Sticks and stones may break my bones, but focus grouped words...

The badge of the Downing St Misdirection Unit

I'm looking for a surrender.

On Friday night's Any Questions on Radio 4 Nadhim Zahawi MP spoke from the standard script of the moment. Health secretary Matt Hancock and Paul Scully, the Conservative party's deputy chair, came out on Sunday and used identical terms. The European Union (Withdrawal) (No. 2) Act 2019 must be called not the Benn Act, which is an obvious short name (remember the Brady amendment?) but the Surrender Act "because that's what it is".

The phrase has caught on - indeed it's been focus grouped, polished and pumped out non-stop - and is picked up by Brexiters known and unknown. Every time it's rejected or contradicted (and this post will be guilty of the same) it's reinforced in the public mind. So Andy Burnham tells Sky News "the ‘take no prisoners’ approach to Brexit is ‘unnerving people...ratcheting up the atmosphere’" and Matthew d'Ancona includes it as one of many examples in his long read about "the new network politics of the Right".

It's easy to throw two words round, but there is occasionally a whole argument that goes with them - that "the EU" will not negotiate seriously if they think No Deal has been "taken off the table". The script demands that the Act's workings are exaggerated - it actually only prevents exit without a withdrawal agreement on 31 October, by means of a request for extension of the Article 50 process to 31 January - and that its effect is presented as absolute. And many angry voices tell us this whenever they can.

The moment at which Johnson tells Paula Sherriff that her appeal
for more moderate language is "humbug".

But where is this effect? When Zahawi addressed the second question on Any Questions he was suddenly telling us about all the progress the UK negotiators are making. Again, it's a standard script, as reeled off by Johnson himself on Wednesday (the first day in the Commons we had the Supreme Court to thank for - he planned to be free of  scrutiny until at least 14 October):

"Some 64 days ago, I was told that Brussels would never reopen the withdrawal agreement; we are now discussing a reopened withdrawal agreement in the negotiations. I was told that Brussels would never consider alternatives to the backstop - the trap that keeps the UK effectively in the EU but with no say; we are now discussing those alternatives in the negotiations. I was told that Brussels would never consider arrangements that were not permanent; we are now discussing in the negotiations an arrangement that works on the principle of consent and is not permanent. I was told that there was no chance of a new deal, but we are discussing a new deal, in spite of the best efforts of the Labour party and this Parliament to wreck our negotiations by their attempts to take no deal off the table."

"In spite of.." eh? You mean the best efforts of Labour and Parliament - including the famous Act - have failed to prevent progress? The misdirection campaign doesn't need to bear any resemblance to the facts, so long as it's loud and consistent. What is it supposed to achieve? Togetherness among d'Ancona's "networked right", suspicion building to hate, readiness for a "People v Parliament" election, but obviously not violence, though that would be quite understandable, you know. As Johnson's top adviser Dominic Cummings told Karl Turner MP, if you want to avoid death threats "get Brexit done".

****

Brexit Secretary Stephen Barclay: "There's a long way to go".

That same Friday, DExEU secretary Stephen Barclay told the media "The UK government is planning to put out 'concrete proposals' next week for reaching a Brexit deal with the EU". The idea is to take them over after the Conservative party conference - after gaining the full support of the Tory faithful, or for fear that the membership would cause trouble in Manchester if they knew the plans? Assume that Barnier sees these proposals  on Thursday 3 October, just four weeks before the current Brexit day, and hope that, for a change, the documents can actually be seen by the 27 other members, and maybe even some real people outside or inside London, rich or poor, pro- or anti-Brexit.

Yet actual letters exchanged between Barclay and Michel Barnier before the talks the minister had just returned from tell a different story. Barclay signals that the UK is not ready for leaving with no deal - there are subjects which should be "explore[d] jointly" to make it "work". Things like "how we maintain the flow of trade in goods and passengers at points of entry/exit... exchange of data [and] citizens rights" need joint work, and it really would be nice if the member states relaxed their refusal to engage in "bilateral discussions". Barnier's response is basically "No":

"As we mentioned in previous letters to you and your predecessors, we believe that the Withdrawal Agreement is the best way to protect citizens and business. Every issue raised in your letter... has already been addressed comprehensively in the Withdrawal Agreement. There is no other way to achieve all the benefits that the Withdrawal Agreement provides."

The same reports which gave us Barclay's positive slant included the European Commission's response, which sounded rather familiar: "Mr Barnier had stressed to Mr Barclay during the meeting that it was 'essential' there was a 'fully operational solution in the withdrawal agreement to avoid a hard border on the island of Ireland, protect the all-island economy and the integrity of the single market'. The EU remains open and willing to examine any workable and legally operative proposals that meet all these objectives".

So what is actually preventing progress? Is it a piece of "remainer" legislation (passed by MPs many of whom have voted for Brexit and would do again, if there was a deal), or is it Johnson's refusal to make any kind of proposal? Strangely all the British reports from negotiations are upbeat (if a little "inventive"). No mention of the EU suddenly refusing to talk after that terrible Act became law on 9 September.

RTE's Tony Connelly, one of the best commentators on this whole sorry mess, gives us a different view, based on actual evidence of talking to the people involved: "The appetite for the EU to be flexible on the backstop has been intimately linked with Johnson’s ability to get the agreement through parliament. If there’s no prospect of that, there’s no reason to be flexible".

Today, Sunday 29 September 2019, Boris Johnson has been prime minister for 67 days, and MPs and peers have actually been in what John Bercow pointedly called their "place of work" when they returned from unlawful suspension for nine of those days.

Johnson has still not demonstrated a majority in the Commons. Indeed, he has lost every significant vote in his prime ministerial career.

And if you wondered, "ecce illic" is a Google-aided Latin motto which loosely translates as "Look over there!".

He's not very good at this, is he?

It's hard to get an angle on what's going on at the moment, so let's start with the version that's least likely to be true, the gospel according to Saint Boris, and work out from there.

