The final parliamentary Brexit battle is coming: This is what it looks like

This morning we finally got a clear look at the battlefield. MPs have marched for two and a half years, climbed the hill of defeating Theresa May's deal, and finally they can see it there in front of them.

The amendments that have been put down on the prime minister's Brexit statement reveal how MPs are going to try and wrestle control from the government. They have two aims. The first is to prevent no-deal. The second is to provide a forum, outside of No.10's interference, in which they can figure out what the hell to do next.

Before the armies could make their way down to the battlefield, however, the government was up to a bit of slippery business. It's a weird move that makes no sense to anyone. May made no mention of it in the Commons yesterday - not in her statement or during hours of questioning from MPs. But then, later on, the written statement was published. And that had a caveat in it.

"Members will be advised," it said, "that amendments tabled to the original section 13(6) motion will need to be re-tabled when the second joint motion is tabled."

That's odd. There shouldn't be a second motion. There should just be the motion May put forward. Why on earth would she put it down again? Apparently it is necessary "to avoid any legal uncertainty as to whether the government has complied fully with the terms of the European Union Withdrawal Act."

But that makes no sense. The government has complied with the Act. The pertinent bit is Section 13. It states what should happen once the prime minister got a deal, or if she didn't. Parts 1 and 2 of Section 13 said that the deal with the EU would only be ratified if the Commons voted for it. Parts 3 to 6 concerned what happened if the Commons voted down a deal. And parts 7 onwards laid out the rules if the prime minister failed to get a deal at all.

The bits which are relevant to us are therefore 3 to 6. But last night's written statement referred to part 7 onwards. "Section 13(11) of the Act states that the government must make the statement and motion mentioned above if, at the end of 21 January 2019, 'there is no agreement in principle in negotiations'," it said. "While the negotiations have yielded an agreement, that agreement has not been approved by parliament."

This is really odd. It takes the bit of law meant for not getting a deal with the EU and applies it to a circumstance in which the government could not get it past the Commons. It gets even more weird when you consider that the prime minister did not mention it.

So what's going on? No-one knows. It's possible that this is just a bit of extreme legal caution and that the government is trying to insulate itself from a legal challenge in the future. But it's hard to see how that holds. The government does have a deal with the EU. The only way this is relevant is if it didn't.

There is another interpretation. Putting down the motion again means all the amendments are withdrawn and MPs have to put them down once more. The government could be hoping that they don't notice this has happened. If so, this is a very desperate gambit. MPs will notice and if anything it is likely to strengthen their resolve.

Or perhaps it is useful for the government to pretend that they have not really reached a deal with the EU so it's easier to tinker with later, or because a legal challenge might hinge on whether it was officially secured at this stage.

Legal and parliamentary experts are baffled by this move and some of them smell a rat. There's clearly some sort of plan bubbling under that nonsensical legal logic and people are vigilant about what it might be.

When the motion is finally brought back a second time, MPs will put down their amendments all over again. The two most pertinent ones are from Labour MP Yvette Cooper and Tory MP Dominic Grieve. They are complementary and seem to have been designed from the ground-up to work alongside each other. This is extremely positive. It suggests that soft Brexit supporters and People's Vote supporters in parliament are now working actively together.

Cooper's amendment is the one that tries to kill no-deal. It does this in quite a convoluted way.

First of all, it creates a private members bill. These are pieces of legislation written by MPs. Usually they die a lonely death. No-one knows they existed and no-one cares, apart from the author and their immediate family. But this one is different. People know it exists and they definitely care.

The Cooper bill gives the government until February 26th to secure a deal. If it fails, it automatically triggers a direction to the prime minister that she must apply for an extension to Article 50 until December 31st. Basically, it turns the no-deal cliff-edge into a nine month Article 50 extension.

Cooper didn't have to go this way. She could have just put an amendment down demanding Article 50 be extended. But amendments on motions are not legal. They are political. And there is room there, if the government was being especially untrustworthy, to ignore it. This government is especially untrustworthy, so Cooper has chosen to go down the harder, firmer route of legislation. That really gives MPs full legal control.

