Mr Corbyn writes a letter

15th August 2019

A path of least resistance

(Source: Wikipedia)

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What, if anything, should make one make of the letter sent by Jeremy Corbyn, the Leader of the Opposition, to other party leaders and senior parliamentarians?

This is not a party-partisan blog and many have Very Strong Opinions about Corbyn and the state of the party he currently leads.

But from the perspective of law and policy, the letter contains a significant offer, and it should be taken seriously.

If your objective is either to stop Brexit or to avoid a No Deal Brexit there are now few options still available before the United Kingdom is set to depart the European Union by automatic operation of law on 31st October 2019.

The main reason options are limited is that the current government, under a new prime minister, is committed to the United Kingdom leaving on that date in any circumstances.

In this situation, any further extension to the Article 50 period (or even revocation) would be complicated.

Requesting extensions is an executive act – in particular, it is the prime minister (and cabinet) who would instruct the United Kingdom representative to the European Union (UKREP) to make the request or accept an offer of an extension.

(This is what happened with the Article 50 notification and the two extensions to date.)

As it is an executive act, it is difficult for a parliament (even one committed to avoiding “No Deal” in principle) to get round.

The prime minister has the key to that door and, as of today, nobody else does.

This problem for those opposed to No Deal, however, can be solved in two ways.

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The first, and hardest, is for parliament to somehow enact mandatory legislation before 31st October 2019 obliging the prime minister to instruct UKREP to make a request for an extension (or accepting an offer of an extension).

This would replace the executive’s legal discretion with a legal rule with which it has to comply.

But this would not be straightforward.

In any circumstance it is difficult for contentious legislation to get through both houses of parliament at speed.

It is almost impossible to do in the face of a government opposed to that legislation.

And, as the legal blogger Spinning Hugo explains, such a course of action would here also probably require amendments passed by majorities to parliamentary procedures.

And also, there may be various changes needed to exiting Brexit legislation.

This means there are a lot of difficult things to align in a short period of time on a matter of immense public controversy.

The required legislation passed in the face of an opposed executive is not impossible, but it is unlikely.

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The second, less difficult way is for those opposed to a No Deal Brexit to take control of the executive.

(This assumes that the current prime minister does not flip on the issue, which cannot altogether be ruled out.)

This means it would be straightforward for a new prime minister to make an extension request.

And as the government normally has control over the parliamentary process, any necessary statutory changes would also be far more straightforward.

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The Corbyn letter sets out a practical and plausible way how the second approach can be carried out.

Two useful boxes are ticked – a general election would be (likely to be) acceptable to EU27 as the basis for an extension, and the commitment is to this being a one hit wonder administration before a general election, with no other policy commitments other than obtaining an extension.

Anyone whose opposition to a No Deal Brexit (or to any Brexit) is an absolute priority must find this proposal attractive.

Some will aver that a further referendum is preferable to a general election.

Others will be Meat Loaf opponents of a No Deal Brexit (or to Brexit) and say they will do anything, but they cannot support a Corbyn-led government.

(And Corbyn’s supporters are just as much Meat Loaf Remainers if they cannot support an alternative figure leading a government of national unity (or GNU) for the purpose of an extension.)

Corbyn is the Leader of the Opposition and so if the current government fails to win the confidence of the house of commons then, constitutionally, he is entitled to first dibs at forming a new ministry.

Again, this is not to say that there could be a better alternative prime minister, and a majority put together by other means.

But Corbyn’s offer is the easiest approach and it requires fewer things to align.

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Will it happen?

One recurring problem with Brexit is that the good is the opposite of the best, and purist positions are maintained where compromise would be more sensible.

And many would be offended at the prospect of a Corbyn-led government in any situation, and so would prefer a No Deal Brexit under the current government.

That is a matter for politics (and politically there is merit in a hostile view, and the record of the main opposition party on anti-semitism, for example, is dreadful).

But from a non-partisan practical law and policy perspective Corbyn’s offer is, as of today, the path of least resistance to avoiding a No Deal Brexit (and also to avoiding Brexit itself).

