12 September 2019

Parliament was officially prorogued on Monday and will return on 14 October, just three days before EU leaders meet for a crunch Brexit summit and little under three weeks before Prime Minister Boris Johnson’s promised EU exit date of the 31 October. On Monday, legislation to force the Prime Minister to request an extension to Article 50, unless the Commons approves either an agreed deal or No Deal before 19 October, received Royal Assent. MPs also rejected his attempt to call a general election for 15 October, which could have allowed him to circumvent the extension Act if he won a majority. This has narrowed Johnson’s options. Unless he manages to agree and pass a deal before 19 October, he will almost certainly face an unpalatable trilemma: ask for an extension (and break his promise); refuse to ask for an extension (and break the law); or resign as Prime Minister. A deal would offer him a way out – but what are the prospects of reaching one that Parliament can support?

Arriving in No 10 back in July, Johnson’s proposal for reaching such a deal was to remove the contentious backstop negotiated under Theresa May completely. Writing to European Council President Donald Tusk later in August, Johnson suggested “alternative ways [to the backstop] of managing the customs and regulatory differences” post-Brexit must be considered, and that the negotiations should turn towards agreeing alternative arrangements to prevent a hard border on the island of Ireland. Yet there was little detail on what such proposals might include at the time.

This week, some details of alternative proposals have emerged, but it seems the UK and the EU are talking at cross purposes. On the UK side, Johnson has held talks with Democratic Unionist Party (DUP) leader, Arlene Foster, regarding the possibility of replacing the backstop with an all-Ireland zone for agri-food products and an enhanced “Stormont lock”, which would allow the Northern Ireland Assembly to have a say in any changes to existing regulatory arrangements. Some commentators have interpreted this as a softening of Johnson’s position, demonstrating his willingness to consider retaining aspects of the backstop.

The EU side appear to agree with this interpretation, with its newly nominated trade Commissioner, Phil Hogan, a member of Leo Varadkar’s Fine Gael party, saying the proposal of an all-Ireland agri-food zone “is certainly a clear indication of divergence between Northern Ireland and the Republic of Ireland, the EU and the rest of the UK. If we can build on that we certainly might get closer to one another in terms of a possible outcome.” However, Hogan added that though there was “movement happening on both sides,” Taoiseach Leo Varadkar was looking to “revisit” the Northern Ireland-only backstop, originally proposed by the EU (and rejected by the UK) in March 2018.

Talk of a Northern Ireland-only backstop as an alternative to the current deal, however, seems difficult to reconcile with the parliamentary arithmetic. As Open Europe’s Dominic Walsh writes in this week’s New Statesman, it is highly likely that such a proposal would be whole-heartedly opposed by the DUP and a number of Conservative MPs – for many, it would arguably be a worse outcome than the existing backstop, as it would mean Northern Ireland would be separated from Great Britain for customs purposes as well as regulations. The core difficulty in striking a deal is, as it has always been, the question of how to develop a mechanism whereby the whole UK can leave the customs union without creating a customs border on the island of Ireland.

It has been argued by some that, as the Government now has no majority anyway, it no longer needs to seek a deal that the DUP could back – and should instead look for support among Labour MPs who are now ready to back the deal. But a Northern Ireland-only backstop would be worse than the current deal for many in this group too; it would give a Conservative majority government the ability to pursue a Canada-style Brexit for Great Britain, which is precisely the opposite of what even Brexit-reconciled Labour MPs want. In theory, Labour MPs might reluctantly support such a deal over No Deal or No Brexit; but with No Deal on 31 October unlikely, and an election around the corner, it is unclear whether they would have an incentive to do so.

To fulfil his promise of leaving on 31 October, Johnson has a strong incentive to find a deal that Parliament can support. It is not clear, however, that reviving the Northern Ireland-only backstop proposal would secure the parliamentary support Johnson requires to pass a deal. Indeed, on most measures, it might be even more difficult to ratify than the previous deal.

News in brief

1. Government publishes “reasonable worst case” No Deal planning assumptions
Last night the Government published an “Operation Yellowhammer” document revealing its reasonable worst case planning assumptions for its No Deal Brexit preparations after a “humble address” motion requesting the document was passed by Parliament on Monday. The Government’s worst-case assumptions include rising food and fuel princes, civil disorder on streets, and disruption to trade with EU member states. The Chancellor of the Duchy of Lancaster, Michael Gove, who is in charge of No Deal planning, said this morning that the assumptions “are produced so Government can make plans and take steps in order to mitigate any of those consequences. And over the course of the last six weeks, this Government has taken considerable steps in order to ensure that, if there is a No Deal scenario, we can leave in the safest and smoothest possible way.”