But there is a downside: it is much slower.

Cooper's amendment is therefore not directly intended to extend Article 50. It is intended to clear the way for her bill, which would then extend Article 50. It strips back government control over the Commons for one day: February 5th. And on that day, she plans to ram her bill through parliament.

It does this by targeting various standing orders - rules for the way the House operates - and assassinating them.

So standing order 14(1), which gives government business precedence, is killed off for the day. Standing order 41A, which can put off a vote until another day, is also butchered. Any mechanism which would allow Brexiters to filibuster the bill has its throat cut in a back alley. Then it allows amendments ahead of second reading, which would massively speed things up.

It's like if a piece of backbench legislation was zapped by lightning and given super powers. It does to the bill what happens to Neo at the end of the Matrix. All his opponents start to move in slow motion and he is imbued with extraordinary abilities.

But he's still not God. Neo had two more films of increasingly convoluted and self-important existential philosophy to get through. And Cooper's bill would face similar problems.

After second reading, it would still have to go through committee and report phase and then third reading. That's not just in the Commons. It involves the Lords too. Her plan is clearly to try and clear as much of this as possible on February 5th, but if the government was really keen on no-deal and intent on killing this thing dead, they might still be able to delay it until it was useless.

That would be constitutionally shocking. The bill would clearly have the support of the House, not just on its own second reading but by the extraordinary step of having accepted this superhero formula amendment to create it. But we are in constitutionally shocking times and nothing can be ruled out. Cooper's amendment is a valiant and highly credible effort to prevent no-deal. But a government really committed to blocking it could probably find a way to do so.

There's one other problem with the bill: MPs cannot put down and pass legislation with financial demands. Only the government can do that. This is a basic principle which has been around pretty much as long as parliament has existed. The provision for it nowadays is in standing orders 48 and 49.

The problem is that Cooper's bill does have a financial element. It doesn't mention it specifically, but it's in there. If you extend Article 50, you have to go back to the Withdrawal Act of last year and scrub out the bit that said we're leaving on March 29th. And that means that the bit repealing the European Communities Act 1972 has to go too. And that has a money element, because it states our financial obligations to the EU. 

For some people, that's a clincher. It kills the legislation stone dead. Policy Exchange's Stephen Laws got very excited yesterday and imagined that it would lead the Queen to pull Excalibur from the stone and kill an imaginary Remainer conspiracy.

But it's not as simple as that. Cooper's amendment has three defensive options. The first is that governments are expected to put forward a money resolution for private members bills that survive to second reading. The second is that the financial element is an after-effect of the bill, not the primary function. And the third is Speaker John Bercow, who seems quite willing to take unprecedented action right now if it gives parliament a greater say. The constitutional shocks play both ways.

And then there's Grieve's amendment. With no-deal killed off by Cooper's effort, this then takes up the rest of the fight and tries to provide a space for the Commons to decide what it's going to do next.

It is a very neutral effort. Earlier drafts were more radical and toyed with reducing the numbers of MPs needed for a motion to pass. The one he published is more modest.

It provides for six days in which MPs call the shots: February 12th and 26th, and March 5th, 12th, 19th and 26th. That final day is proper squeaky-bum territory. If it gets that close to the end of the wire, we're in serious trouble. 

Like Cooper's amendment, it kills off standing orders 14(1) and 41A, on the government's ability to control Commons business and mechanisms to delay a vote. Then it ensures that debate is on Brexit, by kicking things off with a motion that "this House has considered the United Kingdom's departure from, and future relationship with, the European Union". And it blocks any attempt at filibustering. At the end of the debate, there's a vote.

What MPs chose to do with this time is up to them. If they want to spend those days forming a piece of legislation on a People's Vote, they could do so. If they want to hold a series of indicative votes on a customs union, or soft Brexit, or a second referendum, they could do that too. What they choose is their business. All Grieve's amendment does is keep the government out the way. It provides a forum, not a solution. That's up to MPs.

That's the shape of the battlefield in front of us. What happens next is anyone's guess.

