by Brendan Donnelly
Director, The Federal Trust

28th March 2019

At the time of writing it seems unlikely that the Withdrawal Agreement will be accepted by Parliament on 29th March, the day originally set for the UK to leave the EU. Parliament has decided that in these circumstances it will hold a further round of voting on 1st April, in the hope of arriving at a consensus on Brexit after the indecisive votes of 27th March. It is entirely possible that on 1st April a majority of the House of Commons will vote for permanent British membership of a Customs Union with the EU or for a further referendum. This will bring great political satisfaction to those MPs who since the beginning of the year have been arguing that Parliament should “take control” of the Brexit process.

What is likely to be a small majority for a Customs Union or for a People’s Vote will count however for little on its own. Parliament will need a to find a way to impose its will on a government likely to prove entirely recalcitrant and, moreover, it will need to impose its will within the ten days until 12th April, the new date on which the UK is due to leave the EU if the Withdrawal Agreement has not been ratified by Parliament.

The votes taking place on 1st April will not be legally binding on the government, although Kenneth Clarke has said that he would be willing to support a Vote of No Confidence in the Conservative government if it set its face against the expressed wishes of a Parliamentary majority. Clarke presumably knows that the likelihood of Theresa May’s voluntarily being willing to accept and take the necessary steps to bring about either a Customs Union or a People’s Vote are non-existent. 254 Conservative MPs voted against a People’s Vote, 236 voted against a Customs Union and a staggering 157 voted in favour of “no deal.” Over the years of her premiership Theresa May has always regarded Brexit as an issue for resolution exclusively within the Conservative Party, an attitude well exemplified by the announcement of her early resignation to a group of Conservative MPs rather than to any wider audience. She will do her utmost to reject any injunctions laid upon her by the Commons to create an alternative option in addition to the binary choice she favours, that between her “deal” and “no deal.”

Quick legislative fix?

Hopes have been expressed that the Commons may find ways to enact legislation before 12th April, compelling the government to follow the preferred course of action advocated by Parliament on 1st April. These hopes seem optimistic indeed. When there is an overwhelming majority of MPs favouring a particular legislative initiative, for instance on matters involving national security, Parliament and the government can move very quickly. In this case, Parliamentary opinion would be split and the government would be opposing the new legislation. Rapid progress would be extremely difficult. Nor would Parliamentary legislation, whatever its content, be able to circumvent in eleven days the fundamental truth of the Brexit negotiations that the British government, divided and incompetent as it may be, is the only possible negotiating partner for the EU. Parliamentary desires for a Customs Union or a People’s Vote would need to be implemented in agreement between Theresa May’s government and the European Council. Such an agreement would pose significant problems for both parties.

It might be possible for the EU to agree quick changes to the Political Declaration which pointed more positively towards a Customs Union. This would however require positive and effective advocacy from the British government to bring it about. The European Council would in any event be rightly doubtful of the usefulness of any such changes. Some few Labour MPs who would be won over to support the Withdrawal Agreement by positive references to a Customs Union in the Political Declaration would be easily outnumbered by Conservatives now refusing to support the Agreement. More importantly, any desire by Parliament to hold a People’s Vote later in the year would imply the British government’s asking the EU for a longer extension of the Article 50 negotiating period. It is almost inconceivable that Theresa May would be allowed by her Party to do that, and even if she did so, it would hardly be in terms that would commend her request to the European Council.

Those European elections

The Council has made it entirely clear that a longer extension is dependent upon the UK’s holding European Elections on 23rd May. Some legal controversy has been generated by the precise form this obligation should take but such debate is futile. The Council has decided that British participation in the European Elections is essential for any extension of the deadline beyond 12th April. The Council is able and entitled to impose the conditions for extension that it wishes and this is one of them. Theresa May has made abundantly clear her opposition to taking part and this refusal is an enormous barrier to the extension that would be necessary for the organisation of a People’s Vote. It is hard indeed to believe that Theresa May is in any case now a person for whom the European Council would have sufficient trust and respect to negotiate with her a long extension period. Any proclaimed plans or timetables from her will be obviously worthless in her enfeebled political condition. From the other side of the negotiating table, Theresa May will always have it in her residual power to conduct the Brexit negotiations in such a tardy and unpersuasive way as to thwart (at least until 12th April) any Parliamentary preferences she finds unattractive.

No confidence

All the above goes to show that the seductive hope of Parliament’s “taking control” over the Brexit process is more easily enunciated than implemented. When Theresa May and her Ministers have complained that it was constitutionally inappropriate for Parliament to attempt to negotiate over the head of the Executive with the EU, their discontent was not unjustified. The roles of governments and that of Parliamentary assemblies are distinct, the first exercising executive and representational functions, and the latter legislative, representative and calling the executive to account. The two important corollaries of this division of roles are that the executive should act in a competent and credible fashion in external negotiations; and that if the Parliament finds intolerable the actions of the executive, that executive should be replaced. Theresa May’s government has clearly fallen short of its executive and representational duties. Tribal loyalty has prevented until now Parliament from drawing the logical conclusion from its manifest lack of confidence in the executive and replacing it with a more effective successor. To its shame, Parliament has preferred to engage over recent years in ever more arcane procedural manoeuvres, ever-changing deadlines and self-absorbed jockeying for party advantage. The temptation to continue doing so until 12th April will be great, but in the national interest it should be resisted.

