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Friday, 20 September 2019

That Would Be a Constitutional Matter

The UK Supreme Court will be ten years old at the beginning of next month. It was the creation of the Blair government (set up by the 2005 Constitutional Reform Act) and exhibited both the virtues and vices of its authors' political culture. It rationalised a clearly antique and inefficient system, scrupulously separating the political and judicial powers of the Lord Chancellor and making the court independent of the Justice Ministry, but it also saddled the court with a name that raised expectations derived from the fantasy of The West Wing and thus simultaneously politicised it. The political role of the US Supreme Court is determined by two features of the US system: the presence of a written constitution that requires interpretation, and the tension that arises between the two main branches of government, Congress and the Presidency, each of which has independent democratic legitimacy. Neither feature is relevant to the UK, despite this week's hearing on the right of the executive to constrain the legislature by proroguing Parliament.

In the UK, there is only one institution that has democratic legitimacy and that is the House of Commons. We the people do not elect the monarch, the House of Lords or the Prime Minister. The executive has an indirect legitimacy only by virtue of the support it enjoys in the Commons. We would regard any attempt by the unelected institutions of the state to constrain the Commons as undemocratic. This should logically apply to the executive as well as the monarchy or the Lords, and not just when the executive does not command a majority in the House. When the government "exceeds its powers" it is in effect arrogating authority that the Commons has not granted it. This was essentially the judgement in the Miller case, which obliged the government to seek parliamentary approval for the invocation of Article 50, on the grounds that only the Commons could approve an executive action that would effectively repeal existing statute.

A similar argument was made in a submission to the Supreme Court this week by John Major: that were there to be no restraints on the exercise of prerogative power in relation to prorogation, then in the event that the Commons approved a bill to abolish the executive's rights in this area, a Prime Minister could simply prorogue Parliament and thereby cause the bill to fail. Similarly, a Prime Minister who loses a vote of no confidence could use the 14 day grace period provided under the Fixed Term Parliaments Act to prorogue Parliament and thereby escape the consequences of defeat. Of course, this would only delay the inevitable reckoning, but it would also be a clear abuse of power that involved the executive impeding the Commons. The point generalises beyond the narrow issue of prorogation: prerogative power can effectively be used to constrain the Commons without its consent.


The long history of the struggle for supremacy between Crown and Parliament has seen an inexorable advance by the latter. This has been boosted by the moral authority of an expanding democracy, but it has also benefited from executive over-reach in the exercise of prerogative power. Each attempt to constrain the Commons has resulted in a counter-movement to restrain the executive. Much of this has taken the form of establishing precedents, thereby evolving new conventions. For example, after the debacle of the Iraq War and the 2015 vote on intervention in Syria, it is now inconceivable that a government would commit the UK to military action without the express approval of the Commons. This isn't explicitly mandated by law or even in the pages of Erskine May, but it is now commonly understood that the executive no longer has an exclusive privilege to initiate military action except in extremis.

The legal community's consensus on the current debate is, predictably, that the court should not be drawn into making judgements about political decisions. The alternative proferred by the likes of David Allen Green is that Parliament should legislate to formalise constitutional conventions around the use of prerogative power, rather than commit to the larger challenge of developing a written constitution: "Each prerogative power that can be exploited by the prime minister needs to be made subject to formal requirements such as the approval of parliament". Crucially, this acknowledges that authority ultimately must vest with the Commons, whether through explicit statute or contingent approval, which means that the Supreme Court should have little or no role to play. That the Court is now involved highlights the absence of a formal constraint on the executive, however it does not mean that the authority of the Commons can be ignored on a technicality.

The Supreme Court can pass judgement on secondary legislation created by the executive, but it cannot challenge primary legislation enacted by the Commons (though it can make a "declaration of incompatibility" in  respect of the European Convention on Human Rights). The Court itself is the creation of the Commons and thus subject to its authority. The question of "justiciability" in respect of the executive's exercise of the prerogative power of prorogation is something of a red herring. What matters is not existing statute but the intention of the Commons. The question is whether the authority to prorogue Parliament ultimately derives from the Commons itself. Given that the only answer consistent with democratic legitimacy is "yes", then it's hard to see the Supreme Court finding in the government's favour.