This piece is based on conversations with Maddy Thimont Jack from the Institute for Government, Jack Simson Caird from the Bingham Centre for the Rule of Law, Brigid Fowler from the Hansard Society, and others in Westminster who chose not to be named.

Ian Dunt is editor of Politics.co.uk and the author of Brexit: What The Hell Happens Now?

The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.

The civil war between Norway and People's Vote is insane

Just as the situation turns to their advantage, Brexit fellow-travellers are turning their fire on each other. It is the most baffling spectacle, born out of the weirdo psychological instincts of tribal political campaigns.

Over the weekend, there was another volley of attacks from People's Vote campaigners towards Norway supporters. The normally brilliant David Lammy was in the Guardian saying that Norway would "betray" Leave and Remain voters. Bridget Phillipson was writing in the Independent that Norway was "a fantasy". Last month, Jo Johnson argued that Norway was a "non-starter".

There's plenty of return fire in the other direction. Norway supporter Nicky Morgan has promised not to support a second referendum. George Trefgarne, writer of Norway then Canada, spends half his time on Twitter attacking anyone trying to secure a change in policy other than the one he has authored - whether it's Tony Blair or Dominic Grieve or the People's Vote.

On a purely strategic level, this is self-harming and short-sighted. If the People's Vote campaign fails, which is a perfectly realistic scenario, it needs Norway as the Plan B. Britain will be outside the EU, with a future relationship document which can be amended. The most important battle in politics will be to soften it so that it allows for Norway. By attacking it now, those People's Vote figures essentially rule themselves out that fight. Anything they say to support Norway in 2020 will be instantly met by a quote from their attacks on it now.

Worse, the attacks bolster the Brexit case. When People's Vote types complain that Norway offers no change to free movement, for instance, they are undermining their own demands for full EU membership - because that does not change free movement either. They're legitimising questions to which they themselves have no answer.

And all of this anyway has no function. To get Norway you need to pass a withdrawal agreement through the Commons. And that withdrawal agreement will have a backstop in it. The ERG and DUP will never accept that, so the only way it could pass would be with Labour support, which is not forthcoming. There is no immediate Norway threat to the People's Vote. As a mere question of priorities, the attacks on it are downright bizarre.

Norway must survive as a sub-optimal outcome in case of failure. But People's Vote seem intent, either by central decision-making or simply because lots of disparate voices think it sensible, to attack it.

Norway supporters make the same mistake. Fine, they don't like the idea of a second referendum. Very few people are entirely enamoured with the idea. But look at the options in play. May's deal is dead. Any deal looks unlikely. That leaves the People's Vote on one hand and no-deal on the other. You may not like either option, but there is no comparison in terms of severity.

No-deal will pulverise this country economically, while pursuing an extreme plan with no mandate, amid hard-right rhetoric about immigration and xenophobia. It is arguably the most extreme proposition ever made in mainstream British political debate. And it is real. It must be stopped at all costs. There is no greater patriotic priority.

That means that there should be no attempts to undermine campaigns opposing it. They are allies, not competitors. And you should never attack so comprehensively that you're unable to later offer support if your own preferred model fails.

We truly are in the era of purity politics. Political campaigns, on both sides of the divide, seem increasingly unable to understand the language of compromise, cooperation and tolerable sub-optimal outcomes. In politics, you can pursue your ideal goal while also maintaining the possibilities for a maximised negative outcome. You can simultaneously fight for what you want while limiting the damage of what you don't. Any married couple understands this strategy. It is remarkable that seasoned political campaigners are unable to do so.

This is more than just a tactical instruction. It is the basis upon which a healthy democratic society operates. A culture in which people cooperate with other political groups for mutual advantage is one which understands basic norms of civilised disagreement.

The winner-takes-all, zero-sum assessment of politics, in which the only true allies are your fellow tribal members, is just base Trumpism, whether it comes in reactionary, moderate or progressive variants. It is a political attitude which undermines the values of the society it is trying to salvage.

Norway and People's Vote have more in common than divides them. It's about time they started acting like it.

Ian Dunt is editor of Politics.co.uk and the author of Brexit: What The Hell Happens Now?