Anyone for whom stopping either a No Deal Brexit or Brexit altogether is an absolute priority should support it – at least until another viable option comes along.

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28 thoughts on “Mr Corbyn writes a letter”

  1. Thanks David – as informative, interesting and objective as ever. Very helpful and I wish everyone opposed to a hard Brexit or indeed any Brexit, would read.

  2. Agreed.

    Don’t much like the idea of a Corbyn – led Government but it’s certainly preferable to No Deal.

  3. Completely agree – the fact that others don’t seem to wantg to consider this seems to be purely for their own ppolitical gainm and to try and avoid gain for Corbyn. If they are serious about stopping Brexit thisis reidiculous and they should work ouit haow to make this work in the short time available.

  4. A common sense approach putting logic before emotion to save a looming disaster acknowledged seemly by all but the most ardent Brexiteers. However looking at the majority of Twitter posts following Corbyn’s tweeted letter, sadly most seem to want to follow on lemming like over the cliff edge behind Johnson who clearly has no intention of meaningfully engaging with the EU – not that it is even now possible. Extremely sad!

    The UK used to be held up around the world as a beacon to aspire to, today it has become a laughing stock. Attempting to out-Trump Trump.

  5. Not a fan of Corbyn but it’s good to finally see something that can be described as leadership (on Brexit) from the leader of the Labour Party.

  6. This isn’t going to work. It is designed to be rejected.

    The issue is that replacing Boris Johnson requires Remainer MPs to unite behind someone. Whoever replaces Boris Johnson is either a stop-gap PM like Ken Clarke or Margaret Beckett, or the effective leader of the pro-EU group. Corbyn, by making the offer, is making it clear he won’t fall in line behind anyone else. Swinson won’t jeopardise the possibility of forming a critical part of a Remain coalition by supporting someone from the very party she is trying to take votes from.

    MPs wanting to avoid No Deal should have voted for the WA.

  7. Thank you for this interesting blog. Would if be easier for Parliament to amend the UK Withdrawal legislation and make revocation the default option on the exit date? This would nearly certainly push the government to request an extension and call a GE. It would remove the threat of no deal. It might be easier to pass through Parliament than a GNU with Corbyn at the helm which Tory moderates will find difficult to accept. How difficult would it be to amend the exit legislation in this limited way?
    My second question is whether it is possible to make Corbyn premiership really watertight? What if he did not do what he says and instead engaged in long negotiation with the EU rather than calling a GE and resigning? Can this be prevented?
    Many thanks.

  8. I can understand the lack of trust in Mr Corbyn, but in practise his reign would be even more tenuous than Mr Johnson. Given that Parliament can prevent free action by Mr Johnson, surely it could prevent any alteration by Mr Corbyn from a pre-agreed course of action.

  9. Thanks. I actually thought Corbyn’s letter really wasn’t too bad. Probably the first constructive thing he has done to actually seek to ensure a no deal Brexit doesn’t happen. Hopefully the other anti-no-dealers (including the anti-Brexit-in-all-circs people – like me!) will recognise that this is the best way to ensure no no deal.

    As ever your analysis is clear and it’s interesting to see the different takes on this issue between DAG and Jo Maugham. I think on this one you are right.

  10. The idea that Labour, the official opposition party, could *in any circumstance* accept any other party “leading” such a caretaker Government is an utter impossibility. So much so that any pretence otherwise that would stop this proposal is an implicit agreement to leave with No Deal.

    If Labour cannot be “trusted” to govern in such a limited fashion as to not actually be governing *at all*, then the only resulting conclusion would be that the party – despite being the largest party in the country by membership and the second largest party in the House of Commons – is existentially finished. If any member of Labour agreed to it, they’d effectively be signing the death penalty for the entire party.

    Claiming it’s the same level of intransigence to not compel your entire political movement to the grave as to not just make do with whoever it is that’s leading the Opposition so they can do the *one* job you’ve agreed upon needs to be done – and is literally their constitutional purpose to stand in to do it – is a massively flawed comparison.