If the Court decides that this particular prorogation is unlawful, it may do so in a manner that does not question the executive's right to exercise prerogative power. In other words, it may simply find that the government made an administrative error and acted ultra vires. In theory, Johnson could recall Parliament and then, more carefully, prorogue it again. However, that would also provide an opportunity for the Commons to seize control of the order paper and pass a bill mandating that all future prorogations be approved by the House. If the Court finds against the government, it is still likely that legislation to formalise and make watertight this understanding will be passed anyway, either by this or a future parliament. The bottom line is that even if Johnson gets away with it on this occasion, the executive's prerogative power will probably be further reduced. He has recklessly led the Crown to another defeat.

Saturday, 14 September 2019

The Liberation of Politics

If the aim of the market is the liberation of the economy from democratic interference, then the aim of populist authoritarianism is the liberation of politics from institutional democracy. Many liberal commentators recognise the latter to be true, but few are prepared to accept that it is connected to the former: that the erosion of democratic institutions and norms is the direct consequence of the empowering of the market. Instead, the "assault on democracy" is presented either as a baffling malignancy that originates at both ends of the political spectrum or as a lack of virtue on the part of particular politicians. This leads to a fatuous bothersiderism in which, to pick a current example, Jeremy Corbyn's scrupulous observance of democratic norms, notably his belief that Labour should respect the referendum result, is held to be on a par with Boris Johnson's cavalier negligence and abuse of office.

For some, like Jonathan Freedland in The Guardian, the recent events in Parliament are evidence of constitutional resilience and the "political courage" of Tory rebels (he grudgingly accepts that Labour played a part in defeating the government), which he compares unflatteringly to the US: "The Republicans in the US Congress have failed that test, refusing to do their duty by restraining a president bent on trampling on the constitution. In the last fortnight, Britain’s politicians – or enough of them – have shown their US counterparts how it’s done." You wonder what it will take to convince him that the Republicans are perfectly happy with Trump and consider their duty to their class to be paramount. Freedland's solution for the UK is a written constitution - "one that would spell out the limits on executive might" - but this simply limits democracy to the dynamics of Parliament. It ignores that wider field where democracy has been marginalised by the market.

If Jo Swinson's belief that neither Johnson nor Corbyn is "fit for office" has any objective foundation, it is in respect of their willingness to be constrained by institutions. The flaw in her reasoning can be seen by comparing the fact of Johnson's disregard for democratic restraint in his proroguing of Parliament and the track record of Corbyn in his adherence to Labour's own constitution. The latter caution has been a major reason why the progressive reform of the party has been painfully slow, despite his democratic mandate. The idea that such a man would, if he became a caretaker Prime Minister tasked with extending Article 50 and scheduling a referendum, then abuse the office for party or personal advantage is simply not plausible (nor is the idea that Seumas Milne would be a leftwing Dominic Cummings). Swinson's judgement has all the analytical rigour of a playground taunt.

Many self-styled defenders of democratic institutions are guilty of bad faith, often elevating the interests of one particular institution or another to the detriment of wider democratic practice. Remainers who currently bang on about parliamentary sovereignty vis-à-vis the executive but also advocate the cancellation of the 2016 referendum result, as Swinson does, are an obvious case in point. While the decision to hold that public vote has since set the cat among the constitutional pigeons, it doesn't follow that it was a mistake, whatever David Cameron may now think, and it certainly doesn't follow that the difficulty in absorbing the result into the constitutional framework should in any way invalidate it. The most ridiculous position adopted by that framework's liberal defenders is the attempt to reinvent the monarchy as a pillar of democracy. It simply shows the weakness of other institutions when the Queen throwing imaginary shade is presented as a symbol of defiance.


The decay of our democracy is not merely the result of an institutional rot from within - the preservation of antique forms, the venality of the political class etc - it is also the product of those external forces that have deliberately weakened our political institutions in the process of freeing the economy from democratic control. As more and more of the management of public affairs has been ceded to the market, so the institutions of the democratic state have been both reduced in their scope and weakened in their ability to carry out their residual duties of care. This means that among the chief culprits in the erosion of democracy are those liberals who now loudly lament its currently parlous state. The MPs who speak carelessly of "coups" and insist that they are protecting democratic rights are often the same ones who have cheered privatisation and the rolling back of the welfare state.

