Parliamentary Control of Brexit is Easier Said Than Done

by Brendan Donnelly
Director, The Federal Trust

20th February 2019

A frequent criticism of the Prime Minister is that she prematurely triggered the Article 50 negotiations in March 2017 and did so without a realistic plan for their conduct. If she had waited longer and planned better, her critics contend, she could have negotiated a more acceptable Withdrawal Agreement and Political Declaration than the texts she is now having such difficulty steering through Parliament.  It is certainly true that Theresa May began the Brexit negotiations with no realistic plan. But no amount of delay and no amount of planning would have allowed her ever to achieve results acceptable to a majority of “Leave” voters and their Parliamentary sympathisers, let alone to the electorate or to Parliament as a whole. “No deal” was from the beginning the most likely outcome. The contradictory and unrealisable expectations reposed in “Brexit” could never lead to an outcome with which its partisans would be satisfied.

Within the “Leave” voting coalition of 2016, three main strands of motivation could be discerned. There were those for whom the regaining of “national sovereignty” through Brexit was paramount; if there was an economic cost for regained “national sovereignty” they were prepared to pay it. Others voted “Leave” because they rejected British participation in the future deepening of European integration, but were eager to maintain undisturbed present economic relations between the UK and EU; they were unconcerned about the precise institutional form of these future relationships. There were yet others who believed that it would both be possible for the UK to emancipate itself completely from the “shackles of Brussels” and yet retain intact the existing profitable economic relationships with continental Europe. This last group was almost certainly the most numerous among those voting “Leave,” not least because the leaders of the “Leave” campaign were zealous in encouraging them to believe that they could “have their cake and eat it.”

With the passage of time since 2017, the Prime Minister and her Cabinet have become less prone to recite the supposed economic benefits of Brexit in favour of the argument that they are executing the “will of the people,” as manifested in the referendum of 2016. The Withdrawal Agreement and the accompanying Political Declaration now proposed to Parliament are, however, proof positive of the incoherence and unrealistic nature of this claim. The Prime Minister has struggled desperately to please all of the three categories of “Leave” voter described above, and has not remotely succeeded in satisfying any of them. Those preoccupied with “national sovereignty” after Brexit dislike intensely the proposed transition period, the Irish backstop and the unclear future economic relationship between the EU and UK; those desiring minimal economic disruption after Brexit  are concerned by the lack of clarity about  the future economic relationship between the EU and the UK, by the shortness of the transition period, and by the rejection in the Agreement of the economically advantageous Freedom of Movement. Those who believed it would be possible to “have their cake and eat it” are incredulous that the Prime Minister has been unable, almost three years after the referendum, to achieve what they had been assured would be little more than an administrative formality of achieving a Brexit that maintained the economic advantages of EU membership while discarding its institutional obligations.   All of these objections are well-founded from the point of view of those urging them. All of them in their different and contradictory ways represent a fundamental failure by the Prime Minister to meet the basic expectations of “Leave” voters. Theresa May finds herself in the bizarre position of claiming to implement their will, when almost none of those “Leave” voters are content with the results of her negotiations.

Despite the nonsensical nature of the Prime Minister’s contention that she is implementing the “will of the people” there is a chance, a small chance but nevertheless a chance, that in the course of March her proposed Withdrawal Agreement and Political Declaration will be accepted by the House of Commons. If this does occur, it will take place because the Prime Minister, aided by the provisions of Article 50 of the Lisbon Treaty, has been successful in persuading MPs that the only real choice with which they are confronted is that between her logically and politically indefensible “deal” and a calamitous “no deal.” As matters stand, there is some force in her argument. The Commons has until now proved incapable of generating any further realistic choice for itself other than the binary one between the demonstrable absurdity of a Prime Minister’s “deal” which nobody wants and the disruptive “no deal” sought by very few in Parliament other than the fringes of the European Research Group. At its round of Brexit voting on 29th January, the Commons had the opportunity to go at least some way down the road of broadening its options by accepting the Cooper/Boles amendment instructing the government to seek an extension of the Article 50 negotiations if otherwise “no deal” seemed likely.  The Commons preferred however to accept the time-wasting and delusory Brady amendment (seeking “alternative arrangements” to the Irish backstop) and (by an only narrow majority) the non-binding Spelman/Dromey amendment deploring the possibility of “no deal.”

That eight weeks before automatic British exit from the EU so many (mostly Conservative) Parliamentarians should have been prepared to accept the further weeks of evident time-wasting implicit in endorsing the Brady amendment can hardly be taken as an encouraging sign. Nevertheless, there is scheduled to be a further vote in the Commons on 27th February and there have been many reports of possible amendments to the government’s proposed motion on that occasion, backed up by threats of ministerial resignations if the Prime Minister continues to flirt with the possibility of leaving the EU without any settlement. At least three questions remain, however, unresolved before the Commons can come at this late stage to play an effective role in the chaotic Brexit negotiations. The Commons must decide what new option it wants to create; it must have a way of imposing this option on an unwilling government; and it must find a way of ensuring that this new option does not fall by the wayside in accordance with the automatic operation of Article 50 on 29th March.

