After passage of Benn bill and Johnson’s sixth defeat, House of Commons is prorogued

Irish Taoiseach Leo Varadkar and British Prime Minister Boris Johnson after their meeting in Dublin yesterday.
Tuesday, September 10, 2019

Last night, in a tumultuous scene as opposition MPs objected and sought to block his departure, John Bercow, the Speaker of the British House of Commons, led government MPs to the House of Lords for the prorogation ceremony that terminated the parliamentary session that began after the June 2017 election and shut down Parliament until the Queen’s Speech opens a new session on Oct. 14. It was an extraordinary scene at the end of an extraordinary week.

But to say what happened over the past week in the House was extraordinary doesn’t begin to convey how unusual it was. Prime Minister Boris Johnson lost six votes — the first on a motion put forward last Tuesday by a cross-party coalition that included some Conservative MPs to hold an emergency debate on the need to avoid a no deal exit from the EU on Oct. 31; the second and third on a bill brought forward by that coalition last Wednesday that would ensure that a no deal exit would happen only if Parliament approved one and that otherwise Johnson would be required to ask the EU for an extension of the exit date; the fourth also last Wednesday on his motion for an early parliamentary election; the fifth yesterday on a motion ordering the government to publish its preparations for a no deal exit as well as its internal communications pertaining to the prorogation; and the sixth last night on another motion calling for an early election. No government in British history has ever been defeated in the first six votes it faced in the House.

As if that were not bad enough, to make things worse, Johnson, who presides over a minority government that, even with the support of the Democratic Unionist Party of Northern Ireland, no longer had a working majority in the House, directed that the party whip be withdrawn from the 21 Conservative MPs who voted with the opposition parties after last Tuesday’s vote on the debate motion. That means they are no longer members of the parliamentary party and won’t be reselected as Conservative candidates for a future election. Coming on top of the decision the previous week to prorogue the Parliament for five weeks, the decision infuriated many Conservative MPs and many others. Johnson’s brother Jo, who strenuously objected to the decision, resigned as a minister and MP, saying he was torn between family loyalty and the national interest. On Saturday, Amber Rudd, the Secretary of State for Work and Pensions and Minister for Women and Equalities, resigned from the government and gave up the party whip, telling Johnson in her letter of resignation that his sacking of the 21 was an “assault on decency and democracy,” “short-sighted,” and an “act of political vandalism.” Today, William Hague, a former leader of the Conservatives and now a peer, wrote an oped in which he said the expulsion of the 21 is “the most egregious action by a Tory party leadership in my lifetime.”

In a rambling press conference last Thursday, when asked if he promised not to go back to Brussels and ask for an extension of the exit date in the absence of a deal or a vote in the House by Oct. 19 to leave without a deal, as required by the legislation passed by the House the previous day, Johnson said, “Yes…I would rather be dead in a ditch.” Many would say that is the condition and location of his government after the defeats of the last week.

On July 24, standing in front of 10 Downing St. and speaking for the first time as prime minister, Johnson made it clear that his government would leave the EU on Oct. 31, with or without a deal: “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.” He said his government would seek to negotiate “a new deal, a better deal,” meaning one that didn’t contain the Irish backstop. But if the EU refused to negotiate any further – and, in particular, refused to remove the provisions in the withdrawal agreement designed to ensure that the border between Northern Ireland and the Republic remains open in all future circumstances – the UK would leave without a deal.

On Aug. 27, in anticipation of the Parliament’s return from its summer recess on Sept. 3, leaders of the Liberal Democrat, Scottish Nationalist, Plaid Cymru, and Green parties accepted Jeremy Corbyn’s invitation to meet and discuss how they might prevent a no deal exit. They agreed that when Parliament returned they would seek an emergency debate under House of Commons Standing Order 24, which allows a member to propose such a debate on a specific and important matter that deserves urgent consideration. If the Speaker allowed the debate, they would introduce legislation prepared over the summer by a cross-party group of MPs that would require the government, in the absence of an agreement with the EU on a deal or a vote by Parliament by Oct. 19 to leave without a deal on Oct. 31, to ask the EU for a three-month extension of the exit date to Jan. 31, 2020. 