The same MPs have also been vocal in supporting the media's presentation of the working class as desiring a backward-looking communitarianism that is culturally at odds with the current Labour party. This is both exaggerated, through a focus on a very narrow definition of that class (essentially white, small town and elderly), and also misrepresented in its nature, thus the defence of the welfare state and the appetite for industrial investment is elbowed-out in favour of expressions of bigotry. The motivating force behind contemporary nationalism is clearly a defensive response to neoliberal globalisation and the incursion of the market. This is why it should be seen as nostalgia for the postwar nation state in the round, rather than just nostalgia for a more culturally homogeneous and socially conservative society, and thus potentially more supportive of Labour's shift to the left than antagonistic towards it (whether Labour should indulge this nostalgia is another matter).

This counter-movement has been hijacked by the political right in support of a populist authoritarianism that further erodes democratic accountability, but it has also been enabled by centrists for whom the market is blameless and the working class's lack of virtue is an easy excuse to ignore its more profound concerns. In the UK, the coincidence of nationalism and disaster capitalism is presented by the liberal media as little more than a criminal conspiracy and its advocates as opportunists. The emphasis placed on "dirty money" and social media manipulation since 2016 hasn't helped. This serves to distinguish the political centre from the right in terms of virtue, but in doing so it obscures the responsibility of modern capitalism for these social tides. It also distracts from the normalisation of authoritarianism since the 1990s by the political centre's eager adoption of rightwing attitudes, such as the division of society into deserving and undeserving.

Liberals are happy to highlight some of the sovereigntist ironies of Brexit - how taking back control has seen Parliament and the judiciary denigrated, how freedom from the EU means kowtowing to the US - but few have been prepared to acknowledge that these reflect tendencies towards the weakening of national political institutions that predated 2016 and were significantly enabled through membership of the European Union. The point here is not just the EU's well-known "democratic deficit", but the wider removal of national institutions from democratic oversight, such as the independence of central banks and the subservience of national economic policy to market confidence. In the long run, the liberation of politics from democracy has been advanced mainly from the political centre, not from the right, let alone the left.

Friday, 6 September 2019

Against The Clock

So what have we learnt this week? First, Boris Johnson is going all-in on no-deal. The absence of any substantive proposals to amend the Withdrawal Agreement is clear evidence of this. To that end, marginalising senior anti-no-dealers within the Tory ranks, like Philip Hammond and David Gauke, makes sense. Symbolically, it marks the death of "One Nation Toryism" and its replacement by a more distinctly nationalist temper, which will be seen by many on the right as the fulfilment of Thatcher's project. The risk is that this not only alienates Tory-voting remainers, but that it also disturbs centrist Conservatives who fear the associated social and economic baggage of a sharp turn to the right. As Thatcher discovered, they'll suppress their qualms and support you while you're winning, but they'll drop you sharpish if defeat looms. Johnson knows he is running against the clock, hence his determination to meet the 31st of October deadline.

Second, it's now clear that Johnson always intended to call an early general election. The lengthy prorogation looks less like a wheeze to ensure no-deal by blocking MPs' counter-measures and more like a plan to create a benign environment, in which the government is free from scrutiny in the Commons and can rely on sympathetic TV and press coverage, before the start of the official election campaign. That most of Johnson's public commitments this week have been campaign photo opportunities suggests that Number 10's plan is to use the infrastructure of the state for partisan advantage. The prompt removal of the whip from 21 MPs suggests that he always intended to terminate the current parliament rather than compromise to maintain the government's slender majority. Again, Johnson's brutality in defenestrating veterans such as Ken Clarke and Nicholas Soames makes tactical sense, even if it does risk alienating some party members and makes it uncomfortable for his media supporters.


The general assumption is that a more Faragist party will not only recover the reactionary voters who peeled off to UKIP or abstained under Cameron and May, but it will also win a significant part of the "white working class" vote, particularly in Labour's "Northern heartlands". Of course there has never been a shortage of reactionary working class voters, but they have traditionally cleaved to the Conservative Party in any case. What's doubtful is whether the Tories can widen their appeal to Labour voters for whom patriotism and social conservatism are part of a bundle with an interventionist state and well-funded public services. Media safaris to the North of England will no doubt continue to find plenty of "lifelong" Labour voters who will now back the Tories because of Brexit, but there is little evidence to date of a sustained shift in voting patterns. The Tories are widely mistrusted among working class voters and that isn't going to change overnight, particularly when they are led by a man with a reputation for deceit and treachery.