Revoking the process – or a new referendum?

It is a familiar comment that the House has been much better during the Brexit negotiations at articulating what it does not want rather than what it does. This lacuna has now become the most damaging check on Parliamentary ability to influence in any meaningful way the course of the Brexit negotiations. Unless on 27th February Parliament can clearly enunciate a substantive and not merely procedural new option it will have finally condemned itself to irrelevance in the Brexit saga. The Wightman case made clear that the UK has the right unilaterally to revoke the Article 50 notification, and it would certainly be open to Parliament to call upon the government to make such a unilateral revocation. But it seems highly unlikely that a majority of MPs could ever be mobilised for such a step. Much more plausible is the prospect of Parliament’s coalescing around the concept of a further referendum, most obviously one presenting a choice between the Prime Minister’s negotiated agreement and the abandonment of Brexit. Many MPs reluctant unilaterally to cancel Brexit could well find political cover for themselves in the argument that what Theresa May has been able to negotiate is so far removed from the promises of the “Leave” campaign in 2016 that it should not be implemented without a further consultation of the electorate. If the Labour leadership is prepared to instruct its MPs to vote for an amendment favouring a new referendum on 27th February, there is a reasonable chance of it being passed.

Even if an amendment in favour of a new referendum is passed on 27th February, it is important for its effectiveness that it be drafted and passed in such a way that it cannot simply be dismissed by the government. The Prime Minister knows that her Party could never tolerate and indeed probably would not survive the holding of a new referendum. She will be extremely reluctant to envisage a further popular consultation except under extreme duress. An amendment originally proposed by the New Europeans organisation and taken up by the Labour MPs Peter Kyle and Phil Wilson would legally link the passing of the Prime Minister’s proposed Withdrawal Agreement to the holding of a referendum. Its adoption would certainly mark an important shift in progress towards the establishment of Parliamentary control over the Brexit process. But it is worth recalling that the opportunities for the government to drag its feet on carrying out a new referendum would be considerable. Not only would the administrative arrangements need to be put in place but the EU27 would also need to accept an extension of the Article 50 negotiating period beyond 29th March.  It must be a matter of some doubt whether Theresa May would ever be allowed by her party to seek such an extension.

The willingness moreover of the EU27 to grant any extension cannot be taken for granted. An extension to hold a new referendum in which “Remain” was an option might well be accorded, as would a technical extension of a few weeks to permit the implementation for the Withdrawal Agreement. Less certain, but still probable, would be an extension to hold a general election. The EU27 have on the other hand no interest in accepting an extension simply to prolong the internal debates and feuds of the two main British parties. Unless the House of Commons has made up its mind to create in the coming weeks a further option by decisive action, the UK will leave the EU on 29th March with the Prime Minister’s deal having been accepted or it will leave that same day with “no deal.” The EU does not merely proclaim that “no deal” is better than a bad deal. It firmly believes this is the case and will act accordingly. Those hoping for last minute surrender of the EU on such central issues as the Irish backstop will certainly be disappointed.

Time to make your mind up

It will be clear from the above that for the House of Commons to make a decisive intervention in the Brexit process it will need rapidly to develop a much more coordinated and effective strategy than it has done over the past two and a half years. A majority, preferably a significant majority, will need to be assembled for a realistic course of action beyond the parameters of the Prime Minister’s decision-making hitherto. This realistic course of action will then need to be imposed on a reluctant Theresa May and very probably need the agreement of the EU27. All this needs to take place in little more than a month, at a time when the internal disunion and volatility of the two main parties are at a high pitch. None of this is impossible, but every day lost makes this benevolent concatenation of circumstances less likely. Theresa May will not yet have given up hope that at the end of March MPs will still be wrestling with the dilemma that she has imposed: of choosing between her absurd “deal” and a catastrophic “no deal.” This would truly represent an epic failure of Westminster Parliamentarianism, giving credence to the claim of Chuka Umunna and his fellow “Independents” that British politics is manifestly broken.

The past two years have been littered with startling episodes of delusion and incompetence from the government, of which Theresa May’s apparent belief that major concessions will be made to her at the European Council of 21-22nd March is only the most recent. But these two years have also been littered with startling episodes of prevarication and wishful thinking from Parliamentarians. Unless that pattern is broken on 27th February, the Prime Minister and MPs will find themselves confronted in late March with exactly the same toxic choice that they now face, between the “deal” and “no deal.” Some of her Cabinet colleagues are reported to believe that at the last moment she will draw back from the abyss of “no deal.” This blog began, however, with a reference to the Prime Minister’s having triggered the Article 50 negotiations without a realistic plan for their conduct. It is an optimistic assumption indeed that she has any realistic plan for their conclusion. A much-used phrase from current commentators is that of “no deal by accident.” This is over-generous. Much more likely is that the UK will leave the EU with “no deal” as result of the fecklessness and incompetence that the Prime Minister and her Cabinet have shown throughout the Brexit negotiations – and which they show precious little sign of remedying at this late stage.