****

The Conservative party contrived to run a leadership election which delivered its verdict in July, two days before the Commons was due to close down for summer holiday. Before that, however, they fitted in a pantomime of three acts:

• On the Wednesday the then incumbent took an official car with a full set of outriders to the Palace, then left there after an appropriately brief termination interview to be whisked away to her home in Maidenhead (or the pub round the corner - the helicopter didn't follow her far) with fewer outriders.
• After a standard phone tip-off (or something more modern, but somehow I doubt it) the new boy then set off from Number 10 with the full cavalcade and returned to deliver a rambling campaign speech to the world's press in Downing St.
• On the Thursday he found his way to the Commons. He didn't mention a Queen's speech or a majority, but he launched into a speech shot through with his trade mark groundless "optimism": "By 2050, it is more than possible that the United Kingdom will be the greatest and most prosperous economy in Europe". 

I was watching for something about a Queen's speech and a majority because I'd been asking questions throughout the leadership contest - pointlessly on Twitter, and very, very slightly less pointlessly by directing them at TV programmes who promised to "ask the candidates". He might have supplied the information to various audiences, but I wasn't in any of them.

Before Johnson spoke the new Leader of the House of Commons, Jacob Rees-Mogg, outlined the next week's business (a next week which would occur in September) and sparred with his opposite number Valerie Vaz for the first time. Again, you can read the Hansard account if you want (I'd advise just the top couple of exchanges).

She asked: "What is going on with the conference recess? Is proroguing still on the menu? Can he rule that out? We know that the Prime Minister gave a mini manifesto on the steps of Downing Street. When will we have a new Session of Parliament?". And he replied, "She knows that recesses are a matter for this House to determine. No doubt a proposal will be made through the usual channels, but I imagine that it would be convenient for Members to be able to attend their own party conferences. That is what has happened previously, and it tends to be to everybody’s benefit... The issue of Prorogation is absolutely marvellous, because the hon. Lady asked for a new Session and asked when this Session would end, and then asked me to promise that we would not prorogue. We cannot have both, because we cannot get to a new Session without proroguing."

The conference recess had not been approved and therefore had not been scheduled.

At this point Johnson had been prime minister (being generous) for two days, and he had not demonstrated a majority.

And so everybody went off on holiday or, as whispers to the media and some later revelations made clear, plotting. Brexit was 99 days away and No Deal was looming large. And prorogation was still in the air, with sinister variants floated probably by the Downing St Misdirection Unit. Amendments had been made to the Northern Ireland (Executive Formation etc) Act 2019 to require reports to be presented to the Commons at regular intervals. These were intended to prevent what was probably the worst prorogation option - suspension of Parliament through the end of October with No Deal happening automatically - by requiring the Commons to be sitting and, as we'll see later, that part did work. You can find the amendments by working through the top two documents here.

There was much talk of votes of no confidence and caretaker governments. To begin with this was mostly within and between opposition parties other than Labour, and names like Ken Clarke and Harriet Harman were mentioned as possible Prime Ministers of a government of national unity. What such a government would do was problematic. A referendum on Brexit was a popular idea, which seemed to be pushing it - what combination of parties and rebels could possibly hold together for long enough to call and run a referendum and run the country alongside it?

Labour was thinking differently - when asked, it reminded the world that Corbyn would be the only legitimate prime minister after a vote of no confidence. (The FT's legal commentator David Allen Green agreed: "Corbyn is Leader of the Opposition and so should have first dibs on forming a government if this one falls".) Eventually Corbyn published a letter with a simpler plan - himself as Prime Minister in a "strictly time-limited temporary government with the aim of calling a General Election, and securing the necessary extension of article 50 to do so".

Meanwhile, another, quieter group was exploring a different avenue - to pass a special law to prevent No Deal - and government occasionally assured us that they were not thinking of proroguing Parliament, and definitely didn't want a quick election.

Then suddenly prorogation was on every news bulletin, presented as a fait accompli, though it had had to battle with leaks and dramatic sackings. On 28 August, Big Jake Mogg, Lords leader Baroness Evans and government chief whip Mark Spencer travelled to the queen's summer retreat at Balmoral for a hastily arranged meeting of "the Privy Council" (one of the many undemocratic parts of our "unwritten" constitution I'd dearly love to reform out of existence). They took with them "advice" from Johnson which she couldn't ignore, and came away with a proclamation of prorogation. Parliament was still on holiday, and was about to be informed that its services would not be needed again for a while.

At this point Johnson had been prime minister for 36 days, with Parliament sitting for all of two of them, and he had not demonstrated a majority.

3 September - Parliament resumes for four days

At last, the following Tuesday, MPs were allowed back into the Commons, and some of them decided there was not a moment to lose. Parliament could be suspended as early as the next Monday, and something had to be done quickly. The quieter inter-party group had their draft law ready, so the back benches were going to have to take over again.

Johnson had been at a G7 event the previous week, and held meetings with Macron and Merkel, who were studiously polite to him, in the hope that something could be retrieved from the apparent vacuum of his thinking on the subject of a Brexit plan.

Downing St reports of these meetings (as has happened again and again) told us how positive they had been and that Macron opened up to the idea of changes to the Withdrawal Agreement, but the main prize was Merkel's "30 day deadline", which was nothing of the sort. She had observed exasperatedly that British ministers had previously proposed developments to avoid the Irish backstop during the agreed transition period (two or three years), so why not do it all in 30 days if it was as easy as Johnson kept claiming? He grabbed the idea of a deadline gleefully as a way to block out a whole month (from little more than two remaining before 31 October) and a way to confuse daily demands for progress reports.

A prime minister's duties include reports on such events to the Commons, but shortly after Johnson began, Philip Lee, Conservative MP for Bracknell, walked up the aisle and joined the Liberal Democrats on the other side of the house. Hansard records Johnson's response as follows: "...Britain is on the verge of taking back control of our trade policy and restoring our independent seat in the WTO for the first time in 46 years. Our exports to the United States—[Interruption.] I wish my hon. Friend the Member for Bracknell (Dr Lee) all the best".

Oliver Letwin

That was the government's majority gone, and it was to get worse. Three hours later, Oliver Letwin stood up to propose an emergency debate and the Speaker agreed. The details of the proposal can been seen in Hansard, but the effect of it was that the back benches would take the house over for much of the following day to process the bill which had by then been published.