Labour's declining support in the polls since April has largely been the counterpart to a rise in support for the Liberal Democrats. Given the binary choice of the next election, assuming it happens before Brexit, there is likely to be a shift back to Labour. Likewise, the oscillation in Tory support finds its counterpart in support for the Brexit Party. Johnson's primary aim is to attract that party's supporters back to the Tory fold. Attracting Labour voters is a secondary consideration, even if it suits the media to emphasise it as part of the anti-Labour narrative. Johnson needs not only to focus the campaign on Brexit, he also needs to convince leave voters who want no-deal that he can be trusted to deliver. To that end, he needs to rule out the possibility of a last-minute deal with the EU - in effect a revival of May's deal - hence he can now only commit to no-deal. The opposition's emphasis on Johnson's untrustworthiness is tactically sensible, as it helps shore up support for the Brexit Party, but this could be neutralised if Farage formally endorses him as part of an electoral pact.

Fighting an election before the 31st of October would give Johnson momentum, while also stymieing the possibility of a counter-revolution within the Conservative party. The clarion call would be less "kick out the bums", though that would undoubtedly figure, than the trusty old demand to "give me the tools to finish the job". A later election would be more defensive: save Brexit rather than win a clean break. If Parliament enacts the Benn bill, which would require Johnson to go cap in hand to the EU27 and request a further extension, there is a chance that he will simply resign. A caretaker government under Jeremy Corbyn, which now looks more likely simply because the Tories would see it as in their interest to abstain in a vote of confidence short-term, would then have to take responsibility for the extension, thus getting the Tory leader off the hook.


This would be an outcome that would satisfy both Johnson and Corbyn. The former could campaign against a Parliament that "stole" Brexit, while the latter could point out that the roof didn't fall in while he was in Number 10 and could (bizarre thought) fight the election as the incumbent Prime Minister. Though Johnson's failure to deliver Brexit by the end of next month would be an embarrassment, an extension of the Article 50 process to the end of January means that he can still advance the demand for a majority big enough to secure Brexit in an election in November. The belief that he would be fatally damaged by this setback ignores that he is a politician who routinely rises above his own failures and is incapable of embarrassment (witness his response on Wednesday to the demand he apologise for this "letterbox" comments). Johnson has the ability to survive blows that would fell any other politician.

What he doesn't have is time. This week he has fractured the Conservative Party. While it would probably hang together were an election campaign underway, it will almost certainly descend into civil war at the earliest opportunity. Johnson's hopes of reconstituting the party with Farage's foot soldiers may prove forlorn. Once a no-deal Brexit is formally achieved, there is no guarantee that this constituency won't fragment and disperse as it did in 2017, and until Brexit happens it will remain a thorn in his side. Johnson needs Brexit done and a quick election victory, preferably in October, to give him the five years it will take to rebuild the Conservative Party and to defray the likely costs and compromises that will arise from our departure from the EU. If the election is put off till November, or even December, he risks the Tory civil war erupting during conference season.

Wednesday, 28 August 2019

Under Sirius

The dog days of summer have been marked by alternating optimism and pessimism, suggesting the imminent arrival of some political earthquake that will shake the rotten fruit of the current parliament from its tree. On the right, the Johnson administration's "can do, will do" spirit has led to the suspension of critical faculties by the press and encouraged the belief that a general election is imminent in which the Conservative Party's key message will be the defeat of the Commons. On the broad left - i.e. including media Corbynites as well as sceptics - there is a fear that the Labour Party's commitment to campaign for remain has come too late, that the reselection of MPs is an unwelcome distraction, and that the party leader's limitations spell electoral doom. But underneath this gush of table-chat I sense a deeper pessimism on the right that belies the dream of a bright blue morning and an optimism on the left that is poorly reflected by the querulous commentariat.