The next day Johnson asked the Queen to prorogue, or suspend, the current session of Parliament in the second sitting week in September (this week) and to deliver a Queen’s Speech on Oct. 14 setting out the policy agenda for a new session of Parliament. Prorogation is neither unconstitutional nor unusual; indeed, it’s the normal way a session of a Parliament is terminated. But what is highly unusual about this prorogation is that it will last for five weeks – prorogations typically last for only a few days. Occurring as it does when the UK is on the verge of what is undoubtedly the most important decision it has faced since 1945, not surprisingly the decision provoked a firestorm of protest from MPs and many others.  

In a letter to MPs explaining the decision, Johnson noted the current session of the Parliament elected in June 2017 had lasted for more than 340 days (not counting days when it was in recess), which is longer, by a substantial margin, than any other session in almost 400 years. One result, he noted, was that parliamentary business had been sparse for some time. However, the letter made it clear that the real reason for the decision was his fear that any decision by the House to block a no deal exit would weaken his leverage in negotiations with the EU over a new deal: “I want to reiterate to colleagues that these weeks leading up to the European Council on 17/18 October are vitally important for the sake of my negotiations with the EU. Member States are watching what Parliament does with great interest and it is only by showing unity and resolve that we stand a chance of securing a new deal that can be passed by Parliament.” For Johnson, “showing unity and resolve” means showing the EU the UK is willing to leave without a deal, however costly that might be, if it doesn’t get the deal it wants.

Last Monday, the cabinet met and approved a decision to call a general election on Oct. 14 if the opposition parties succeeded in taking control of the parliamentary timetable the next day. Speaking in front of 10 Downing St. after the cabinet meeting, Johnson said there would be adequate time to debate Brexit, that he was encouraged by the progress the government was making in that regard, and that the chances of a deal had been increasing because the EU could see the UK wants a deal, has a clear vision for its future relationship with the EU, and is determined to strengthen its position by preparing to leave on Oct. 31 with or without a deal. But, he said, “if there is one thing that can hold us back in these talks it is the sense in Brussels that MPs may find some way to cancel the referendum. Or that tomorrow MPs will vote – with Jeremy Corbyn – for yet another pointless delay. I don’t think they will. I hope that they won’t. But if they do they will plainly chop the legs out from under the UK position and make any further negotiation absolutely impossible. And so I say, to show our friends in Brussels that we are united in our purpose, MPs should vote with the government against Corbyn’s pointless delay. I want everybody to know – there are no circumstances in which I will ask Brussels to delay. We are leaving on 31 October, no ifs or buts.” It was a public statement. But it was directed at a specific audience – the Conservative MPs who were considering voting with the opposition parties the next day in an effort to block a no deal exit on Oct. 31.

Later that afternoon, the cross-party group of MPs seeking to prevent a no deal exit published their bill. The European Union (Withdrawal) (No. 6) Bill, prepared over the summer by a group chaired by Hilary Benn, a Labour MP and chair of the House of Commons Exiting the EU Select Committee (hence the shorthand reference to it as the Benn bill), would give the government time to either reach a new withdrawal agreement with the EU at the Oct. 17-18 meeting of the European Council or, failing that, obtain the consent of Parliament to leave the EU without a deal on Oct. 31. It stipulates that if neither condition is met by Oct. 19, the prime minister must request an Article 50 extension to Jan. 31, 2020 and, if granted, must accept it immediately. If the EU proposes an extension to a different date, the prime minister must accept it within two days unless the House rejects it.