2. Two members of the Government resign
Two members of the Government have resigned in the last week. The first was Jo Johnson, the Universities Minister and young brother of the Prime Minister, who stepped down last Thursday due to being “torn between family loyalty and the national interest.” The second was Work and Pensions Secretary Amber Rudd, who said she “no longer believe[d] leaving with a deal is the Government’s main objective,” and cited her opposition to the Government’s decision to remove the whip from 21 of her Conservative colleagues. Rudd also resigned the party whip.

Elsewhere, The Speaker of the House of Commons, John Bercow, announcedon Monday that he would stand down as both the speaker and an MP at either the next election or on 31 October, whichever arrives first, adding it would be the “least disruptive and most democratic” option.

Meanwhile, the Chief Whip last night sent letters to the 21 Conservative MPs who were expelled from the party last week after voting against the Government on legislation which sought to force the Prime Minister to request an extension to Article 50. The letters reportedly set out an appeal process available to the group, offering them a way back into the party. However, at least three versions of the letter were sent differing in their welcome tone.

3. Scottish court rules prorogation is unlawful
Yesterday Scotland’s highest court ruled that Prime Minister Boris Johnson’s prorogation of Parliament, which started at the end of business on Monday, was unlawful. The Edinburgh Court of Session, that ruled on the matter, said the decision was “motivated by the improper purpose of stymying Parliament.” The ruling differs from that of the London High Court released on Wednesday that said suspending Parliament was an “inherently political” matter that could not be reviewed by the court. The Supreme Court, which decides legal matter across the UK, will start hearings on the case on Tuesday.

Separately, a Northern Irish court ruled today that prorogation would not undermine agreements between the UK and Irish governments agreed during the peace process.

4. UK agrees trade continuity with six Southern African nations
On Tuesday the Government reached an “agreement in principle” with the South African Customs Union and Mozambique that would allow businesses to continue trading on the preferential terms they currently trade on after Brexit. 0.7% of UK exports in 2017 were to countries covered by the agreement.

5. EU Commission announced nominations for commissioners
Incoming European Commission President, Ursula von der Leyen, announced her nominations for the 26 EU commissioners on Tuesday. Notable nominations include Danish Margrethe Vestager who will remain as the competition commissioner, after taking a tough stance on big tech companies, and Irish Phil Hogan as the trade commissioner, who is an ally of Taoiseach Leo Varadkar. The European Parliament will have to approve the whole College of Commissioners.

Open Europe in the media

Open Europe’s Acting Director, Stephen Booth, told Sky News, “I think it’s nigh on impossible now [to negotiate with the European Union] because what the EU was always going to do was see what happened here in Parliament and Parliament has effectively said we’re not willing to implement the result if the result is No Deal. I think the Prime Minister is right to say to some degree that it is difficult to go into negotiations with the other side if they believe ultimately that you’re not going to leave.”

Dominic Walsh took a further look at the parliamentary obstacles to a Northern Ireland-only backstop in an article for the New Statesman. He writes, “For many MPs, Conservative, DUP and Labour alike, a Northern Ireland-only backstop would not just be a bad deal, but worse than the deal that many of them have already rejected.” Walsh also told TRT, “The opposition parties have made a big gamble. They’ve assumed that by forcing Boris Johnson to break his promise of breaking his promise of leaving the EU by the 31 October, the Conservative Party will then lose votes to the Brexit Party in any election that follows… But the question then is: do the Brexit party actually blame Boris Johnson, or do they blame the MPs who passed this law that tied his hands?”

Pieter Cleppe wrote in the Daily Telegraph, “Although the PM has moved on food checks in the Irish Sea, the EU and the Irish government have not softened their positions; they are still simply repeating that they are open to the idea of going back to the original Northern Ireland-only backstop.” Cleppe also gave evidence to the House of Lords Internal Market Sub-Committee, spoke to Belgian TV Programme De Zevende Dag, and was interviewed by Dutch newspaper Trouw.

Anna Nadibaidze was quoted in La Razon Spanish newspaper saying, “In order for the extension to be granted, [the EU27] will want to know what is the purpose of the extension, whether Boris Johnson is serious about getting a deal and whether he can guarantee this deal will pass Parliament. At the moment the EU thinks that Johnson is not looking for a deal, and is suspicious of making concessions, because he has lost his majority and so any new agreement risks not being ratified by the UK Parliament.”