How Johnson can flop out on the 31st of October

The government of the United Kingdom is getting in a right mess over Brexit now. Parliament has passed a law, known as the Benn act which was intended to prevent a no-deal departure. Prime Minister Johnson describes this as a surrender act because his jingoistic base likes to use the terminology of war, and he wants something else to blame for his failures. The act is designed to force the prime minister to request an extension to the article 50 negotiation period, and it goes down to the detail of writing the letter for him. There are court proceedings in Scotland trying to establish whether the Benn act is watertight. I don’t think it is.

In general the Padfield principle stops ministers from circumventing or frustrating an act of parliament. They have to stick to the letter of the law and the spirit of the law. I don’t think that applies to the scenario I am thinking of.

Last month something curious happened when passing the Benn act. An amendment was proposed by Stephen Kinnock, the government was going to vote against it and there was only weak support for it from the opposition. A division (vote) was called and 633 MPs were all set to waste 15 minutes of their day traipsing through the division lobbies (that is around 4 person-weeks of parliamentarian effort per division) when something really odd happened. There were no tellers for the noes. The government had failed to put forward two people to verify the count, so the ayes won the division by default. This is how it works according to the Erskine May rule book.

The exact effect of the Kinnock amendment isn’t terribly important, the government was experimenting with throwing in the towel on a division on a topic that didn’t matter too much to them, just to check it would work. It did.

Lets have a look at that Benn act, and what happens after the extension request has been forced. For this we need to read section 3.

It is quite likely that the EU council will propose some other extension date. Maybe March 29th because we have done one of those before. Maybe they will pick a date that just makes a bit more sense for some obscure accounting reason. It doesn’t matter. All that matters is that some other date is picked so that we activate (2) and (3). The government can (and will) have a minister of the crown move a motion within two days “That this house has approved the extension to the period in Article 50(3) of the Treaty on European Union which the European Council has decided.”

This will be a government motion (moved by a minister) and as such the government would be expected to put forward two tellers for the vote. They have already established a solid precedent, during the approval of this very act, that the government can fail to provide tellers in order to throw a division that it would otherwise have won easily. The result of the division is recorded as a decision of the house. Such a decision seems wrong, but it is no less a decision than any other vote taken – we saw it pass an amendment into primary legislation. Overturning a division of the House of Commons is not something the courts can do, even if they think they should. Having decided not to approve the motion the government is then released from the obligations in section (2) and a no-deal Brexit awaits.

Buckle up.

I did ask my MP (yes, I can still write to the MP where I was last resident in the UK) to confirm that the government won’t do this. I will update this post with any reply.

Ways to avoid this: Firstly the EU could agree to the 11PM January 31st deadline. Then this scenario doesn’t arise (maybe some other one will, but this one doesn’t) as the government is automatically obliged to accept the extension.

It might be possible for tellers to be provided anyway. The process of choosing tellers is not exactly transparent, I don’t know if the opposition whips can leap in and provide tellers, or if the speaker can just pick a couple of MPs who are loitering in the chamber. All I know is that neither of these things happened for the Kinnock extension – but motivations might be a little sharper this time.

It might be possible to amend the motion, although I don’t entirely see how this helps.

Something might happen before we get there, relating to the Queens Speech or some other shenanigans that prevents the extension request (most shenanigans would end up in court and Padfield would be cited).

It was Lindsay Hoyle in the chair at the time of the Kinnock amendment (a deputy speaker does the committee stage) so maybe Bercow would have a different approach. You can watch the video of the event here. The confusion carries on into the next vote as MPs were in the lobby and didn’t know the division was off.

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Gabriel Webber
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Gabriel Webber

This isn’t quite accurate. The relevant clause of the Act says the PM has to accept a different extension unless “the House of Commons has decided not to pass a motion” approving that specified extension. Impossible to describe a situation with no tellers as a Commons “decision”.