Richard Parry gives some perspectives on what seemed like the downtime of the political drama now reignited by a strong Scottish court ruling against the UK Government.
The prorogation of the UK Parliament is complex ceremony, rather like the State Opening in reverse, with the reading of a Queen’s Speech (by a berobed Leader of the House of Lords) that reviews progress during the session. The one on 9/10 September was also grim. Boycotted by opposition MPs and peers, the Speaker attending under duress, it took place after 1.00 am because the government did not dare let Parliament convene for even one more sitting day for fear of the damage it could do. The unprecedentedly long prorogation includes 16 working days when no major party conference is meeting.
Bad news for Boris Johnson came from Scotland on 11 September after not just an adverse verdict but a withering put down by the judges (so far in a summary opinion only, the full ones being released on 13 September at 12 noon). The Supreme Court is set to resolve the legality of prorogation on 17 September after the appeal division of the Court of Session ruled 3-0 against the UK Government and, after two unsuccessful hearings in Edinburgh and London, supplied the highest court with legal reasoning behind that position.
Opponents of no-deal had unwittingly given the UK Government a strong card – which influenced Lord Doherty in his original judgment - when they voted through amendments to the Northern Ireland (Executive Formation) Act 2019 to require ministers to put to Parliament regular reports – and ‘if, as a result of Parliament standing prorogued or adjourned, an Minister of the Crown cannot comply with the obligations…’ Parliament is to be recalled (s 3(4)). So it was argued that Parliament is not a defenceless victim of prorogation.
The Scottish appeal judges took a more expansive view of the courts’ ability to interpret political motivations and did not hesitate in concluding from the evidence before them that they showed ‘the improper purpose of stymying Parliament’ (the golfing image suggesting the influence of fair play and implicit rules of the game). Whatever the Supreme Court decision, it would be surprising if it gave ministers a free pass to use prorogation unless it can be justified objectively by precedent-set purposes, cynical apologetics to the contrary. And the possibility remains that the Supreme Court may order the immediate recall of Parliament.
The UK Government will also search for room for manoeuvre on what is now the European Union (Withdrawal) (No 2) Act 2019. The Act’s timings were driven by the scheduled meeting of the European Council on 17-18 October. It requires the government to do one of three things by 19 October (a Saturday): propose a Withdrawal Agreement and get it through the Commons; propose no-deal and get it through; or request an extension to 31 January 2020.
A tiny ‘loophole’ (s 1(5)) is that the extension request can be withdrawn or modified if either of the other things are done by 30 October. So time could be bought by not meeting Parliament on the 19th (weekend sittings being very unusual but not impossible), sending the letter, and continuing to work for a deal or no-deal. The Act does not compel Boris to seek an extension at the European Council meeting, and the UK political considerations around the 2019 Act will be understood perfectly by the EU27.
Diplomatic negotiations will centre on the Irish backstop and the much-mooted reversion to what was surely the accepted approach on Northern Ireland for 18 months after the referendum – a distinctive economic status for the province, closer to the Irish Republic, less close to the UK. It was an accident of history that the DUP could get Theresa May over the top for her majority and that she was susceptible to a unionist-friendly interpretation of British-Irish relations. Executing the backstop replacement by 31 October is hard to conceive. Executing it by 31 January with a newly-elected Johnson government not needing DUP support is plausible.
Things continue to be rough day-by-day for Boris Johnson, but a General Election at the end of the year could yet open the Brexit door for him if the conversion of votes into seats goes his way.