The next day (after the small matter of the Speaker announcing his resignation) the short Benn bill went through all its stages in the Commons, supported by a larger vote than expected, as 21 Conservatives voted with the assembled opposition parties. They later lost the Conservative whip. Having already announced a prorogation which wasn't going to happen, Johnson now proceeded to request a general election that he had told us he didn't want (and which would prevent the agreement of the Brexit deal he tells us he does want by halting negotiations during purdah).

His tenuous working majority had had a great hole knocked in it on the only policy which mattered, and he lost. A vote of 434 MPs was required, and opposition parties abstained (my explanation on Twitter: "The opposition parties all want an election as soon as possible. They will obviously be 'competitors' in an election, but they're united - for a short time - only - on tying Johnson down to avoid No Deal if they can".). By the weekend, the government having given up fighting it, the Benn bill had passed through the Lords.

Royal assent then made it the Benn Act on Monday 9 September, and government lost control again, in an emergency vote to require ministers to hand over documents detailing its prorogation decision and Operation Yellowhammer, then yet another emergency vote on "Ministers’ obligation to comply with the law". Oh, and another attempt to call an election also failed.

At this point Johnson had been prime minister for 48 days, with Parliament sitting for just six of them, and he had not demonstrated a majority. In fact he had lost every vote he had gone for.

10 September - Parliament suspended for five weeks

While all of this was going on, a variety of cases had been heard by the lower courts of England and Wales, Scotland and Northern Ireland, all in one way or another to challenge the suspension of Parliament. All were eventually referred to an expedited hearing in the Supreme Court on 17, 18 and 19 September (with an issue related to the Good Friday Agreement retained for the appeal court in Northern Ireland).

The case was that the prime minister's "advice" to the Queen, as conveyed by that impromptu Privy Council meeting, was unlawful and that, by extension, the Prime Minister had lied to the Queen, an accusation which had led the news all day on 12 September when the higher Scottish court ruled that prorogation was illegal (not a good look, as Johnson answered the accusation on TV again and again).

Documents provided to the Scottish courts, then made public, showed two simple things:

• Despite many protests that they weren't considering prorogation at all, Johnson's inner circle had it in hand as early as 14 August.
• The length of the suspension was determined according to the requirements of the Northern Ireland (Executive Formation etc) Act - everything they could get away with.

The claim that prorogation was simply to prepare for a Queen's speech and to open a new Parliamentary session therefore seemed untenable (the conference recess, used to argue that only a handful of days in Parliament would actually be lost, had never been approved, as we saw above). The Supreme Court had to consider two questions:

• Was this a purely political question and therefore outside the purview of the court, or was it justiciable under the rules of judicial review?
• Assuming justiciability, was the decision lawful, or was its purpose to "stymie parliamentary scrutiny of the executive, which [is] a central pillar of the good governance principle enshrined  in the constitution".

We might hear by Monday. Will suspension be judged unlawful? Will the court order the government to open Parliament up again? Will Johnson comply with the law (as he constantly tells us he will)? Will he try to prorogue again?

At that point Johnson will have been prime minister for 62 days, with Parliament sitting for six of them, and he will still not have demonstrated a majority or won a vote in the Commons. Will he have won a court case? We'll see.

Leaving that there, how does the Johnson gospel see the next few weeks at the moment?

14 October - Queen's speech

Arrangements for the Queen's speech in 2017 didn't go smoothly - May sprang it on the Palace and it had to be fitted in with other events, from an award ceremony at Windsor Castle which had to be cancelled, to attendance at Royal Ascot. Also, the usual horses wouldn't be available because they hadn't been rehearsed thanks to a near clash with the Queen's birthday and Trooping the Colour. May also hadn't quite delivered the DUP, despite her promises.

Has Johnson done any better? We can only assume that he intends to stick to the nominated day whatever happens at the Supreme Court, but he has bigger problems with his majority than she had. He's certainly not in a strong position on the Conservative-DUP agreement which has to be reviewed at the end of each Parliamentary session.  It's fair to say that most if not all of the suspended Conservative MPs would probably vote with the government on most issues, but does that extend to a Queen's speech?

15 October - Debate on Queen's speech

The debate is normally four or five days, and that time has been allowed. If we've got this far, and if there's no plan for a further prorogation, he'd be hoping for a lively debate on his sparkling array of new bills to finally kick off his time as Prime Minister. But it isn't that simple.

17-18 - EU Council meeting

According to Johnson's plans, this is where his spiffing new agreement will finally be negotiated, but that's not what the meeting is for. The Council will only consider a completed draft agreement produced by the negotiations which are stutteringly under way at the moment. We should know well in advance if there's anything to discuss.

19 October - Decision day for the Benn Act

Hilary Benn

This is a Saturday, so I'm not sure how it's supposed to go. Johnson tells us he will return triumphant, brandishing his deal, on Friday night, but the act requires Parliament's agreement on a deal or on No Deal "no later than 19 October 2019" so Parliament - both Houses - would have to be sitting. Agreement of a No Deal Brexit must be by a simple Commons vote. Agreement of a deal must be by one of the famous "meaningful votes" as specified in the European Union (Withdrawal) Act 2018.

If neither agreement is forthcoming, Johnson is required to send a letter to Donald Tusk to request an extension of the Article 50 period, which he has said he won't do. He's also said he will obey the law, which looks like a contradiction.

There might be a sneaky way round this requirement, and moves are afoot to close that loophole too, which would have to be done during the first three days allocated to the Queen's speech debate.

21-22 October - Votes on Queen's speech

Not knowing the full list of bills, I don't know how this will go. In particular, will the promised Withdrawal Agreement Implementation Bill be such that the suspended Tories will support it? If not, Johnson is nowhere near a majority. Losing these votes would pile crisis on crisis, but if they somehow passed there would be ten days to go until Halloween. Does Johnson then ask Parliament to switch to 24/7 working to make it even half way possible to ratify his baby?

Of course, he might have requested an extension and had it confirmed, which would change everything.

Or he could have resigned rather than do that.

Or he could have resigned when the Supreme Court told him he was a liar.

23 October - It depends

EU Parliament calendar 2019

Either this will be the first day of what Johnson insists on calling "ample time to debate Brexit".

