What has happened?
- The House of Commons last night rejected a second attempt by Boris Johnson to force an early general election on 15 October. MPs voted by 293 to 46 in favour of the motion, with the majority of opposition MPs abstaining. This falls well short of the 2/3 majority (434 MPs) necessary under the terms of the Fixed Term Parliament Act.
- During the debate, Johnson indicated on several occasions that despite the extension bill receiving Royal Ascent - formally going onto the statute book as the EU Withdrawal (No. 6) Act – he would not seek another extension under any circumstances.
- The vote took place late into the night following a packed day of action in the Commons ahead of prorogation coming into effect in the early hours of the morning, although the ceremony was boycotted by the opposition amid ill-tempered scenes.
- Earlier in the day, Speaker John Bercow, who has played a crucial role in facilitating Tory rebels and opposition MPs frustrating the Government’s Brexit policy, unexpectedly announced he would be stepping down on 31 October, with his successor chosen by the current assortment of MPs.
- This means that he will be in place to oversee the run-up to any possible no deal push by the Government, were they to attempt to ignore the extension law now in place.
- Bercow also allowed an emergency debate on the Government’s decision to prorogue Parliament and its no deal preparations. MPs voted by 311 to 302 to compel the Prime Minister’s chief adviser Dominic Cummings and several other advisors and civil servants to release any documents and communications, including private communications, pertaining to these issues. However, the Government has already indicated that it would not comply, and the order may ultimately prove impossible to enforce.
- In a second emergency debate concerning the Government’s approach to the rule of law, MPs from across the House called on the Government to adhere to the extension legislation. Responding for the Government, Foreign Secretary Dominic Raab said that while the question of how the rule of law is respected is normally straightforward, sometimes it can be more complex due to conflicting laws and legal advice.
- Earlier in the day, Johnson belatedly met Irish Taoiseach Leo Varadkar in person in order to discuss the question of the Irish backstop. Having previously called for it to be completely scrapped, Johnson again hinted that his preference was for a pared-back backstop focusing on all-Ireland rules for food and agriculture regulation.
- However, Varadkar responded that such a backstop would be too narrow in scope and added that “What we cannot do, and will not do, is replace a legal guarantee with a promise.”
- Separately, European Commission President elect Ursula von der Leyen will appoint Phil Hogan, Ireland's European Commission nominee, as the EU's chief trade negotiator, making him responsible for overseeing any future trade talks with the UK.
What does it mean?
- The combination of prorogation and the failure of the motion in favour of an early election to muster sufficient support means that an election before 31 October is now highly unlikely, due to the requirement for a minimum campaign period of 25 working days.
- The only way for this to happen would be for Parliament to be recalled from prorogation within the next couple of weeks, and for MPs to then either endorse an election by a 2/3 majority or to find an alternative way of forcing an election, e.g. via a standalone bill.
- This in turn means that the next election is most likely to take place in late November or early December, be that in the context of an extension, a deal or no deal.
- Johnson and his Government now face a momentous choice. They have insisted that a) they will not seek a further extension, b) that Johnson will not be resigning and c) that they will obey the law. Come 19 October, it may prove impossible to meet all three commitments.
- The Government are either bluffing, and will ultimately seek an extension as mandated, or they are going for a fully confrontational approach in the expectation they will either face an immediate Court challenge, or a vote of confidence from MPs.
- If the Government decides on the latter approach, being seen to be standing up for the Brexit in the face of an hostile political and judicial establishment – as Brexiteers would characterise it – would then give Johnson the platform he wants to run a highly populist election campaign.
- Meanwhile, Johnson’s trip to Dublin indicates that the Government’s hopes of securing a deal at the 17-18 European Council summit are not completely dead. Johnson has already shifted in terms of his insistence the backstop be removed altogether in favour of a narrower focus, and the UK could use the prorogation period to further flesh out these proposals. That said, it remains hard to see the UK identifying an alternative sufficiently comprehensive to allow Ireland to drop its insistence on the backstop entirely, and a deal therefore remains a relatively less likely prospect at this stage.
- The appointment of Hogan as the EU’s Trade Commissioner is also a strong sign of intent from the EU that the Irish border is an issue that will need to be resolved under any and all circumstances, and that Ireland will continue to have a crucial role in determining the future UK-EU relationship.
What happens next?
- Legal action against the Government’s prorogation decision continues, including an appeal in the Scottish case initiated by Joanna Cherry MP and the appeal in the Gina Miller case at the Supreme Court on 17 September.
- Unless the prorogation is curtailed, MPs will return on 14 October for the Queen’s Speech.
- Discussion between the UK and the EU will continue in the run-up to the EU summit on 17-18 October. As per the terms of the extension legislation, if the Prime Minister has not agreed a new deal 19 October, and neither has parliament consented to no deal, he is obliged to seek a three-month extension until 31 January 2020.
