Brexit: How’s That Working Out For You?

The U.S. Senate and House operate under their own arcane sets of Rules that are ratified at the beginning of every Congress (not that they can’t be changed by a simple majority), the British Parliament has customs and procedures. Ours were the basis of Robert’s Rules of Order but as Henry Martyn Robert was primarily interested in non-legislative meetings they’re not identical. In Britain they are codified in a ponderous tome (1097 pages!) called Erskine May and it is, as far as it goes, “official”.

Now the UK doesn’t have a written (meaning organized) Constitution but instead a hodgepodge of Law and Royal proclamations accumulated since the Magna Carta Libertatum in 1215. In 1844 Thomas Erskine May put together his compendium of the mechanics of Parliament which is sometimes followed and sometimes not because the only “real” rule is Majority of the Members of Parliament.

Thus it was not unreasonable for Theresa May to expect that she could get a 3rd (or 4th or 5th) vote on her Brexit Plan that has been crushingly defeated twice.

The political calculation was the impending prospect of a “No Deal” Brexit would scare the Soft Brexit/Remain Members and the threat of a solution that would involve closer ties to the EU would scare the Hard Brexiteers into supporting her.

In Britain they also have a Speaker of the House but mostly they just preside and exercise little or no power. John Bercow (a Tory mind you) is different.

Just as in the United States the Speaker has control of the agenda and on Monday he announced that, because of a 1604 legal precedent, he was not going to allow the Bill to be debated unless it was substantially different (no just re-titling it and slapping on a new date).

There’s a nice explainer by Adam Taylor in the Washington Post.

May has decided she can’t contest the Speaker’s ruling (Majority of Members you know) and has now decided the only alternative (because a solid Majority of Parliament has already voted against a “No Deal” Brexit) is to petition the EU for more time.

I’ll let The New York Times carry on from there.

May Requests Brexit Delay From E.U. as U.K. Government Remains in Crisis
By Stephen Castle, The New York Times
March 20, 2019

In a letter to European Union leaders, Mrs. May asked for an extension to the Article 50 negotiating process until June 30, raising the prospect that Britain could still suffer a disorderly departure in the summer. Reflecting that possibility, the British pound dropped on the news.

The prospect of any delay to Brexit, as Britain’s departure from the bloc is known, is a broad and humiliating reversal for Mrs. May. It is sure to infuriate many members of her Conservative Party, most of whom support leaving the European Union with no deal if necessary, and to reaffirm the cynicism, rampant among many of the 17.4 million Britons who voted to leave, that the elites in London would never let them have their way.

Her decision was sharply criticized by the opposition Labour Party and by some of her own lawmakers.

“Theresa May is desperate once again to impose a binary choice between her deal and no deal despite Parliament clearly ruling out both of those options last week,” the shadow secretary for Brexit, Keir Starmer, said in a statement. “What the government should be doing is showing real leadership, making good on their commitment to break the deadlock and secure an extension with a genuine purpose.”

Limiting the request to a short delay is the latest in a series of political gyrations from Mrs. May. Last week she said that, if Parliament failed to vote swiftly for her plans — which have been rejected twice — then Britain would face a lengthy delay and have to take part in European elections in May.

It was that prospect that triggered a rebellion from Brexit supporters in her cabinet on Tuesday — and reports of resignation threats — that appear to have prompted another retreat. “As prime minister, I am not prepared to delay Brexit any further than 30 June,” Mrs. May told lawmakers, prompting some speculation that she might resign if Parliament tried to force a longer extension.

A short delay will keep alive hopes among hard-line Brexit supporters in Parliament, who want to leave without any agreement, and they will be under little pressure now to approve Mrs. May’s deal.

Though the political paralysis over Brexit is in Parliament, the decision on whether to grant the delay lies with the European Union, whose leaders had been expected to agree to some sort of extra time when they gather in Brussels on Thursday. But that could now be in doubt.

Speaking to the German radio station Deutschlandfunk on Wednesday, Jean-Claude Juncker, the president of the European Commission, said that any decision by the European Union might have to be postponed until the end of next week, after fresh votes in Parliament. That could be on the eve of Britain’s departure, scheduled for March 29.

An extension could come with conditions, and European leaders stressed on Tuesday that they want to see some form of strategy in place to resolve the crisis. They worry that three months is not sufficient for Mrs. May to achieve success, and that she will be back to request another delay in the summer. That would be hard for them to accommodate for legal reasons, because Britain would not have participated in European elections.
…
Mrs. May, nothing if not stubborn, is not giving up on her unpopular blueprint for Brexit. Indeed, she excels at buying more time, and a delay would give her at least a couple of more weeks to resolve the crisis.

Like most everything else with Brexit, the process of requesting and granting an extension is no simple matter, which helps explain why it created such bitter divisions in the cabinet on Tuesday.

For legal reasons, a delay beyond the end of June would be likely to require Britain to participate in elections to the next European Parliament, making a mockery of British plans to leave the bloc.

But as another legal matter, a decision on whether to stage the elections — and effectively to go for a longer delay — must be made during the second week of April. The Brexiteers want to use the upcoming European elections as a sort of backstop, to borrow a phrase, to force Britain to leave, since it would be legally problematic to remain in the bloc without representatives in the European Parliament.

If a long delay would be awkward for Britain, it is not straightforward for the European Union either. It would mean the British enjoy the full rights of membership despite their efforts to leave the club

In that event, European officials are concerned that Britain might try to use its power to paralyze the bloc’s other business as leverage to extract more concessions on its exit deal.

You know, just the kind of thing the 1604 rule was meant to prevent. From the Post–

In his statement, Bercow suggested there had been past instances of the speaker of the House of Commons applying this rule, “notably in 1864, 1870, 1882, 1891 and 1912.” However, he said the initial precedent dated to April 2, 1604, when it was put into practice by Parliament during the speakership of Sir Edward Phelips.

The context for this rule is interesting. This was a complicated time in British political history — King James VI of Scotland had become James I of England and Ireland with the union of the Scottish and English crowns the year earlier. Josh Chafetz, a professor at Cornell Law School who has written about this moment in legal history, says the English Parliament was suspicious of the newly powerful Scottish royal and sought to codify its powers.

Phelips was viewed as close to the monarchy, Chafetz wrote on Twitter, so the 1604 decision “both forestalls the sort of dilatory tactics that keep the House from turning to other business and also makes it harder for the Crown to keep bullying members until they vote the way that it wants.”

The next year, incidentally, a group of dissident Catholics would try to blow up Parliament and kill James. The infamous Gunpowder Plot failed, and the perpetrators who survived, including Guy Fawkes, were sentenced to be hanged, drawn and quartered. Phelips was involved in the legal case against the plotters.

What will happen? As Atrios puts it-

From what I can tell from skimming the news… May wants to delay until June 30. The EU is saying “suck it, no” you only get until May 23. Macron is making noises about no delay without some more meaningful purpose behind it. May either will or won’t resign if she does not get her way on some unspecified thing.

Brexitpalooza indeed.