With a "meaningful vote" out of the way, all that's required is to pass a large, contentious Withdrawal Agreement Implementation Bill which nobody outside the inner circle has yet seen, but which has to get through all stages in both houses of Parliament.

Oh, and the EU Parliament has to debate and agree the draft agreement. They've been waiting for the Commons so far, but they'd have to do this in parallel. And they could reject it.

Or everybody will have to start improvising madly.

31 October - Brexit

This, as far as possible, has been Johnson's vision of the timetable. There are holes, distractions and detours all the way through. I wish I was studying it and not having to live it.

By Halloween, assuming he survives that long, Johnson will have been prime minister for 100 days. I'm not going to guess what small number of them Parliament has been sitting by then, but I will ask: Will he have won a vote in the Commons?

A little bit of bread and no cheese

Two versions of the same document

This is my interpretation, and I'm sticking to it until something from government shows me I'm wrong.

When Boris Johnson gave Michael Gove the job of disaster planning at the Office of No Deal (Offend - not really), he called on his new civil servants (most of whom had been working on the same job under the previous regime) to tell him where they'd got to.

The result was a document called Operation Yellowhammer - HMG Planning Assumptions - Latest changes in red (02/08/19) - Base Scenario, dated 2 August. This, as we're told by the  Herald's Scottish Political Editor Tom Gordon, who supplied a comparison of that document and the latest version, was given to the Scottish government and - I'd venture to say - to the Welsh administration, with a copy held in reserve for Stormont, or supplied to the impressive Northern Ireland civil service.

Note that Operation Yellowhammer was kicked off by Theresa May as prime minister, and you'll see that unprepossessing image again.

A couple of weeks later, somebody slipped a copy of the document to Sunday Times reporters Rosamund Urwin and Caroline Wheeler, and it became an EXCLUSIVE under the headline "Operation Chaos: Whitehall's secret no-deal plan leaked".

The two reporters claimed a "Cabinet Office source" told them "It is a devastating health check on the nation's preparedness" and a "senior Whitehall source" said "This is not Project Fear - this is the most realistic assessment of what the public face with no deal. These are likely, basic, reasonable scenarios - not the worst case".

Think what you like about anonymous Whitehall sources, but the detail is what we've been hearing from industry after industry and professional body after professional body - British Nuclear Medicine Society to British Retail Consortium, and the Road Haulage Association complained that nobody had warned them of refinery closures (paragraph 15).

On the day (18 August), Michael Gove came out and told us that this was "absolutely the worst case" and that the government had taken "significant additional steps" in the two weeks since the document was circulated - I would bloody well hope so - and this was the line they maintained until after Johnson's "controversial" move to suspend Parliament.

Michael Gove says leaked #Yellowhammer dossier on impact of no-deal #Brexit outlines "absolutely the worst case", and government has taken "significant additional steps" to ensure UK is prepared to leave on 31 Octoberhttps://t.co/erUz3Y6B4P pic.twitter.com/2lJg2rb1hn

— BBC Politics (@BBCPolitics) August 18, 2019

A lot of big things happened during this time which I don't want to spend too much time on here.

• Parliament passed a law to require Johnson to request an Article 50 extension if he couldn't get the Commons to approve a Brexit deal or no deal.
• One Conservative MP crossed the floor to join the Liberal Democrats, 21 MPs lost the Conservative whip and another one resigned it.
• Johnson decided to suspend Parliament so that he couldn't be held to account.
• And he was taken to court in three jurisdictions - Northern Ireland, and England and Wales, where the courts decided the question is political and therefore not for them, and Scotland, where the judges disagreed, and ruled that the prorogation is illegal. For example, Lord Carloway's opinion stated "prorogation was being mooted specifically as a means to stymie any further legislation regulating Brexit". (There is a lot of argument among lawyers about what should be considered "justiciable" in this context.) The UK Supreme Court has set aside 17-19 September to produce a single answer on this question.
• People seriously started to ask whether a British prime minister had lied to the Queen.

12 September 2019

The prime minster's denial that he lied to the queen leads the bulletins throughout the day, after a Scottish court rejects his stated reason for suspending Parliament. Other courts "support" him by not considering the question.https://t.co/8NBk78DnKo pic.twitter.com/3SJlou8WFJ

— Ed Wilson (@eddwilson) September 12, 2019

Back on track

On the last day before Parliament was closed down it was time for emergency measures. Jeremy Corbyn demanded and was granted 90 minutes to debate a motion "on whether the Prime Minister will obey the law that this House has just passed into law". That law was the Benn bill requiring the prime minister to request an Article 50 extension if no Brexit has been agreed by the Commons by 19 October, its royal assent announced earlier in the afternoon to make it the European Union (Withdrawal) (No. 2) Act 2019. The government declined to take part until the end of the debate, when Dominic Raab offered "This Government will always respect the rule of law. That has consistently been our clear position and, frankly, it is outrageous that it is even in doubt".

But it was in doubt, and it still is.

Raab refused to allow Sylvia Hermon to make a point, but Corbyn made way (good tactic in this case). She argued "The Foreign Secretary described as flawed the legislation that is intended to stop the country leaving without a deal, which received Royal Assent today. ​May I recommend to him, and indeed to all Members of the House, Radio 4’s interview with Lord Sumption, a very distinguished former member of the Supreme Court? He said that there was not “the slightest obscurity” about the Act. I rest my case. It is not flawed." The motion passed without a vote, not that we were any the wiser by the end about Johnson's attitude to following the law.

But before that came Dominic Grieve's motion, (he got the full three hours allowable for an emergency motion) which takes us back to the main purpose of this piece:

"That a humble address be presented to Her Majesty, that she will be graciously pleased to direct ministers to lay before this House, not later than 11.00pm Wednesday 11 September, all correspondence and other communications (whether formal or informal, in both written and electronic form, including but not limited to messaging services including WhatsApp, Telegram, Signal, Facebook messenger, private email accounts both encrypted and unencrypted, text messaging and iMessage and the use of both official and personal mobile phones) to, from or within the present administration, since 23 July 2019 relating to the prorogation of Parliament sent or received by one or more of the following individuals: Hugh Bennett, Simon Burton, Dominic Cummings, Nikki da Costa, Tom Irven, Sir Roy Stone, Christopher James, Lee Cain or Beatrice Timpson; and that ministers be further directed to lay before this House no later than 11.00pm Wednesday 11 September all the documents prepared within Her Majesty’s government since 23 July 2019 relating to operation Yellowhammer and submitted to the cabinet or a cabinet committee."

