Parliament won’t be able to repeat Cooper I: only nuclear options remain

Rarely can there have been such a disparity between the apparent dullness of the procedural minutiae of an amendment to a technical Bill about Northern Ireland, and the breathless attention paid it by the political commentariat as there was this week. Wrongly.

They might as well not have bothered. In trying to find processes to avoid the government proroguing parliament in late October (processes which might not work anyway), a lot of people from MPs to journalists seem to be missing the wood for the trees.

Perhaps the best way of understanding why they’re wrong is to ask why they think the government might want to prorogue parliament then. The assumed answer is so as to prevent parliament from doing something to stop Brexit on October 31 – which effectively means a No Deal Brexit.

As an aside, in the unlikely event that there is a deal agreed (which presumably would be something very like the existing one with perhaps some minor tweaks to give a figleaf of political cover), it’s almost certain that the UK couldn’t leave on Halloween. The government isn’t allowed to ratify the deal not only until parliament’s ratified it but also until an implementation bill has been passed. That would surely take longer than the few weeks in October that parliament’s sitting.

However, much more likely is that there isn’t a deal. The question then becomes what could parliament do to express the undoubted majority opposed to a No Deal Brexit?

Taking a step back, we need to remember that the date of 31 October is embedded in both UK and EU law. Consequently, only a change to those legal provisions can amend what is now the default. Put another way, motions in parliament have symbolic value only and aren’t enough.

The fear or hope, depending on which side you’re on, is that parliament might be able to repeat the trick from earlier this year and pass a Cooper II bill, requiring the government to seek a further extension. The chance of this though is overrated. It’s far from clear whether the MPs can take control of parliamentary business as they did in April; the opening used at that time isn’t available now and MPs threw away the chance to repeat the trick via an opposition day debate motion last month. If you can’t introduce the bill, you can’t instruct the government.

That said, even if you can introduce the bill, there’s no guarantee it’ll work. May played along but only because she chose to. She could, quite consistently with Cooper I, have rejected the EU’s counter-offer of an extension and let the clock run out on April 12. Alternatively, she could have asked in such a way as to invite rejection. The Commons might command the PM but it cannot command the European Council. A Cooper II bill would struggle to tie down a government intent on leaving, deal or no deal.

So if parliament couldn’t block No Deal, why the fuss over prorogation? Good question. My guess is that it’s a mental distraction exercise among MPs who really don’t want to face up to the reality and remain – for now – to shadow-box within the confines of the Spring Brexit debates.

In truth, there are only two ways to stop No Deal, if the government is set on it. The first is to pass a Revoke Act. Unlike a Cooper II, this could be specific, leave no wriggle room and wouldn’t require consent from the EU27. The practical problem is that there’s almost certainly no majority for it. It’s one thing to kick the can or even advocate a second referendum; it’s quite another to revoke Brexit altogether without consulting the electorate. And of course, as with a Cooper II, it requires the rebel MPs to gain control of parliamentary business first, which may be hard. Even if they can though, it’d be better for the government to face the proposed legislation down than run and hide behind a prorogation because it’d almost certainly win the key votes.

The other option is a Vote of No Confidence. If you really don’t like the government’s policy, and you can’t change the policy, then change the government. This is the more likely route and may well succeed – although the natural consequence of MPs voting to bring down Boris (especially in October), is that they must be prepared to install someone else, and in reality that means Jeremy Corbyn. Corbyn surely won’t allow Labour to prop up any alternative administration and you can’t have one without either the Labour or Tory party. Time pressures mean that there couldn’t be an election before Brexit Day (though an election with Brexit taking place half-way through would be interesting!), so it really would be essential to vote confidence in someone else, if only to seek and gain a further extension.

Could the government prorogue to prevent a Confidence vote? I don’t think so. While it might be constitutionally (never mind legally) valid to prorogue to head off something that the Commons might do – which after all doesn’t change the status quo – it’s a different matter to seek to remain in power when it’s questionable as to whether you actually do have the confidence of the House: a key constitutional question. I’d expect that if a government tried it, the Palace would only agree to proroguing parliament after the No Confidence vote had taken place, assuming it failed – in which case, MPs would have effectively assented to it.

And that’s what it probably comes down to: No Deal or No Confidence. Any Tory MPs thinking of rebelling need to understand that to prevent No Deal they will very likely need to vote to put Corbyn into Number 10 to do so. All else will either not be enough or won’t gain the necessary support.

Will they succeed? I don’t know. I think such a vote would be extremely close. A such, I think that both the odds-against prices against Brexit occurring this year (2.6 on Betfair, 6/4 best-priced with bookies), and on an election next year are value – an election this year is certainly possible but it’d be in December if it arose out of a late October Brexit crisis: next year is more likely.

What is certain is that this autumn will be crunch time. We’re highly likely to get either Brexit delivered, one way or another, or a change of government. Both would have profound consequences.

David Herdson.