Last Tuesday, Sir Oliver Letwin, a Conservative MP and former minister, and 17 other MPs, including Philip Hammond, the Chancellor of the Exchequer in Theresa May’s government, David Gauke, the Justice Secretary in her government, Dominic Grieve, a former Attorney General, and several other Conservatives, filed a motion under Standing Order 24 for an emergency debate on the need to take all necessary steps to ensure that the UK doesn’t leave the EU on Oct. 31 without a withdrawal agreement. Toward that end, the motion specified that on Wednesday a member would be called upon to present the Benn bill, which would be given its Second Reading and, after possible amendments were considered by the Committee of the whole House, its Third Reading, after which it would be sent to the House of Lords for its consideration. Anticipating a possible effort by the government to run out the clock until Parliament was prorogued, the motion also stipulated that the House would not adjourn until the Speaker reported the Royal Assent to any Act agreed upon by both Houses.

As expected, the Speaker allowed the emergency debate and, after debating the motion submitted under Standing Order 24, which called for the presentation and consideration the next day of the Benn bill, the House approved the motion by a vote of 328 to 301. What was most notable, and most consequential, was the fact that 21 Conservative MPs voted in favor of the motion, along with 240 Labour MPs, 34 SNP MPs, 15 Liberal Democrats, 13 independents, 4 Plaid Cymru MPs, and the Green MP. Voting against it were 286 Conservatives, the 10 MPs of the DUP, three independents and two Labour MPs. Among the 21 Conservatives voting for the motion were Kenneth Clarke, the “father of the House” (the longest-serving member, having entered the House in 1970), who held a variety of ministerial portfolios in the governments of Margaret Thatcher, John Major and David Cameron; Letwin, Hammond, Gauke, Grieve, Rory Stewart, a minister in Theresa May’s government and candidate for the party leadership in June, and Sir Nicholas Soames, Winston Churchill’s grandson. Had not those 21 Conservatives voted for the bill, it would have been defeated. That evening, Johnson directed that the party whip be withdrawn from the 21, thereby evicting them from the parliamentary party, and made plans to table a motion the next day for a general election on Oct. 14.

Last Wednesday, as stipulated in the motion passed the day before, the House gave the Benn bill its Second Reading and then, after consideration of amendments by the Committee of the whole House, its Third Reading. The bill was approved in its Second Reading by a vote of 329 in favor and 300 against. (The only significant change from the vote the previous day was that Dame Caroline Spelman, a former chair of the Conservative party who had voted against the motion brought under Standing Order 24, voted in favor of the bill.) After consideration of various amendments (one of which, calling for a vote on the last version of the withdrawal agreement negotiated by Theresa May’s government in the event the exit date is extended, bizarrely passed because the government forgot to provide tellers for the ‘no’ vote), the House approved the bill in its Third Reading by a vote of 327 to 299 and sent it to the House of Lords for its consideration.

Following the vote on the Third Reading of the Bill, the House considered the motion tabled by Johnson for an early election on Oct. 14. The Fixed-term Parliaments Act 2011 provides two and only two ways that an early election – meaning any election earlier than the first Thursday in May five years after the previous election – can be held: If a motion for an early election is agreed by at least two-thirds of the whole House – i.e., by 434 or more MPs – or if a motion of no confidence in the government is passed and no alternative government is confirmed by the House within 14 days. It was a foregone conclusion that Johnson’s motion would fail to get the two-thirds majority and hence be defeated, and so it was, by a vote of 298 in favor and 56 against. (More than 200 Labour MPs and the 35 SNP MPs didn’t bother to vote.)

More than 100 amendments to the bill were put forward in the House of Lords and there was some fear that, through filibustering and the passage of amendments that would require the bill to be returned to the House of Commons in the parliamentary game of “ping pong,” the government would delay passage long enough to prevent approval by both Houses prior to prorogation. But there are only 234 Conservatives among the 775 members of the House of Lords, they are outnumbered by members belonging to the parties that support the bill, and a considerable number of the Conservative members support it as well. After two amendments put forward by Conservative opponents were easily defeated, the government accepted the inevitable and agreed that the legislative process in the House of Lords would be completed by 5 p.m. last Friday. Yesterday, the Lord Speaker of the House of Lords announced the Benn bill, now the European Union (Withdrawal) (No. 6) Act 2019, had been granted the Royal Assent.

