by Brendan Donnelly
Director, The Federal Trust

11th September 2019

Parliamentary opponents of Brexit, and in particular opponents of “no deal”, are understandably encouraged by the passing of legislation designed to prevent the Johnson government from taking the UK out of the EU without a Withdrawal Agreement on 31st October. It would be going too far, however, to assume that a “no deal” Brexit has been definitively averted. The majority of MPs publicly or privately opposing Brexit should be giving urgent thought  on how to consolidate their advantage when Parliament reassembles in mid-October. It is obvious  that Johnson and his advisers will be actively seeking ways of thwarting the Parliamentary legislation, even including a simple refusal to obey the clear provisions of the law itself.

Opponents of the Johnson government sometimes run the risk of misreading his determination in the same way as he and his government appear to misread the determination of their negotiating partners in the EU. Johnson’s repeated refusal to contemplate in any circumstances asking for an Article 50 extension is one from which he can never resile if he wishes to remain Prime Minister at the head of a still viable Conservative Party. The anti-European radicalisation of the Conservative Party, especially of its membership and supporters in the media, has continued at a dizzying pace over the past six months. Johnson has promoted this radicalisation and is now its victim. If he were to obey the instructions of the Commons to seek an Article 50 extension next month, the Party – his power base – would splinter irreparably, to the direct and enormous advantage of Nigel Farage and his Brexit Party. No doubt Johnson would prefer to avoid direct contravention of the law passed against “no deal” last week. But the dilemma in which he finds himself is reflected in the increasing desperation of the shifts and stratagems which he and his advisers appear to be contemplating in order to bring about Brexit at all costs by 31st October.

Two tactics under consideration by the Johnson government are particularly illuminating in this context: the possible reversion in the Withdrawal Agreement to a backstop confined to Northern Ireland and the government’s refusal to nominate a British candidate for the incoming Commission. The first is the only remotely plausible path to achieving a consensual Withdrawal Agreement by 31st October and in the topsy-turvy world of Brexitery might count as a British negotiating success, even if the backstop’s extension to the whole of the UK was originally a British proposal. But the current state of anti-European hysteria within the Conservative Party is such that it almost certainly cannot tolerate a Withdrawal Agreement of any kind, particularly one still with even a modified Irish backstop. The very few Labour MPs who might now be willing to vote for a Johnsonian Withdrawal Agreement would be greatly outnumbered by the Conservative backbenchers refusing to do so. Philip Lee was entirely correct in his bitter parting observation that in today’s Conservative Party “Conservatism” is simply measured by “how recklessly one wishes to leave the European Union.”

No extension, thank you?

Of equal significance for the likely future course of the Brexit negotiations is the refusal to nominate a British Commissioner before 31st October. Despite naïve and ignorant protestations to the contrary from unnamed government sources, the legal and practical effect of this refusal is trivial. It is, however, a definite reminder to the EU 27 that if by any chance the Johnson government can be prevailed upon to request an extension, then that government will be a sullen, uncooperative and destructive partner as long as Johnson or indeed any other likely Conservative is at its head. It is by no means clear that the European Council will be willing to tolerate such an uncongenial and unreliable associate beyond the end of October. There is much less tolerance than there was in Brussels and national capitals of the self-absorbed British political incoherence that Johnson is widely seen as embodying.

It follows from all the preceding considerations that the continuation in office of Boris Johnson until 31st October will place a considerable question mark over the avoidance of “no deal,” despite the legislation adopted by Parliament. He will mobilise every legal and political resource to avoid asking for an Article 50 extension. If he cannot be compelled to do so in the last ten days of October, the issue becomes moot with an automatic “no deal” Brexit on Halloween. Even if a contested court case eventually forced him to send a letter formally asking for an extension, it is far from certain whether the EU 27 would comply. From every point of view, those working against a “no deal” Brexit have an interest in ensuring that in the latter half of October Boris Johnson will no longer be Prime Minister.

Given the extraordinary convulsions of British politics witnessed in the early days of September, it is entirely possible that a vote of no confidence in the Johnson government can be won when Parliament reassembles. It will be critical, however, that an alternative government is then waiting in the wings. Otherwise a vote of no confidence will simply be a recipe for political chaos in the crucial last days of October, with Johnson clinging on to power for the succeeding fortnight and possibly beyond. The legislation passed to prevent a “no deal” Brexit last week was the product of intense cross-party collaboration. Such collaboration may well re-crystallise in a cross-party government to replace Boris Johnson’s in mid-October. The imminence of “no deal” at that stage certainly should shape opinions in a more constructive direction than was the case in the abortive discussions of late August.  