That's a lot of material demanded from the government: everything about the decision to suspend Parliament, and everything produced by Operation Yellowhammer that ministers actually saw. The motion passed by 311 to 302, but nobody knew whether government would cough anything up, because Parliament was suspended at the end of the day, after opposition parties had stuck together to refuse Johnson his general election get-out.

Two days later Michael Gove released two documents - just two documents - a version of the Yellowhammer report and a carefully lawyered letter explaining why there would be no more. This is yet another piece of evidence that our governance needs some law behind it. There's not much point in having nice "powers" like a "humble address" if they can't be enforced. The US Congress would be laughing at us: they can sub poena people and evidence.

Two versions of the same document

I've read a lot about this Yellowhammer document, this time entitled Operation Yellowhammer - HMG Reasonable Worst Case Planning Assumptions - As of 2 August 2019, and nobody has suggested that it's different from the last one apart from the title. Nobody has even objected to the assumption that paragraph 15, which was redacted in this new version, is identical to the same paragraph in the document leaked to the Sunday Times. So I'll assume it's one document which Gove has painfully tried to misrepresent from the start.

But the title has changed, and all government mouthpieces must fit the phrase "worst case scenario" into every interview.

The sad, but hardly unexpected, thing is that so much of the media does the same. The Sunday Times scoop is vindicated but BBC News slavishly follows the "worst case scenario" line. It would be bad if they were hiding the real contents of the document, but it's just sad that they can only misrepresent it.

And some government mouthpieces really overdo it.

Flying to the Middle East for work and reading the safety card. In a worst case risk scenario the aircraft could crash. Brexit is a risk but much more likely a significant UK global opportunity. The real danger is remaining in an increasingly centralising and undemocratic EU. pic.twitter.com/jibHzETmML

— Henry Smith MP (@HenrySmithUK) September 15, 2019

Meanwhile - booksellers' news

David Cameron's book, For the Record, will be published on 19 September, in good time for full appreciation before Halloween.

Boris Johnson told reporters that nothing his predecessor says "in the next few days will diminish the affection and respect in which I hold him". And we all know we can take him at his word.

Letter to my MP - Prorogation of Parliament

Boris Johnson claims to be trying to negotiate a new Brexit deal which - given the little time available - could only be a minimally amended version of the existing withdrawal package. The European Union (Withdrawal) Act 2018 is still in force, so ratifying such an agreement would require a "meaningful vote" and a Withdrawal Agreement Implementation Bill. Mr Johnson's prorogation allows two weeks for all that, assuming its agreement at the 17-18 October EU Council summit.

Mrs May never dared even to publish the version of that bill which would have applied to the existing withdrawal agreement. Does Mr Johnson really expect to take his version through both houses - after a vote under Section 13 of the 2018 Act - in two weeks?

He argues that the prorogation he secured from the Queen last week is a perfectly normal process, which is transparently untrue. He certainly should present a programme for government, having never given us a manifesto to consider, and he certainly should seek a majority in the Commons. Without that his government has no legitimacy. The conference recess, however, has not been approved by the Commons - as you know - and many MPs were determined to vote against it, so prorogation should be assumed to take a full five weeks of sitting time away.

The claim of "ample time" for debate is also laughable, with the few days before prorogation dominated by a spending statement, and the few days before the EU Council summit devoted to a Queen's speech. With demonstrations taking place around the country today and cases to prevent prorogation scheduled in the courts of England, Scotland and Northern Ireland, it should be obvious that Mr Johnson's tactics are questionable.

I ask you to protest against this brazenly deceitful and undemocratic move and do what you can to change Mr Johnson's mind.

This is our prime minister

On 24 July 2019, his election by the voting membership of the Conservative and Unionist Party confirmed, Boris Johnson stood on Downing St and told us:

“The people who bet against Britain [apart from my financier friends of course] are going to lose their shirts because we are going to restore trust in our democracy and we are going to fulfil the repeated promises of parliament to the people and come out of the EU on October 31, no ifs or buts. And we will do a new deal, a better deal that will maximise the opportunities of Brexit while allowing us to develop a new and exciting partnership with the rest of Europe based on free trade and mutual support... I have every confidence that in 99 days’ time we will have cracked it. But you know what – we aren’t going to wait 99 days because the British people have had enough of waiting."

A new deal eh? Watch those 99 days, and remember that "we aren't going to wait".

There will be no Queen's speech, and I will not demonstrate my majority

The next day he graced the Commons with his presence:

"I and all Ministers are committed to leaving on this date, whatever the circumstances. To do otherwise would cause a catastrophic loss of confidence in our political system. It would leave the British people wondering whether their politicians could ever be trusted again to follow a clear democratic instruction. I would prefer us to leave the EU with a deal; I would much prefer it. I believe that it is possible, even at this late stage, and I will work flat out to make it happen, but certain things need to be clear. The withdrawal agreement negotiated by my predecessor has been three times rejected by this House. Its terms are unacceptable to this Parliament and to this country. No country that values its independence, and indeed its self-respect, could agree to a treaty that signed away our economic independence and self-government, as this backstop does. A time limit is not enough. If an agreement is to be reached, it must be clearly understood that the way to the deal goes by way of the abolition of the backstop.

"For our part, we are ready to negotiate, in good faith, an alternative, with provisions to ensure that the Irish border issues are dealt with where they should always have been: in the negotiations on the future agreement between the UK and the EU. I do not accept the argument that says that these issues can be solved only by all or part of the UK remaining in the customs union or in the single market. The evidence is that other arrangements are perfectly possible, and are also perfectly compatible with the Belfast or Good Friday agreement, to which we are, of course, steadfastly committed. I, my team, and my right hon. Friend the Secretary of State for Exiting the European Union are ready to meet and talk on this basis to the European Commission, or other EU colleagues, whenever and wherever they are ready to do so."

