prevented from establishing a position at all.”



In all of the above quotes, what the barrister is saying, is that the only legal route which the PM has if he tries to prevent the HoC voting to rule out a No Deal, is actually to ask the Queen to Prorogue parliament. But he says that will actually not work either, because that can, and probably will, not actually be within the legal power of even the Queen in this specific issue of Brexit.

The point that is being made, is that the PM cannot exclude votes in the HoC except by getting the Queen to Prorogue parliament, but he explains why even that will not actually be legal … so the result will be that the PM must allow HoC to take a vote on ruling out a No Deal exit. If that vote is passed, then as he just explained in the quotes above, the PM will in effect be legally forced to return to the EU asking for an extension to A50. The PM cannot refuse to do that … because as the article repeatedly explains, the bottom line here in law (already tested and in place), is that any PM is legally bound by the democratically expressed voted will of the HoC.

In other words – the PM can only prevent that vote in the HoC by getting the Queen to prorogue parliament. But that will actually be overruled in law. So he has no option except to allow a vote in which the HoC can vote against allowing any form of No Deal exit … and if the HoC does take that vote to rule out a No Deal exit, then in the absence of the House agreein any other sort of Brexit deal, the PM will be legally forced (as Mrs May was) to go back to the EU asking for a time extension to A50.

 

[ponderingturtle]

In all of the above quotes, what the barrister is saying, is that the only legal route which the PM has if he tries to prevent the HoC voting to rule out a No Deal, is actually to ask the Queen to Prorogue parliament. But he says that will actually not work either, because that can, and probably will, not actually be within the legal power of even the Queen in this specific issue of Brexit.

And has been pointed out repeatedly voting against no deal does nothing, they can vote against it a hundred times and that will mean nothing to Boris. They need to vote for something, and the only thing they have agreed on is kicking the can down the road. And there seems to be no significant support for anything that would actually lead to some conclusion other than no deal.

Boiled down there are 3 results, no deal, the deal, and no brexit. All of those have been soundly defeated repeatedly. So as no deal is the only one that doesn't need any kind of voting success to achieve it seems pretty inevitable no matter how they vote.

 

[P.J. Denyer]

You get the strong impression he hasn't been paying attention too hard the last few months, and isn't really quite sure what an "Irish backstop" really is...something footballish?

Sex position. Definitely thinks it's a sex position.

 

[IanS]

And has been pointed out repeatedly voting against no deal does nothing, they can vote against it a hundred times and that will mean nothing to Boris. They need to vote for something, and the only thing they have agreed on is kicking the can down the road. And there seems to be no significant support for anything that would actually lead to some conclusion other than no deal.

Boiled down there are 3 results, no deal, the deal, and no brexit. All of those have been soundly defeated repeatedly. So as no deal is the only one that doesn't need any kind of voting success to achieve it seems pretty inevitable no matter how they vote.

OK, well you are obviously not paying attention and just saying the first thing that comes into your head.

 

[Andy_Ross]

Garage is an opportunist. He will take any scraps Boris throws him.

Farage of course!

 

[The Moog]

Brexit trade talks with Liam Fox cancelled amid mounting fury over leaked Trump memos
Perhaps if the UK tries begging next?
Believing really hard seems to have failed.

 

[abaddon]

Brexit trade talks with Liam Fox cancelled amid mounting fury over leaked Trump memos
Perhaps if the UK tries begging next?
Believing really hard seems to have failed.

All hope is not lost. You could convene parliament at stonehenge and sacrifice a virgin. That might help.

 

[McHrozni]

Well there are differences between the Corbyn position and the May position on Brexit specifically:

• Corbyn is more willing to be bound by EU rules - specifically those relating to employee protections
• Corbyn wants to be in a Customs Union whereas May and the Conservatives have specifically ruled it out
• Corbyn is more willing to be bound by the European courts

Despite those apparent considerable differences, because Labour insists on the ability to negotiate trade deals and to heavily subsidise industries then Customs Union membership is a pipe dream.

Corbyn might be more open to a customs border in the Irish sea though. His proposals are fantasy, but it is possible to make a different deal with the EU, if you can convince them to reopen negotiations somehow.

This will be a tall order, but a specific change to the Irish backstop so that it applies only to Northern Ireland was offered when WA was first rejected by Parliament. That's probably still possible today, if there's a new GE and Corbyn becomes PM. The rest of UK wouldn't be in the customs union, but an extensive free trade agreement could be reached in record time - there are no barriers to eliminate, the two sides must simply agree which new barriers are not to be erected in the future.

Plus Corbyn promised a referendum, offering the country a choice between his deal and no Brexit. Had Labour offered that three years ago, Corbyn would be PM and this whole Brexit charade would be over by now - one way or the other.

Alas, he's grossly incompetent.

McHrozni

 

[The Don]

OK, well you are obviously not paying attention and just saying the first thing that comes into your head.

As your own quotes from the article demonstrate, the focus of the article was whether a Prime Minister could prorogue Parliament as a means of preventing a "no no deal" vote. The conclusion that that author reaches is no, he can not.

What I've been trying to explain is that the PM doesn't have to prevent a "no no deal" vote because unless that vote also includes an alternative course of action and/or a change to the default course of action, it's meaningless.