Boris Johnson's "boosterism" appeals to the core Tory and Brexit party constituency, but it also exists in tandem with a deep fear, not so much of the EU or multiculturalism, but of an assault on the privileges of capital that have been built by the political consensus of the last forty years. As William Davies puts it, the motive force behind Brexit is the rentier alliance that reconciles mortgage-free pensioners with hedge fund opportunists: "Jeremy Corbyn terrifies them even more than the prospect of Remain, as they believe he will tax capital, gifts and inheritance into oblivion (they are less concerned with income tax as they don’t pay it). Where productivity gains are no longer sought, the goal becomes defending private wealth and keeping it in the family. This is a logic that unites the international oligarch and the comfortable Telegraph-reading retiree in Hampshire. The mentality is one of pulling up the draw-bridge, and cashing in your chips."

As Davies notes elsewhere, this fear finds an outlet in a metaphysical faith: "What’s emerging, therefore, is a synthesis of nationalism (which has always been anchored in metaphors, stories and memories of war) and neoliberalism, that could also be harnessed for purposes of an election campaign, in which the distinction between the Conservative Party and ‘the nation’ will be weakened like never before. What nationalism and neoliberalism share is a suspicion of empirical evidence, and a quasi-mystical faith in metaphysical properties of some constantly evolving collective spirit, where the former finds this in a given people, and the latter in the price system. Together, this provides a fearsome set of resources to silence (or ‘cancel’) dissenting voices, that present hard facts of what is going on, and the challenges facing the country."

This Tory millenarianism is theoretically fearsome, but I suspect it will prove much more problematic in practice. Not only does it depend on an unstable voluntarism that risks electoral boom and bust, but there are major contradictions between nationalism and neoliberalism. The most obvious is the necessary compromises on sovereignty that birthed Euroscepticism, which are likely to be highlighted by the issue of the UK's future relationship with the US. This is not just about asymmetric trade deals, but the inevitable constraints on independent geopolitical action that will arise by going all-in with Washington. While many on the right dismiss scepticism about US intentions as an "anti-West agenda", this ignores the strength of popular anti-Americanism in Britain. Yes, we largely enjoy the cultural products of the States, but this doesn't mean we assume they have our best interests at heart, let alone that we should adopt a servile position.


In addition, the commitment to a national agenda has to go beyond a temporary financial boost for public services or a more authoritarian approach to education. Insofar as nationalism is a winning electoral strategy in the UK, it is in the context of the postwar tradition of industrial and social development outlined by David Edgerton, not just patriotism and pageantry, and the current Labour party has a more credible offer in that regard than the Conservatives. Of course, Labour will still be vulnerable to the charge that it is unreliable on national security and soft on terrorism, but it always suffers this penalty in comparison to the Tories (yes, even in the Blair years) and there is probably little to be gained electorally by fondling scale models of Trident. Its fundamental message is overdue reform of the economic and social dispensation inaugurated by Thatcher and the maintenance in international affairs of a close and cooperative relationship with the EU, even if we are no longer a member.

The pessimism of the left shouldn't distract from this winning strategy, and the tendency to allow more superficial issues or tactical nuance to weigh heavily in debate should be taken as an acid test of seriousness. Labour has now firmed-up the rational Brexit policy that was always on the cards, and one that looks like the only credible alternative to no-deal. Instead of welcoming this, both centrist and centre-left commentators are still trying to move the goalposts. The current debate over how to avoid no-deal at the end of October has been both ridiculous and a constitutional insult. The idea of a government of national unity - that would alienate half the country and be led by some centrist hack - was always implausible, while the blackballing of Corbyn as an interim Prime Minister shows that Brexit is well short of being the prime concern for many of the political class.

Similarly, the excuses given for avoiding the reselection of MPs - that Labout should be fighting the government and that an election is imminent - are specious, particularly when they emanate from self-regarding and entitled members who have long ignored their constituency parties. There are always Tories to fight and, despite the Fixed Term Parliaments Act, a general election is always on the horizon. The idea that a possible no-deal exit in October means that the advance of party democracy should be deferred stands in contrast to the belief of centrist MPs in the immediate aftermath of the 2016 EU referendum, when politics was in ferment and David Cameron had just resigned, that that would be the optimum time to mount a leadership challenge against Jeremy Corbyn. They were not accused of "navel-gazing" but lauded for seeking to "save the party". Even more ridiculously, many of these same MPs proceeded to do their best to undermine their own party in the 2017 general election. As usual, the criticism of their self-indulgence by the media was muted.