Greg Hands asked him: "Does [the prime minister] welcome the findings of the alternative arrangements commission, led by [myself] and... Nicky Morgan?" and was told: "I do... the facilitations and the remedies do exist. What it takes now is the political will to get there".

A couple of other things to watch out for here:

• any signs of Johnson "working flat out" to make a deal happen
• any signs of readiness to "negotiate... an alternative" or, in particular, to "talk... to the European Commission, or other EU colleagues, whenever and wherever they are ready"

And one to leave hanging: It would leave the British people wondering whether their politicians could ever be trusted again

You'd think, at this point, he'd be looking for alternatives.

I will not meet these people

The next Monday, with Parliament conveniently dispatched on a summer holiday, Politico reported a government briefing: "Boris Johnson will not meet EU leaders until they agree to change their position on the Northern Irish backstop... while he wants to meet EU leaders and negotiate a Brexit deal, he does not want to be sat down and told that the EU cannot possibly reopen the Withdrawal Agreement and that is the message he has been giving to leaders when he has spoken to them on the telephone so far".

"The PM wants to leave with a deal," the spokesperson said, "and we hope that the EU will change their position".

Johnson had hardened his position, the report continued, [two] days after the EU's chief Brexit negotiator Michel Barnier urged European leaders [in a leaked letter] to "remain calm" and "stick to our principles and guidelines and show solidarity and unity" in response to Johnson's insistence that the backstop provision in the Withdrawal Agreement be axed.

The spokesperson said: "The Withdrawal Agreement was rejected by parliament a number of times now and clearly it is not going to pass in its current form. It needs to change if there is going to be a deal".

Later that day (still from Politico), in an interview with broadcast media, Johnson said: "I don't want the UK to be aloof or hanging back. I want us to engage, to hold out the hand and go the extra mile, the thousand miles. And what we wanted to do is to make it absolutely clear that the backstop is no good, it's dead, it's got to go, the Withdrawal Agreement is dead, it's got to go. But there is scope to do a new deal".

But of course he did meet them, as we all saw, and Angela Merkel mused on the many times she'd been told that alternative arrangements would save the day. Maybe it could be done in two years, so why not in thirty days? Most people who aren't members of the UK media pack heard that as an observation that Johnson wasn't telling her anything she could work with, but the headlines were "Merkel hands Boris a 30-day deadline".

Which she didn't.

But he grabbed this "blistering deadline" with both hands, because it meant he could run the clock down almost half the way to Halloween with an excuse that he was looking at alternative arrangements. And he went straight back home and instructed his DExEU secretary to "turbocharge" work on alternatives, without ever having done more than recite the two phases he could remember from the Alternative Arrangements report a couple of times.

You'd think he'd have told his "friend and partner" that he had been working on a comprehensive alternative scheme which she would see within days. After all, time is short (but perhaps not short enough for him).

Interlude

It might come as a surprise to some, but it is not the job of the EU Commission negotiators, or the representatives of 27 member states, who tell the negotiators what to do, to give the UK a "good deal".

I know we're sceptical, but you made us so

And while Johnson was in Biarritz... out came a "leak" which you have to suspect was intended to keep the pressure on MPs at home, but could certainly screw up Johnson's relations with his "friends and partners" at the G7 and later. "An email from senior government advisers to an adviser in No 10 – written within the last 10 days and seen by the Observer – makes clear that the prime minister has recently requested guidance on the legality of" shutting Parliament down "for five weeks from 9 September in what appears to be a concerted plan to stop MPs forcing a further extension to Brexit".

This move seemed to have faded away in recent days, but it might be that the cynical "coup" of executive over legislature is still a thing of propaganda (Sunday morning press statements naturally said it wasn't happening), if not a definite tactic. The idea that legislation might be required in those last few weeks to make No Deal "work" is forbidden in government circles.

And in interviews after the get together in the Basque sunshine Johnson talked of No Deal being touch and go (he has to start trying to get a deal yet) rather than a million to one against. It'll be some other formulation tomorrow. Similarly, he presented his talks with Trump about a big, nay, humongous, nay, the biggest US-UK deal you've ever seen (© the orange man-child, 2019) as likely to take not a bit less than one year (as Trump would like for electoral purposes) and not five years (which is beyond public thinking at the moment), but... what? He neglected to say. What a surprise.

He said a lot more, but it really isn't worth reporting because it will be forgotten tomorrow.

Alternative arrangements

In December 2017 the "Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union" (these titles really trip off the tongue) introduced the Brexit backstop to the world.

Article 49 stated: "The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom's intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement."

As some of the media reported at the time, that meant that the eventual aim of this Brexit thing was to agree an "overall EU-UK relationship" which would protect the Good Friday Agreement's implementation. If that couldn't be achieved by the end of the withdrawal agreement's transition period (as everybody expected), the UK would propose "specific solutions" to achieve the same objectives, and while we were all waiting for one of those two solutions ("in the absence of agreed solutions"), the backstop would apply ("the United Kingdom will maintain full alignment..." with more in Article 50).

Specific solutions became alternative arrangements, and much work has been done since then. Many Brexiters have told us it would be easy, because the EU Parliament had published a document which did it all. It didn't of course, and it was immediately obvious that most people who referred to it hadn't read it. I took a look at it in March 2018.

There have been quite a few proposals since then, culminating in the work of the Alternative Arrangements Commission, whose report Johnson quotes to back up his assertions that there are "abundant solutions" to this problem (again, without convincingly demonstrating that he's read it). Setting aside the questions and problems which have been raised (of which there are many), let's just turn to the recommendations on page 11 of the full report.

Number 1 is "Working Alternative Arrangements should be fully up and running within three years", which is certainly less time than a full set of agreements on a future UK-EU relationship would be likely to take. But if it's No Deal, what happens during those three years? There would be no alternative arrangements on the border, indeed no arrangements at all.

And we keep hearing reports from the Police Service of Northern Ireland such as this, from ITV. Chief Constable Simon Byrne tells us the border can't be policed electronically.

Incidentally, a backstop, and a Northern Ireland-only backstop at that, not the whole-UK idea that May dragged out of the EU negotiators, seems to be pretty popular among the people actually concerned.