Caretaker of what?

But the constitution of such a cross-Party government can only be the first step towards any resolution of the Brexit impasse. This new government will need urgently to seek an extension of the Article 50 negotiations and to secure this it will need to convince our EU partners that it has a coherent strategy for resolving the Brexit issue in the extra time granted. There has been universal frustration within the EU at the self-indulgent frittering away of the past six months by the British political class. It is not yet clear that any better strategy exists for the employment of the next three, six or even twelve months by any new government. Amid the welter of self-serving fantasy emanating from the Johnson government over the past six weeks, one of its few sustainable arguments has been that many of those seeking an extension to the Article 50 negotiations have little idea what they hope this will achieve.

In so far as any consensus on the mandate of a cross-Party government exists among those likely to form it, it is for a “caretaker” government which will do little more than seek an Article 50 extension and hold a General Election in November or December. This is unlikely to prove an attractive prospect for the rest of the EU and it is certainly no clear path for the avoidance of Brexit or even the avoidance of a “no deal” Brexit. The interaction of the current electoral system with the fragmented state of party politics makes the result of any election this year impossible to predict. Another hung Parliament is an entirely plausible outcome, with “no deal” advocates from both Conservative and Brexit parties jostling for power against advocates of revocation from the Liberal Democrats, with the Labour Party perched uncomfortably in between, apparently committed to renegotiate the Withdrawal Agreement but then likely to argue against this renegotiated text in a later referendum. It is difficult indeed to imagine any plausible electoral outcome that will contribute in any meaningful way to solving the network of conundrums thrown up by Brexit. It is all too easy to imagine outcomes that will make matters a great deal worse.

A new referendum

An altogether more attractive prospect, both for the country and for our EU partners, would be for a cross-party government to stage a referendum before any General Election. The most logical choice would be between the present Withdrawal Agreement and remaining in the EU. This would do eminent justice to the consultative nature of the 2016 vote and would enable the government to ask the electorate for its views on the concrete results of a process which inevitably, when initiated in 2016, was largely aspirational and speculative. Either outcome now would provide certainty for both the UK and the EU, avoiding the chaos of a “no deal” Brexit, for which there is no Parliamentary or popular majority. There is a substantial existing body of opinion within the Labour Party favourable to a referendum, led by the Deputy Leader Tom Watson and the former leadership candidate Owen Smith. But it is interesting to note that a number of dissident Conservatives, most notably Oliver Letwin and (possibly) Philip Hammond, are now moving in this direction. Liberated of the shackles imposed by membership of a disintegrating Conservative Parliamentary Party, these expelled MPs now have an unusual opportunity to make a decisive contribution to the restructuring of British politics. It would be entirely appropriate if one of their number, such as Dominic Grieve, were the Prime Minister of the proposed cross-party government. The respect in which he is currently held would make him an ideal candidate for such a post. If he were to spend the next five weeks making the public case for a referendum before a General Election, his eloquence and authority would go far to convince many potential supporters of a new EU referendum that it is the best way forward for the country.

If a cross-Party government were to hold and win a referendum along the lines described, the UK political landscape would look very different. The European referendum of 1975 was an important forum for the softening of tribal rivalries between the major formations of British politics. A referendum in early 2020 might well have a yet more powerful impact on the dysfunctional workings of the UK’s current party political structures. It cannot be taken for granted that once a referendum had been fought and won the cross-party government would need to lay down its responsibilities. A new electoral system, a written constitution and greater regional autonomy are all projects to which the self-defeating Brexit project has given urgency and credibility. Those who fear that a new European referendum might leave a legacy of yet greater bitterness and disillusionment are not entirely wrong. If the UK does end up staying in the EU after a new referendum, there will be pressing tasks of political and constitutional reconstruction to carry out to heal the wounds left by five years of acrimony. A cross-party government set up in mid-October 2019 would be well placed to take the first steps along this difficult, but ultimately unavoidable path. Far-sighted politicians will wish to bear such possibilities for the longer term very much in mind. Those with a shorter focus may wish simply to concentrate on the overwhelming case for an EU referendum before a General Election; and the recognition that such a referendum is most likely to come about under a cross-Party government set up next month. Amid the encircling gloom, one step enough for them.