How to avoid the elephant trap: what anti-no deal MPs could do this week

This blog was first published on 2nd September over at Medium.com.

It has since been taken over by events including the enactment of the European Union (Withdrawal) (No 2) Act 2019. 

The prorogation of Parliament has been described by many as a constitutional outrage, people have protested (including down the Mall), and it has heightened the tension for when Parliament returns on Tuesday. It’s added to the sense that legislation preventing no deal must be passed this week.

The indications are that if legislation is passed, the government will respond by moving to an election. This can be achieved if 66% of MPs vote in favour of an early general election, or if that does not happen by the government to introduce legislation requiring an election despite the next one only being due in May 2022 under the Fixed-term Parliaments Act 2011. The Government can pitch any election as a “People v Parliament” election, at which the Conservatives occupy much of the ground of the Brexit Party, with Labour and the Liberal Democrats splitting the remain and anti-no deal vote.

The political calculation is that should be Brexit be delayed beyond 31st October, the Brexit Party are likely to come back into play as the Conservatives, and in particular, Boris Johnson will have failed on their pledge to deliver Brexit. In essence, if the backbench rebellion fails, the government can move towards no deal, if it succeeds, the government moves to an election.

If MPs take “control of the order paper” (which means that ordinary procedural rules that give government business precedence over all other business does not apply) they do not have to legislate for no deal, and so fall into this trap.

Parliament is prorogued until the 14th October, because the Northern Ireland (Executive Formation etc) Act 2019 requires that

(1) the government publishes a report on the situation in Northern Ireland (where there is no devolved government and no sitting Assembly) on the 9th October, and then

(2) this report must be debated in both Houses of Parliament within five calendar days. Then further reports need to be published every fourteen-days, with debates five days after publication, this requirement expires on the 18th December.

Importantly, if Parliament is prorogued when any debate under the Act is due, then this 2019 Act requires that under the Meeting of Parliament Act 1797, a new royal proclamation must be issued requiring that Parliament meets on the days required by the Act, and then for the following five days. This new royal proclamation effectively overrides any existing prorogation, as parliament is prorogued until the date set in the new proclamation. The Queen has no discretion over this.

This means, that if MPs are outraged by the prorogation of Parliament until the 14th, when they take control of the order paper, they could legislate to amend the 2019 Act requiring a report sooner than the 9th October and for further reports to published more frequently. This would be a very short Bill, extremely hard to amend or filibuster and could be more likely to pass this week than legislation that seeks to force an extension.

If given the opportunity, it could be argued that a failure to even attempt this would make much of the outrage appear distinctly synthetic, and raise questions about how seriously MPs take their constitutional position.

But in terms of a no-deal Brexit, the effect could be profound. If MPs, once in control of the order paper, continue to take control on future days (as they did earlier this year to pass the Cooper-Boles legislation that required the government to seek an extension in March) then in the extra time they have, they can pass a second piece of legislation to legislate against no deal. The closer to the 31st October this legislation is passed, the harder it would be for the government to seek an election before delivering Brexit. If the legislation failed to pass, then as the Opposition they would benefit politically from the chaos that they say no deal will bring.

Yet, given his speech this morning, it appears that Jeremy Corbyn is willing to walk straight into the elephant trap. It’s not that hard to miss. Which makes you wonder does he really want to stop no deal?

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