  11. A very good post indeed. This is an issue of priorities. The Johnson Government has made leaving the EU on the 31 Oct an absolute priority. Whilst they have paid lip service to securing a deal with the EU, their behaviour indicates they have no intention of making the compromises necessary to achieve such an agreement. This behoves everyone, who sees avoiding leaving the EU without a deal as an absolute priority, to make the compromises necessary to topple the Johnson Government. Given the circumstances the Corbyn proposal is a sensible way of resolving the issue. The Liberal leader needs to think again, very hard, about this

  12. A strong point in favour of this approach is that if Mr Corbyn “misbehaves himself” and misuses his caretaker status (which would need careful definition) there’s an easy majority in the House of Commons to remove him.

  13. Yes … and no.
    Yes the surest way for no deal to be stopped is a no confidence vote and a new executive to take control of the Article extension.

    But Corbyn is not the man to lead the new executive, and moreover he and his cabal know that. He and his cabal know that none of the Tory “no no dealers” can ever accept him as prime minister. So this is just another CabalCorbyn manouvre to stop a Goverment of National Unity to come into being – and, yet again, to facilitate Brexit. If Corbyn really wanted to stop Brexit he would get behind the GNU, but Brexit is and always has been of little importance to him. Power is everything to Corbyn, and in this at least he is the mirror image of the other shyster currently squatting in No 10.

  14. Article rightly focused on practicality. As a matter of fact Jo Swinson tabled a HoC motion of no confidence in the Johnson PMship and was not backed by Jeremy Corbyn or Labour.
    Never mind, back to practicalities, of the Corbyn letter requiring real votes in the House for the path of least resistance to work. If Corbyn cannot get Kate Hoey and Caroline Flint and a few other Labour MPs in the same lobby with him, this is all academic.
    Regardless of posturing now, LD votes in the House for ONC, GNU and against No Deal Brexit are totally assured. That is not true of Labour MPs’ votes but I suspect they are more likely to vote that way if they can be tribal knowing the LDs whom certain parts of Labour detest are not formally part of this.
    So a LD NO now actually helps block No Deal Brexit..

  15. I was going to comment that the last three years show how completely useless most MPs are, capable of virtue signalling at best, and having absolutely no idea how to wield power having been infantilised by the EU controlling every aspect of our politics, but thought better of it. Then Aditya Chakrabortty at the Guardian tweets “When this debacle is all over, books will be written on how the ageing greybacks of Remain spent three years sobbing on TV sofas about leaving the EU yet seemingly not a moment on planning how to stop it. The fundamental unseriousness and mega ego of these people drives me mad.” So, in a first for me, I agree with Aditya Chakrabortty.

  16. Cynical genius from Jez: if it’s accepted then it will be Conservative rebels that get it over the line which will hurt Cons. and if it’s rejected, Cons will be tarred with no deal and Lab can wag their finger at all of the other no deal parties.

    I wonder if LDs could agree to support Corbyn in a 1st attempt to form GNU having a first go but only if he agrees to support another potential leader in a 2nd attempt if the first fails.

  17. Why not let parliament go on until 2022 with:
    A Royal Commission to deal with electoral fraud and related issues.
    Another to deal with a new UK constitution.
    Another to deal with income inequality.
    And a referendum in early 2022 once the options are set out.

    This would need a star chamber of Leaders committed to No-Deal, led by Corbyn.

  18. There is a very big problem with what Corbyn has proposed. It’s not just reaching out to LibDems (and SNP) which is what people have focused on.

    He has to (and has) reach out to moderate Tory MPs. To get their support to run a General Election. So what happens in the General Election? A number of people who want to stop No Deal will either have to campaign on a manifesto that they disagree, make personal pledges to disregard parts of their part manifesto, or switch allegiances.