#Brexit - Poll suggests 58.4% of voters in Northern Ireland support the backstop - with 39.5% against it. pic.twitter.com/8wwlQo1Alr

— Darran Marshall (@DarranMarshall) August 18, 2019

A bit more from an Irish-informed viewpoint

One of Johnson's earnest throwaway lines is to claim that his "friends and partners" in the EU27 are "beginning to realise" what the UK's problem with the backstop is. Of course they've known it for two years or more. Kevin O’Rourke, professor of economic history at Oxford, took a step back in the Observer.

"The only region of the world where you will find sovereign states coexisting without border checks on the trade between them is the EU. There is nothing accidental about this, since eliminating borders was the great project of the EU. It did so by eliminating the reasons why modern states find it necessary to inspect goods crossing international frontiers: in particular, different tariffs on imports from the rest of the world, implying an incentive for criminals to smuggle goods from countries where tariffs are low to countries where they are high; and different rules on what can be legally bought and sold, implying an incentive for criminals to smuggle goods from countries where they can be legally sold to countries where they are prohibited.

The first reason for border controls was eliminated by the simple expedient of setting up a customs union, which dates back to the foundation of the old EEC and involves all member states having a common trade policy vis-a-vis third countries. And the second was eliminated by ensuring that the rules governing what can be legally bought and sold are the same across the EU: this is the single market, which as you will recall was a largely British invention. When it came into effect in 1993, border controls on trade vanished across Europe."

"However, that will not stop many in the UK claiming that the backstop, which de facto keeps Northern Ireland in the customs union and single market for goods, is not required to avoid a hard border in Ireland; that in a no-deal scenario you wouldn’t need one anyway; that if there are checks on UK goods at Calais this will constitute “punishment” by the EU; and so forth. While many making such claims are just being dishonest, there are probably others who are genuinely confused. And one reason for that is that they’ve so internalised the EU’s greatest success that they assume it is the natural state of affairs.

Which is wrong and also a bit ironic."

Who is this Boris Johnson?

This is the man in one picture for me. He's in a hospital - sleeves rolled up, tie tucked in, good boy - on a tour of Devon, and he's asked about people trying to get to the UK in small boats from France, and he can't, or has never thought of trying to, remove that smile from his face.

He tells us, wrongly, "we will send you back... if you come illegally, you are an illegal migrant and the law will treat you as such".

Is he unable to see it as anything but a game? Being able to introduce a lighter moment to illustrate a point can be a good device for public engagement. Being unable not to borders on the sociopathic.

Questions for leaders in waiting

Way back in April, the 28 member states of the EU agreed another extension of the Article 50 period, defining a Brexit date of 1 June, 1 July, 1 August, 1 September, 1 October or 1 November according to when a withdrawal agreement can be ratified.

Remember, for the UK to ratify an agreement, the current law says that the Commons has to agree a motion and the Commons and Lords have to pass a new law to implement it. Other laws would still be required to "make it work". None of that changes with a new prime minister unless that current law is changed.

For the EU to ratify an agreement, the EU Parliament has to approve it, then the EU Council has to vote for it. Any proposed changes to the current withdrawal package would first have to go through a negotiation process and approval at least by the member states' representatives in Brussels.

The last extended date for Brexit is already seven weeks behind us, so how are the next five months going to pan out?

24 May	May announces she will resign, kicks off a phoney Tory war; candidates begin to step forward
7 June	May resigns as Tory leader, stays on as prime minister
10 June	Leadership election begins
2 July	New EU Parliament sits for the first time
22 July	New Tory leader announced; this could be earlier according to progress in the contest; May is still prime minister until the new leader is invited by the queen to form a government
24 July	UK Parliament goes on summer break (actual date to be confirmed)
3 September	UK Parliament returns for a few days
16 September	UK Parliament off again for conferences
8 October	UK Parliament back to work
17-18 October	EU Council - the last chance to ratify a Brexit deal before Halloween?
1 November	Brexit

During this time Michel Barnier might have been selected as the new president of the EU Commission (to take office on 1 November). His deputy, Sabine Weyand, already has a new job to go on to at the EU trade directorate.

At some point after 2 July, or whenever the new leader is announced, he or she has to try to convince her or his party, the DUP, the queen and the rest of us that he or she can command a majority. With luck she or he will be asked to form a government.

Will there be a new parliamentary session, and therefore a new queen's speech? If so there is the possibility that legislation such as the new Trade Bill might fall and have to be started again later. There's also the possibility that the new leader's programme will not be agreed, which opens up the chance of a vote of no confidence and even a general election, which would be even more fun.

When can any of this happen?

When is the queen on holiday?

When are MPs available to approve any deal for ratification, or any no deal for that matter?

When are MEPs available to approve any new deal for ratification? They'll be finding their feet and confirming (or not) the new commission.

When do any of these candidates for leader expect to negotiate their own, new deals (the question goes to you as well Mr Corbyn). Who do they expect to negotiate with?

These are questions every interviewer should address with every candidate until the leadership election is finished, and with some of them afterwards.

A hostiler environment

Every day seems to bring a new example of the Home Office's hostile environment. On Thursday came a tweet from one Charles Kriel: "An incredibly unwelcome entry to the UK today, as I was informed my 15 week old London born baby does not have the right to reside in the UK despite a Norwegian mother and father with Indefinite Leave. That’s not what anyone should expect when returning home".

According to gov.uk the child could be a British citizen from the status of at least one of his/her parents. It might be that different arrangements have been made for the child's citizenship, but right to reside seems more straightforward: "You have the right to reside if you’re a close relative of an EU, EEA [including Norway] or Swiss citizen. Close relatives [include] children". Are the new settled status arrangements for Brexit changing this qualification, because the existing web pages seem to solve Mr Kriel's problem?

Diane Dodds MEP

The same day a Democratic Unionist politician opened wide a subject that's been bubbling insistently under the Brexit debate for weeks now. The politician in question was Diane Dodds, one of Northern Ireland's three MEPs, and she warned that Brexit must not be "cynically exploited to seek serious and irreversible changes to UK citizenship laws which would set Northern Ireland adrift from Great Britain".

