The Cooper-Letwin Bill (expanded edition) – Waiting for Godot

What follows is an expanded version of an Article I wrote for the Guardian on April 2, 2019.

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When you break up with someone you love, you only see the things that aren’t them. Not her jokes, not her smile, not her taste and so on. In any case, things have been a bit like that consti­tu­tionally for the last three years. All of this around us is the country we are no longer — pragmatic, competent, cautious, somewhat sensible. All you see is force­fulness.

I say this because of the Cooper-Letwin Act — as you do if you’re a lawyer. The same charac­ter­istics we once associated with the country were its true brand values. Maybe a little boring — maybe a little cautious — but you know, competent. But unfor­tu­nately their bill is every­thing that we are and they are no longer. Techni­cally, it is the Swiss cheese of legis­lation – full of holes. And even if you forgive them, little or nothing of substance is achieved as a result. In fact, it’s worse — it’s a dangerous distraction from a very real crisis for the country.

Let me explain.

What the Bill seeks to do is give Parliament the right to force the Prime Minister to request an extension and the right to determine how long she should request an extension. That seems like a perfectly reasonable goal, right? Modest but desirable. And there is an important balance to be struck — when you are trying to get legis­lation through Parliament in the face of a government you perceive as hostile and a House that is strug­gling to agree on anything — between legis­lation that is modest enough are designed to win majority support and are ambitious enough to actually be useful. This is not an easy balance – I know this because I tried and failed.

But this bill gets that balance completely wrong. Let me briefly go through some of the criti­cisms.

The bill was published today and the idea is that the House of Commons will have parlia­mentary time tomorrow for the bill to be passed in the House of Commons and even — if all goes to plan — passed by the House of Commons. Let us ambitiously assume that it can be voted on by the House of Commons on Thursday, the House of Lords on Friday, and receive Royal Assent on the same day.

The first stage required by the Bill is that the Prime Minister must, on the day after receipt of Royal Assent to the Bill, make a motion requesting the Prime Minister to request an extension to a date of her choosing (which, however, the MPs cannot agree). Does the bill require Parliament to meet on Saturday or Sunday? We do not know it. Let’s say the appli­cation is postponed on Monday.

If this motion fails, the bill will no longer apply; that’s it. It would be even more damaging if it were over.

The bill is silent on when the Prime Minister must request an extension. And if it is not consid­ering an extension beyond May 22, 2019, but Parliament has forced it to request an extension until December 31, 2019, then what? Could she sit on her hands? In practice it could.

But let’s assume that she makes a request the next day, Tuesday. The EU Council actually doesn’t meet until April 10, 2019. However, it could agree to hold an emergency meeting and get back to us on Wednesday: “Yes, you can get an extension — but we think you need time to get yours to overcome national psychodrama.” So we extend until December 31, 2020, until December 31, 2020, when the transition period would otherwise have been extended, and only if you hold elections to the European Parliament.” What then?

Well, the bill is completely silent about what will happen if the EU – as it has announced – sets condi­tions for such an extension. For some inexplicable reason, the bill makes no provision for dealing with this scenario. And even if the EU came back to us with no condi­tions for an extension — highly unlikely as EU law appears to require us to hold these elections — just an extension to a date other than the one we had asked for in the bill , offer fall apart. It simply means that the Prime Minister must make another motion for the House to again agree to the Prime Minis­ter’s request for an extension — which makes no sense at all.

As of this writing, we have arrived on Thursday and are leaving the EU on Friday without a deal. How on earth can we solve these unanswerable questions in practice in two days? And what happens if the EU says a clear “no” to an extension – or if the condi­tions are unacceptable for Parliament? What happens in one of these worlds? There is a sublime silence about the bill.

It is not uncommon for parlia­men­tarians to introduce poorly worded bills. Drafting laws is a difficult task. But the real problem with this bill is not that it has some gaping holes. The real problem is that it’s a sideshow.

It’s taken almost three years of not deciding what we want — how do we want to move forward? If we want a refer­endum, what is that refer­endum about — a question that the confir­matory public vote Movement turned a blind eye? If Parliament does not agree to a withdrawal agreement, the only options remaining are No Deal and Revoke — who gets to make this decision (a question that this alter­native to the Cooper-Letwin Act aims to answer)?

These are the real questions. The country we once were – and the parlia­men­tarians they once were – would have stood up to them. But the Cooper-Letwin bill is a terrible, terrible distraction. I guess I should find it poignant. But when I think instead about the conse­quences for millions of people whose lives will be deeply damaged by No Deal and who will be betrayed by the incom­pe­tence of those they trust, it makes me angry.