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.

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