    And at the same time, in order for Labour to win that GE and go on to hold a 2nd referendum, they are going to have to be targeting the same seats in order to get over the line.

    I agree with other comments that this is an offer that is designed to be rejected, and allow them to blame others for rejecting it.

    Whilst we’ve seen a 2nd referendum rejected in votes previously, it still seems to me that the only one policy interim government that can work is to form it in order to run the referendum, and then a general election after that is resolved.

  19. Everything you have written is clear and without ambiguity and if this was a clear and unambiguous situation it would be fine. I think it will take more than that though.

    Apart from purely dogmatic principle and a basic lack of trust I don’t think LD would stand in its way if it was thought to be successful. The problem I think is in convincing those Conservative MPs to vote behind a Corbyn coup (that is how their party will position it).

    Dominic Grieve and one or two others may do if it is the absolute final last gasp but the numbers may not be there.

    Labour Leave MPs will not in the main fall behind this unless they’ve already declared so. Many have not. There are about 5 votes between winning the No Confidence vote and losing it.

    That, I think, and I have no knowledge, is behind the somewhat naive call for the Mother and or Father of the House to be the caretaker.

    I do think that thinking on party lines will surely lose everything.

    1. I respectfully disagree – does not the entire issue fall to be decided on party lines?

      The prospect of power will unify Labour MPs for a VONC and, perhaps, re-cast them as the advocate of ‘remain’ in the ensuing general election.

      In this way they can steal both Boris Johnson’s lunch and that of Mrs Swinson.

      I seem to be the only person who reckons Jeremy Corbyn’s strategy advisers (aka Keir Starmer) have, and are, playing a poor hand very well.

      By comparison, Boris Johnson appears to have left himself little or no room for manoeuvre. Had Jeremy Hunt been elected, he would have seen off a VONC by seeking an extension; Boris Johnson will find that very difficult.

  20. Thank You again for an informative blog.

    I agree that Corbyn’s letter must be seriously considered and its fundamental approach be supported by any opposed to an exit with no deal (for certain) and opposed to any form of exit (possibly).

    I say ‘possibly’ for the latter group even though it seems obvious that even Remainers, such as me, should favour even an exit with a deal than the current default of an exit without one. Corbyn’s letter actually proposes the base case strategy being for Labour to lead a “time-limited” Government that would “aim” to call a General Election, in the campaign for which Labour would commit to a further referendum in which remain is an option. It would be cynical to suggest that the temporary Government could have to rule for a long period because there would be significant pressure from the UK Parliament and from the EU for that period to be brief. Indeed, the EU will need to know for how long the extension will be required and will want either the shortest possible or a very long one! I am not cynical, so will not guess how ‘temporary’ the new Government would be.

    My own reluctance to support, in my very limited way, Corbyn’s proposal stems from two concerns:
    1. A General Election is not fought on a single topic, even one as important as Brexit. So, the result of a GE could not be taken as a clear message upon view of ‘the people’ upon the UK’s membership of the EU.
    2. He does not make clear whether his plan is to attempt to negotiate a new agreement with the EU during the extension period or, if Labour were to win the proposed election, when leading a permanent Government. So, what would be the option(s) to ‘remain’ in the referendum that Labour would commit too?

    Considering my two concerns alongside the fact that Labour have pointed out that Johnson’s efforts to negotiate a better deal are futile, because the EU have said the current one is final, I think that Corbyn could better have gained cross-party support by proposing a different strategy:
    – Motion of no confidence.
    – Temporary Government (led by someone elected by MPs possibly).
    – Extension to exit to allow for a confirmatory referendum with two clear choices: Exit with current deal vs. Remain. (This addresses both EU insistence that negotiations are over and the UK Parliamnet’s resistance to no deal.)
    – Mandatory adherence to the referendum result.
    – General Election as soon as Parliament have initiated actions to implement the referendum result. This takes the EU membership question out of the GE, even if the Brexit Party don’t like the referendum result!
    This strategy would address Brexit more rapidly. It may not give Corbyn and Labour the GE that they long for as soon as they would like but, I think, it gives them a better chance of winning when that event does come; not that I’ll really care who wins once the Brexit question is resolved!