Corbyn had previously said that Labour would not support a motion for an early election until the Benn bill had received the Queen’s assent and had become law, so last Thursday, after the defeat of Johnson’s motion for an election on Oct. 14 and in anticipation of the passage of the bill by the House of Lords on Friday and the Queen’s assent, Jacob Rees-Mogg, the Leader of the House, said the government would seek to bring another motion for an early election on Oct. 15. But in a reflection of the extent of distrust of the government that now exists in the House, last Friday the opposition parties, fearing that if there were an election before Oct. 31, Johnson might, in the absence of a new agreement with the EU, either find a way to obtain parliamentary consent to a no deal exit, perhaps by obtaining the support of Nigel Farage’s Brexit party which, based on the results of the European Parliament election in May, might win a number of seats or, failing that, might simply refuse to request an extension of the exit date and leave the EU on Oct. 31, regardless of the new law, agreed to reject any motion for an early election until a request for an extension of the exit date had been made and an extension granted.

Yesterday, before considering the motion for an early election, Dominic Grieve, one of the 21 Conservatives thrown out of the parliamentary party last week and hence now an Independent and a former Attorney General, put forward a motion to require the government to publish its “Operation Yellowhammer” preparations for a no deal exit and the internal communications in regard to prorogation sent by Dominic Cummings, Johnson’s chief Brexit strategist, and others at 10 Downing Street. The motion passed by a vote of 311 to 302.

The House then turned, in its last business before prorogation, to Johnson’s motion for an early election on Oct. 15. The rules of the House of Commons don’t allow the same motion to be brought forward a second time in a parliamentary session unless, in the opinion of the Speaker, the circumstances relevant to the motion have substantially changed. But the change in date and the fact that the Benn bill had, since the earlier vote, been approved by the House of Lords and had received the Queen’s assent were sufficient to allow the motion to be brought forward for debate and a vote. But in one crucial respect, the circumstances had not changed; the motion still needed a two-thirds majority to pass and it was still a foregone conclusion that it would fail to obtain a two-thirds majority. And indeed, in the last decision, before the House was summoned to the House of Lords for the prorogation ceremony, the motion fell far short of the two-thirds majority; 293 MPs voted in favor while 46 voted against it.

Now, after the parliamentary drama of the past week, attention will turn back to the question of whether the UK and the EU will agree on a “new deal, a better deal” at the European Council meeting on Oct. 17-18. Not much progress has been made thus far in that regard. But it is perhaps worth noting that, in the midst of the ongoing parliamentary drama, Johnson met yesterday morning in Dublin with the Irish Taoiseach, Leo Varadkar, and they had what both described as a “positive and constructive” meeting and made it clear that, although discussions are at an early stage, both governments are committed to securing an agreement between the EU and the UK. And after all his bluster in the House yesterday about refusing to obey the law that took effect with the Queen’s assent, it is perhaps worth recalling what he said in Dublin: “So if I have one message that I want to land with you today Leo, it is that I want to find a deal. I want to get a deal. Like you, I’ve looked carefully at no deal. I have assessed its consequences, both for our country and yours. And, yes, of course we could do it, the UK could certainly get through it. But be in no doubt that it would be a failure of statecraft for which we would all be responsible and so, for the sake of business, and farmers, and for millions of ordinary people who are now counting on us to use our imagination and creativity to get this done, I would overwhelmingly prefer to find an agreement.”

Let’s hope he means it.

David R. Cameron is a professor of political science and director of the MacMillan Center’s Program in European Union Studies.