The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.

Week in Review: A circular firing squad of stupidity

Just when you think there is no further your expectations can fall, they find a way to surpass them. It's hard to imagine any two political figures behaving with less conviction or decency than Theresa May and Jeremy Corbyn this week. We must have truly done something terrible in a previous life to deserve this.

At any other time, you'd presume that we'd reached some sort of nadir, a basement dungeon of political decency, beyond which it was impossible to fall. But this is Brexit, so they will invariably exceed themselves next week.

May's attempt to 'reach out' in the wake of her historic defeat this week was as self-interested and false as it was possible to imagine. She refused to make any changes to her proposals at all. She was not willing to change her policy in the slightest.

Instead, she appeared only interested in using the talks for short-term political advantage. A Downing Street statement was arranged for just hours after her invite, seemingly with the sole intention of pointing out to people that Corbyn had not attended yet. Those politicians who did attend talks - The Green's Caroline Lucas, the Lib Dem's Vince Cable, the SNP's Ian Blackford, and others - said there was nothing new on the table and that they wouldn't bother attending again unless something changed.

Corbyn saw how badly the prime minister was failing to live up to the moment and tried to match it. There is a kind of solidarity of irresponsibility between the two. Or perhaps it is a competition.
The Labour leader demanded that the prime minister "rule out" no-deal as a precondition for talks.

This is a standard tactic of parties who do not want to engage. It's equivalent to when governments demand a terrorist group renounces violence before entering into talks with it. It treats the ultimate aim as a precondition of holding negotiations to achieve it.

These talks are a way to stop May from allowing no-deal. They are a chance for opposition parties to get her to pull on the brakes. But there is no point simply demanding that as a precondition of holding the talks at all. That is a party political game.

Even if May said she ruled out no-deal, it would be a meaningless promise. No-deal happens automatically on March 29th as a result of the Article 50 notification. It is the default outcome. To stop it, we need a parliamentary majority for something. That could be a motion demanding the government petition for an extension to Article 50. Or it could be legislation to hold a People's Vote, with an attached extension. Or perhaps a new mandate for talks on customs union and single market membership, again with an attached extension provision.

Even if we were simply to revoke Article 50, we would still need a parliamentary majority. The European Court of Justice ruling allowing the UK to unilaterally cancel Brexit stated that it had to do that in accordance with its constitutional arrangements. And the Gina Miller case, back in the halcyon days of 2017, showed that governments cannot use the royal prerogative to overrule a decision which has been taken by parliament. In this case, parliament voted to trigger Article 50. So either by a motion or a piece of legislation - there is a lively legal debate on exactly which - there needs to be a majority even to cancel Article 50.

Of course, none of this really matters. Whether Corbyn holds talks with May or not is immaterial. She refused to give the talks meaning, because she ruled out making any changes to her policy on the basis of them. And he ruled out taking part in the talks by saying he would not participate unless she made the changes in advance. This has been an utter waste of our time.

They are the most inadequate, self-interested, unimaginative, unprincipled, irresponsible party leaders in living history. There is no thesaurus in the world which could contain all the descriptions of their failures. In a moment which requires towering political figures, we're lumped with them: a prime minister with the intellectual status of a pebble and an opposition leader with the cerebral qualities of crumbled paper.

It cannot possibly be any clearer that these two figures have failed the country and are incapable of living up to the historic moment they find themselves in.

It is now up to MPs to take the lead. There are proposals floating around Westminster to give parliamentarians control over the Commons timetable. This could be attached as an amendment to May's motion on what she plans to do next. It is imperative that this now passes. There are no other routes of preventing disaster. Parliament must formally take control.

This moment has shown us what terrible political leaders we have ended up with. When things are quieter, we can ask ourselves some searching questions about how that came to pass. For now, there is just one cheerful thought. Their inadequacy might force a constitutional change which gives parliament lasting powers over the executive. That would be the closest thing we ever find to a Brexit dividend.

Ian Dunt is editor of Politics.co.uk and the author of Brexit: What The Hell Happens Now?

The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.

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