  21. A pragmatist, so I agree, and I would hold my nose and support a Corbyn led caretaker government. But from the political point of view we should be aware Johnson would probably, in secret, love it. He could go into a GE saying “There; if you don’t vote for me you’ll get a Corbyn government, possibly supported by the LDs”. That will rally a lot of Conservative troops. Not saying it will be enough, but it would be a damned close run thing.

  22. I feel I must agree that this is the easiest route, relatively, to stopping a no-deal brexit. I hope everyone fighting no-deal lets the reality of the current state of affairs take precedence over their own preferred end outcomes. This should be an opportunity for those who want Remain/Revoke, People’s Vote, Customs Union membership or EFTA/EEA/CM2.0 to work together to ensure that we have only sensible outcomes ahead of us.

  23. There’s a host of things missing in this analysis. Most of all, it takes the EU for granted. The date of Oct 31 should signal that the time to do so has passed. Oct 31 is not just the end of the present extension, it is the end of the term of the current, outgoing Juncker commission. The issue of whether or how Brexit happens is designated as one that will be decided during the term of the outgoing commission. The Von der Leyen commission will deal with the fallout. Believing the UK will get extensions ad libidum is narcissitic at best. Both in the EP and among the electorates in the EU27, people are sick and tired of Brexit tying up so many resources and so much attention at the expense of other problems. The mood is rather to have an end in horror than a horror without end.

    There was an election during the negotiation period, wasting precious time while effectively changing nothing. To believe that the 27 will happily provide and extension for yet another one, which possibly will not create clarity either is naive. The UK’s had ample time by now. It’s shown time and time again that it will not use the time it has responsibly.

    Secondly, from a law blog, I would have expected a better separation of the executive and the legislative. A vote of no confidence in Her Majesty’s Government is a vote of no confidence in Her Majesty’s Government. Corbyn may be the leader of the opposition, but that does not necessarily make him the person most likely to have the confidence of parliament – and that’s the customary criterion: ” the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government.”

    Corbyn has repeatedly pushed for an election despite already blowing one, when he could have pushed for a referendum. And he’s put into the Labour manifesto actually wanting to end freedom of movement – a policy that precludes full EU membership. As such, he can neither be trusted to actually leave, nor to actually stop Brexit by the only way to achieve that goal reliably – revoking Article 50. It’s not the fault of others that Corbyn has equivocated and procrastinated time and again.

  24. @David “Some will aver that a further referendum is preferable to a general election.”

    Indeed, and some want a further referendum, followed by a general election. The disadvantage of such an approach is that it can’t be time-limited in the same way as Corbyn’s proposal. If an interim government gives itself the task of simply requesting an extension, then calling a GE, then you could more or less guarantee that it needs to hold office for no more than two months.

    If an “interim” government was formed with the intention of holding a second referendum as well, then it would need to be in office for an absolute minimum of six months, and that minimum is based on the assumption that the parties of which it is comprised immediately agree on a second referendum question that will get through parliament, and meet the approval of the electoral commission. The parties who are likely to be involved in such a government don’t seem to be particularly good at agreeing on things, so six months looks rather optimistic. A better guess would be that such a government might need to hold office for closer to a year. It is impossible to but a maximum limit on the time it would need because it is perfectly possible that we could move from a situation in which we have a government committed to withdrawal that can’t get a withdrawal bill through, to one where we have a government committed to a second referendum that can’t get a second referendum bill through.

    1. @ Augustus Fink Nottle
      It depends on the role of the Interim Government. If that role is limited solely to securing an extension from the EU so that a General Election can be called and to caretaking the administration of public affairs until the election is conducted then it could be accomplished in a couple of months. The last Teresa May election took only six weeks from time of calling

      1. I thought that was what I said in the first para of the post you were replying to. Obviously I am not expressing myself as well as I hoped :(

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