Surprise has been expressed by some observers that share prices and the external value of sterling have not been more negatively affected by Brexit-related uncertainty. This relative market insouciance is usually based on a conviction that no responsible government could ever allow the UK to leave the EU in chaotic circumstances with “no deal” and that the British political system anyway contains enough checks and balances to prevent this from happening.  It cannot be overemphasised that this is a complacent and misconceived expectation. In a crisis situation, checks and balances can serve as blockages that enable seemingly unimaginable outcomes to materialize. Without the checks and balances, Mrs May would have imposed her deal. With the checks and balances, the UK is careening toward no deal. Nearly 50 % of the governing Party’s MPs voted this week for a “no deal” Brexit and the Prime Minister has never seen any more important task in her Brexit policy than the preservation of the approximate unity of the Conservative Party. If she cannot obtain her preferred option of the ratification of her negotiated Withdrawal Agreement, she has undoubtedly concluded that “no deal” is the next best option for her party’s internal cohesion. The major party of opposition, the Labour Party, is currently run by a clique of long-term Eurosceptics, who will not be unhappy to leave the EU on catastrophic terms that can be blamed on the Conservative government. This cynical calculation is accompanied by regular and unpredictable shifts in the Party’s position, entirely comparable to the volatility of the Prime Minister’s negotiating positions over the past three years. To imagine that in these circumstances the UK’s underlying political stability will guarantee the avoidance of catastrophic outcomes is heroic optimism or Pollyanna-like refusal to face the facts.

GNU time

If there is still a Conservative government on 12th April, the UK will inevitably leave the EU on that day with “no deal,” unless the Prime Minister has managed to persuade Parliament to accept her Withdrawal Agreement. Those in Parliament who believe that neither of these choices is in the national interest need to act and to act quickly by installing a government capable of acting in that national interest. This government can only be a government of national unity. There is no other alternative majority in the Commons to such a government. A General Election would provide no way out of the impasse. It would almost certainly lead to another hung Parliament with the two major parties fundamentally divided within their own ranks on the European issue. Nor would it be clear who would be Prime Minister in the crucial days leading up to the General Election. If Theresa May continued as Prime Minister even after losing a vote of confidence (a not unreasonable hypothesis, since her Party is by a long way the largest in Parliament), she might well refuse to ask for the extension necessary to ensure that the UK did not leave the EU on 12th April with “no deal.” To ensure that she is not in a position to do that, another government needs to be in place during the first week of April. It is to be hoped that responsible MPs are already preparing for this eventuality. It will be much easier for the Queen to replace Theresa May as Prime Minister after a lost vote of confidence if a plausible candidate, with wide cross-party support, can be proposed to her in short order.

The construction of a national government would be complicated in detail, but its principles of construction would be clear. Most of its supporters would be Labour MPs and it would need to be able to rely on the external support of the Scottish National Party. Liberal Democrats, Plaid Cymru, Independents and a minority of Conservatives would participate in the coalition. Ken Clarke perhaps could be a respected and consensual caretaker Prime Minister. If the Labour Party insisted on the Premiership it is unlikely that Jeremy Corbyn would be acceptable to the coalition partners, but Tom Watson, Yvette Cooper, Hilary Benn and others would be highly plausible candidates.  The immediate task of the new government would be to seek an extension of the Article 50 period, which would necessarily involve holding European Elections in May. The most persuasive argument the new government could and should deploy in seeking that extension would be an undertaking to hold during that extension a referendum between the Withdrawal Agreement negotiated by Theresa May and the option to “Remain.” Despite all the irritation and frustration caused by British negotiating tactics since 2017 the European Council would be unlikely to turn its back on a chance democratically to overturn what almost all continental Europeans see as an alarmingly irrational decision, damaging both to the UK and its partners. If there were a majority for a People’s Vote in the Parliamentary vote on 1st April, then that would provide a solid basis for the new British government and the EU to come rapidly to an agreement.

Since 2016, too many MPs have failed in their representative responsibilities, claiming to pursue the chimera of a nationally undamaging or even advantageous Brexit. No such Brexit exists, even if in various forms of it the balance between economic and political damage differs. MPs have pursued the Brexit chimera in deference to a dubious doctrine of the “popular will,” as manifested in the 2016 referendum; and because the interests of the two major parties seemed to exclude an honest recognition of the internal contradictions of the whole Brexit project. This equivocation by MPs has led us to the bewilderingly dangerous position in which we find ourselves, where two weeks before our present date for leaving the EU almost nothing more is known about the nature or even reality of Brexit than was the case three years ago. Much pseudo-Churchillian rhetoric has been generated on the Leave side of the argument in that period.  It is however worth recalling that when he became Prime Minister Churchill was not the leader of the Conservative Party and led a cross-party government. Many MPs will certainly think that this government has been sitting in post too long for any good it may have been doing. Since 1940 there has been no national crisis greater than this, or more unlikely to be solved by the traditional workings of party politics. MPs should now brace themselves to do their duty and give the country the only government capable of dealing rationally with the Brexit crisis, one of national unity.