The question concerns citizenship for those born in Northern Ireland, and has been through social media campaigns, questions in the Commons and a judge's decision which set the Good Friday Agreement above UK law. And thereby, to coin a phrase, set Northern Ireland adrift from Great Britain.

The Good Friday Agreement proclaims "the British and Irish Governments... will... recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland".

Ms Dodds cites that same paragraph of the agreement (paragraph 1(vi) of the section on Constitutional Issues), but stresses particular words. She refers to people's "right to hold both British and Irish citizenship" and offers an interpretation: "this does not say British or Irish citizenship. Therefore most people born in Northern Ireland are entitled automatically to Irish citizenship, but this is in addition to, and not instead of, British citizenship". Which doesn't seem right.

The citizenship question is simple in the Republic of Ireland, which amended its nationality laws to reflect the position set out in the Good Friday Agreement, but complex in the UK, including Northern Ireland, because the UK amended nothing.


The right to one citizenship or the other, or both, was established as a birthright, so campaigner Emma DeSouza can state "I am an Irish national born in Northern Ireland, Irish by birth & Irish under the Belfast/Good Friday Agreement", yet she has been informed by the UK government that she is "as a matter of fact a British citizen", and that to exercise the rights of an Irish citizen she will have to renounce the British citizenship she doesn't consider she has.

Ms DeSouza's case arose initially because she wanted to regularise her husband's status - Brexit is raising questions like this for millions of people - but other questions have come up, fed by the absence of any provision for this birthright in British law and the apparent ignorance and incompetence of ministers of the British government.

In a related enquiry, Secretary of State for Northern Ireland Karen Bradley was asked "for what reason do the reciprocal voting rights of Irish citizens not cover referendums" and replied "The voting rights which will continue to be enjoyed by British and Irish citizens are reciprocal. British citizens may vote in local and parliamentary elections in Ireland but not Presidential elections or referendums. This reciprocal right is reflected in the voting rights of Irish citizens living in the United Kingdom", thereby appearing to confirm that the basis of the question is the case and has always been so.

Thus, though Irish citizens could vote in - say - the 2016 referendum on remaining in or leaving the EU (as could Maltese and Cypriot citizens resident in the UK, as citizens of a Commonwealth country, not as EU citizens), it is suggested that Irish citizens in Northern Ireland could not as a right vote in - say - a border poll on reunifying Ireland. That qualification would have to be written specifically into the bill establishing the referendum.

Other questions of this sort are blowing up, but for now let's just return to the tribunal Ms DeSouza and her husband asked to decide on their status. The judge stated: "under the terms of the Good Friday agreement people of Northern Ireland are in a unique position within the United Kingdom. The British and Irish governments recognised the birthright of all the people in Northern Ireland to identify themselves as Irish or British or both, as they may so choose." and went on: "The constitutional changes effected by the Good Friday Agreement with its annexed British-Irish Agreement, the latter amounting to an international treaty between sovereign governments supersede the British Nationality Act 1981 in so far as the people of Northern Ireland are concerned. He or she is permitted to chose their nationality as a birthright. Nationality cannot therefore be imposed on them at birth."

I essayed a rather naive look at this subject in 2017, but with the Brexit "settled status" system being rolled out even in the absence of any final decision on withdrawing from the EU, and the Home Office showing every sign of building a new Windrush scandal in plain sight (there is no document which states that you have settled status; every employer, landlord, service provider etc will have to go online to discover whether you can live, work or receive healthcare etc in the UK) it seems inescapable that the complexity and cost of this shambles will continue to grow.

Letter to my MP - Avoiding the EU elections

Today, Philip Hammond was quoted as saying, "Clearly nobody wants to fight the European elections. It feels like a pointless exercise, and the only way we can avoid that is by getting a deal agreed and done quickly. If we can do that by 22 May, we can avoid fighting the European parliamentary elections".

What does he mean by "if we can do that"? He was referring to negotiations between the Conservative and Labour parties. Is the government yet again talking as if all that matters is to agree an approach within the UK Parliament?

For the UK to ratify the withdrawal package, the EU (Withdrawal) Act tells us the Commons must vote for a motion to approve the withdrawal agreement and political declaration, the Lords must debate a neutral motion on the two documents, and a Withdrawal Agreement Implementation Bill must go through both houses and receive royal assent.

In addition, the treaty can't come into effect without votes in the EU Parliament and the EU Council. And none of these votes can take place without - at least - a draft being agreed by the EU's chief negotiator Michel Barnier, and the EU ministers of the EU27 member states.

Is Mrs May's declared intention, echoed above by Mr Hammond, to achieve all this in time to make UK participation in the EU Parliament elections unnecessary? When could this all happen?

The current EU Parliament meets for the last time on 18 April - while the Commons is in recess - and the new parliament doesn't convene until 2 July. Mrs May and Mr Corbyn might come to an agreement on a new political declaration during the week of 22 April and manage the required approval from Mr Barnier and his working group during the following week, but there will be no EU Parliament to approve it.

Yesterday Martin Whitfield (East Lothian) asked the prime minister, "The deal will require ratification by the European Parliament. The current European Parliament will sit for the last time a week from today, and then after the elections it will meet just once in July to sort itself out. It will not really meet properly until October or November. Is an earlier leaving date not actually an impossibility, because the deal cannot be ratified?".

And she replied, "No, it is not an impossibility. It is possible for the European Parliament to ratify in advance of the United Kingdom ratifying". But whatever she might wish to have them approve doesn't exist today, and as and when it does come into being there will be no EU Parliament to consider it.

I'm told that the EU Parliament can be recalled to discuss an important topic, as the Commons can, and that a quorum of a third of MEPs could make such a decision. Is Mrs May relying on that, during an election period?

It's also possible that she's hoping the condition which could have given us an extension to 22 May - the Commons approving the withdrawal agreement - would suffice, but that leaves a huge hostage to fortune, because it would still be possible that the EU Parliament could reject it later, leaving a parliament without British MEPs, and legally invalid. I can't believe that Mr Barnier, the Commission or the Council would allow that to happen.

To put it simply, I don't see how this country will not be taking part in elections to the EU Parliament on 23 May.