We are now entering a period of crisis. Corbyn's decision yesterday to indulge the minor parties' plan to legislate another Article 50 extension now looks like a tactical masterstroke. With the not-entirely-unexpected news today that Johnson intends to prorogue Parliament to deny enough time for a bill, even Dominic Grieve is now saying that a vote of no confidence may be the only route ahead and that he would vote to bring the government down (the usual caveats apply). A vote of no confidence is now surely inevitable, even if there is as yet no agreement on who should head a subsequent caretaker administration, so the moment of truth has arrived for the minor parties, miscellaneous independents and the handful of Tory rebels. But will they seize the day? I suspect that some, for whom an election will mean the end of their political career and who have been garlanded by the media for their "principled stand" (against Corbyn as much as Brexit), will once again demur. In the words of the poet:
There will also, Fortunatus,
Be those who refused their chance,
Now pottering shades, querulous beside the salt-pits,
And mawkish in their wits,
To whom these dull dog-days
Between event seemed crowned with olive
And golden with self-praise.

Saturday, 10 August 2019

Turn to Stone

The legal commentator David Allen Green has suggested that statues should be erected outside the Palace of Westminster to honour Gina Miller, John Bercow, Dominic Grieve and Yvette Coper for their "genuine regard for parliamentary democracy in the face of aggressive, authoritarian populism". As he made this suggestion on Twitter, he isn't being entirely serious, however that hasn't stopped furious leavers taking the bait and performatively replying with aggressive, authoritarian populism. The serious point here is the clash between popular democracy and the parliamentary kind, and Allen Green can certainly be criticised for being dismissive of the former, but what he is really talking about is the more recondite struggle between Parliament and the executive. This, rather than the will of the people, has been the defining feature of Brexit since 2016. However, his belief that there is an equivalence between the four named individuals in this regard strikes me as questionable.

For all Grieve and Cooper's bill-amending efforts, which have been extensively covered by the media and repeatedly trailed as the silver bullet that will kill the Brexit beast, we are still in a situation where the executive can use the Commons order of business to ensure a no-deal outcome at the end of October simply by sitting on its hands. The government may even be able to employ the misbegotten Fixed Term Parliaments Act to achieve the same end in the event of a vote of no confidence, prompting much wringing of hands over the possibility that the Queen might have to intervene and sack Boris Johnson as Prime Minister. While Miller's & Bercow's interventions, the first to establish that Parliament had to vote to invoke Article 50 and the second to allow a vote on an amendment to a government business motion, have both reduced the executive's prerogative authority, this shift in power to Parliament has not been built upon.

Contrary to excitable claims, MPs have not "seized control" of the Brexit process. What MPs have done is repeatedly block the negotiated Withdrawal Agreement presented by Theresa May, however that achievement reflects the government's loss of its majority in 2017 rather than any constitutional power-shift. While the new Johnson administration is in no better a position as regards support in the Commons, it has the advantage that it is (at least publicly) happy to accept a no-deal outcome. The idea that no-deal can be blocked, as opposed to merely deplored, by an amendment moved by Grieve or Cooper looks increasingly fanciful. Not only does the government retain control of the order paper, but potential Tory rebels know that a general election is likely within the next six months and therefore their parliamentary careers are on the line. With no Commons majority for soft Brexit, revocation or a second referendum, the benefit of another amendment that merely prolongs the agony is unlikely to outweigh the personal cost.


Though MPs have voted narrowly against no-deal in the past, they haven't voted for any positive action that would oblige the government to extend the Article 50 notice period beyond October or submit to a second referendum. The only realistic hope of achieving either, and thereby stopping a no-deal crash-out in the Autumn, is a vote of no confidence in the government. The realisation of this has led to the marginalisation of the People's Vote campaign and the semi-retirement of Alastair Campbell, which is no bad thing, but it has also produced the ridiculous idea that such a vote could, indeed should, lead to the formation of a government of national unity led by a backbencher such as [drum roll ...] Yvette Cooper. That this is an attempt to blackball Jeremy Corbyn is clear enough, even before the usual suspects in the media start imagining a cabinet featuring the likes of Heidi Allen and Jess Phillips.

