15th August 2019
A path of least resistance
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.
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.
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.
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.
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.
Thank you for reading me on this new(ish) blog.
I expect to be blogging here more often, instead of spending time on Twitter.
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