Attempting to change the default to a second referendum, approval of the withdrawal agreement or revocation of article 50 would cause the bill to fail. It is possible (though still a long shot IMO) that MPs may vote to require the new PM to ask for an extension but that's not really a solution because:

• In the absence of a clear indication of a way forwards, the EU may simply refuse
• The EU may accept but attach conditions which would be unacceptable to the majority of MPs
• The Prime Minister could request the extension in a way which makes it very difficult for the EU to agree to it
• Even if an extension is granted, it's not clear that we won't be in exactly the same situation at the end of the extension

 

[The Don]

Farage of course!

I thought that was deliberate

Garage - An echoing void sometimes full of noxious fumes.

 

[McHrozni]

As your own quotes from the article demonstrate, the focus of the article was whether a Prime Minister could prorogue Parliament as a means of preventing a "no no deal" vote. The conclusion that that author reaches is no, he can not.

What I've been trying to explain is that the PM doesn't have to prevent a "no no deal" vote because unless that vote also includes an alternative course of action and/or a change to the default course of action, it's meaningless.

Attempting to change the default to a second referendum, approval of the withdrawal agreement or revocation of article 50 would cause the bill to fail. It is possible (though still a long shot IMO) that MPs may vote to require the new PM to ask for an extension but that's not really a solution because:

• In the absence of a clear indication of a way forwards, the EU may simply refuse
• The EU may accept but attach conditions which would be unacceptable to the majority of MPs
• The Prime Minister could request the extension in a way which makes it very difficult for the EU to agree to it
• Even if an extension is granted, it's not clear that we won't be in exactly the same situation at the end of the extension

Don't worry about the last point. EU will not grant another extension without a promise of another referendum or some other resolution to the Brexit impasse.

For those just tuning in, I think they'll again go for a two-tiered extension. Two weeks without preconditions, if Parliament uses those two weeks to either pass the WA or legislates for a referendum it can have another four months or so.

McHrozni

 

[The Don]

Don't worry about the last point. EU will not grant another extension without a promise of another referendum or some other resolution to the Brexit impasse.

For those just tuning in, I think they'll again go for a two-tiered extension. Two weeks without preconditions, if Parliament uses those two weeks to either pass the WA or legislates for a referendum it can have another four months or so.

McHrozni

IMO if you're right and the EU do insist on preconditions for some or all of the extension, then Parliament will decline the portion of the extension that requires them and then waste whatever time is available on bickering and failing to come to an agreement on a positive course of action.

 

[McHrozni]

IMO if you're right and the EU do insist on preconditions for some or all of the extension, then Parliament will decline the portion of the extension that requires them and then waste whatever time is available on bickering and failing to come to an agreement on a positive course of action.

Possible. That would be the nightmare scenario, EU would get additional bad press in Britain with nothing to show for it. On the other hand it would also force Parliament to choose between two positive actions: Referendum (or WA) on one side and a no deal Brexit on the other.

Parliament might pretend that was not the case, but few indeed would buy it. MPs who did everything they could to keep jobs, up to an including sacrificing the nation for their personal gain, would stand to lose jobs soon.

Sometimes I wish the more arcane penalties would still be available. The traditional English penalty for high treason would be appropriate for any MP that advocates a no deal Brexit.

McHrozni

 

[Dave Rogers]

Sometimes I wish the more arcane penalties would still be available. The traditional English penalty for high treason would be appropriate for any MP that advocates a no deal Brexit.

The problem with that is that there are probably more people more vocally and less satirically in favour of imposing it on anyone who doesn't advocate a no-deal Brexit.

Dave

 

[McHrozni]

The problem with that is that there are probably more people more vocally and less satirically in favour of imposing it on anyone who doesn't advocate a no-deal Brexit.

Dave

One of the problems, yes. European decleration of human rights is another, but a no-deal Brexit solves that.

McHrozni

 

[Vixen]

Corbyn might be more open to a customs border in the Irish sea though. His proposals are fantasy, but it is possible to make a different deal with the EU, if you can convince them to reopen negotiations somehow.

This will be a tall order, but a specific change to the Irish backstop so that it applies only to Northern Ireland was offered when WA was first rejected by Parliament. That's probably still possible today, if there's a new GE and Corbyn becomes PM. The rest of UK wouldn't be in the customs union, but an extensive free trade agreement could be reached in record time - there are no barriers to eliminate, the two sides must simply agree which new barriers are not to be erected in the future.

Plus Corbyn promised a referendum, offering the country a choice between his deal and no Brexit. Had Labour offered that three years ago, Corbyn would be PM and this whole Brexit charade would be over by now - one way or the other.

Alas, he's grossly incompetent.

McHrozni

Different time, different context. A week is a long time in politics. Timing is all. The VONC's failed because the timing was off.

May's snap GE was a disaster because she misread the trends.


Politics is an art so what might have been true even one day ago has now changed.

 

[ponderingturtle]

IMO if you're right and the EU do insist on preconditions for some or all of the extension, then Parliament will decline the portion of the extension that requires them and then waste whatever time is available on bickering and failing to come to an agreement on a positive course of action.

Why wouldn't the EU want to do something to get some kind of end to this instead of continually kicking it down the road? How do you propose they make the UK "**** or get off the pot".

 

[catsmate]

Yeah, the first time we were there, in the October, a waiter recommended avoiding July or August. The next time, Mrs Analyst booked without checking with me - end of July, beginning of August. "How hot can it be?!" she said. Stepping of the 'plane was like walking into an oven.

Yeah, I was there in early August. Never again.

 

[catsmate]

<> I post facts. <>

Nope.