What the feverish media speculation has tended to ignore is that there will always be enough Labour MPs opposed to such an administration to prevent one being formed. This includes not only those who actively want to see Corbyn installed as Prime Minister, but many Corbyn-sceptic Labour MPs who understandably believe that any Labour government should be preferred (it's in their job description, after all), and that's before you consider the historic connotations of a "national government" in the minds of Labour party members, the contradiction of a "unity" government that alienates half the country, and the risk that such an elite coup would further undermine democracy. With the leadership opposed, the suggestion of a coalition is necessarily a proposal to dismantle the Labour party, so it isn't going to happen. By constitutional convention and the terms of the FTPA, the Queen would have to invite Corbyn, as leader of the opposition, to form a government if Johnson's administration loses a vote of no confidence and cannot win another within 14 days, though this might become irrelevant if Johnson then moves for a general election.

Corbyn's opponents will insist that he cannot command the confidence of the House, and that is undoubtedly true today. Even if every Labour MP obeys the whip, he will still have to rely on the support of the smaller parties and at least a handful of Conservative MPs to form an administration and progress any substantive business on Brexit. The Liberal Democrats have already indicated that they believe him to be beyond the political pale, much as the DUP have, though given that they are a deeply dishonest and self-interested lot, they could change their minds. The SNP have made their quid pro quo clear, and Labour look likely to agree to it. A minority Labour government could survive if it were to commit to promptly securing an Article 50 extension and a conclusive referendum. Whether there should be a further attempt at renegotiation with the EU27, or what the referendum options should be, would have to be debated.


Alternatively, a Labour administration might simply secure an extension and then move for a general election itself (it might be obliged to do this anyway if a Commons majority cannot be found for the renegotiation proposal). The Tories would probably be secretly pleased with this outcome, as it would allow them to shift the blame for Brexit not happening onto Labour. The choice in such an election would presumably be between an immediate no-deal (i.e. the Tories would have to commit to terminate the extension early or leave themselves vulnerable to being outflanked by the Brexit party) and a Labour proposal to renegotiate and submit to a second referendum on a deal versus remain basis (i.e. excluding a no-deal option). There would be an informal agreement for SNP support (they'd support a minority Labour government in return for another independence referendum), but there would be no kind of deal with the Liberal Democrats.

The problem for Jo Swinson and her merry band of pranksters is that the electorate is sophisticated enough to vote tactically. This will help the party in Tory-Lib Dem marginals, where they can expect to pick up Labour votes (as in Brecon and Radnorshire), but will count against them in Labour-Tory marginals. They may end up with more seats on a barely improved total vote, as they did in 2017 (the first past the post system does sometimes work in their favour), but they will be less likely to hold the balance of power than the SNP. That said, the one possibility is a coalition with the Conservatives. That might look wildly implausible given their stance on Brexit, but they could possibly forge a marriage of convenience on the basis of a second referendum that offered the binary choice of no-deal versus remain. Given their congeniality during the 2010-15 coalition, and bearing in mind the ideological congruence of the Orange Bookers and the Britannia Unchained crowd, both parties might be able to live with such a compromise.

What this speculation suggests is that MPs in favour of soft Brexit or no Brexit should vote against the Johnson government on a Labour confidence motion and then support a minority Labour administration. That's the only realistic route to a renegotiation with the EU27, and also the only route to a second referendum that doesn't offer the no-deal suicide pill. The Liberal Democrat strategy is high-risk and reckless. It could ensure no-deal either by delivering an electoral victory to the Tories or by forcing a polarised referendum that might play out as an echo of 2016, despite the very different leave prospectus. This might mean tolerating Jeremy Corbyn in Downing Street for some months, but Labour wouldn't be in a position to move contentious (non-Brexit) legislation and once the terms of the second referendum were agreed, the government would probably move for a general election to be scheduled (possibly for the same day as the referendum). There's a way out of this madness, but it doesn't involve a government of national unity and it will absolutely require the marginalisation of the Liberal Democrats. I doubt there will be a statue erected to Corbyn at the end of it, however.