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As the nights have drawn in and the mercury has dropped, thoughts – in my neck of the woods at least – have turned to that important festivity of the six month-iversary of the referendum. Even though we’re little over five months on, we’re starting to see the wave of events asking us to reflect on the vote and on 2016 more generally.
From my perspective, the key paradox is the mix of radical rupture and apparent stasis in the British political scene. On the one hand, we have had a fundamental change of direction in the UK’s engagement with the international system and a shaking up of the party political system. On the other, we have many of the old hands still on deck and – most crucially – we still have little sense of how those old hands will pursue Brexit.
It is little exaggeration to say that we know about as much on this now as we did on the morning of 24 June, i.e. hardly anything. Whether it’s the totemic incantation of “Brexit means Brexit” or the “have cake and eat it” notes spotted this week, there is only the sense that the cunning plan gambit has failed to materialise. Of course, this is not surprising, because there is no cunning plan, no way out – in practical terms – of both limited free movement of people and not limiting free movement of goods, services and capital.
Earlier in the autumn I thought that there might be some flexibility on free movement of people from the EU27, who have other reasons to think about stepping back from a maximalist interpretation, but this has closed down of late. This is due to a more general hardening of the position that negotiations can only take place under Article 50 and mutual reassurance that the UK cannot be given a pick-and-mix deal as a reward for departure. That’s not unreasonable, especially given the growth of concern about populism post Trump (and pre-Le Pen), and the general air of messing about in London.
As David Allen Green rightly pointed out, the fight that May has to deal with is more about how she manages public opinion in the UK than it is about the EU27. It’s pretty clear that the UK can go low or high into Article 50, either retaining the four freedoms or binning them all (broadly speaking): the 27 might prefer the UK to keep them, but will cope either way. Thus it is the domestic audience that matters, because the UK government – and, to a less extent, the other member state governments – that have to get any deal approved, either formally (in parliament) or informally (in their party, the press and – eventually – elections).
If we assume that the deal side of things is broadly fixed into the high/low options, then we might usefully consider that what May is now doing is applying Lukes’ third face of power. Since she can’t impose her preferences on the public (first face) nor control the agenda (second face), she’s instead going to try and change what people want.
This really came home during this week’s exchange of letters with Donald Tusk, who rightly pointed out that the EU27 await the UK to get going with negotiations, so any uncertainty over the status of UK nationals in the EU rests firmly at the UK’s feet.
This has been part of a longer-running thread, of refusing to confirm rights for EU nationals in the UK without first getting confirmation of UK nationals’ rights in the EU. This is bar-room politics at its worst, since all sides have international treaty obligations to protect these individuals, while the alternative of forced removal is not credible, even in these febrile times: so reciprocal guarantees will be forthcoming. But May presents the situation as having an ace in her hand.
Language matter here. As the bots keep telling me on Twitter, ‘expats’ are just ‘our’ migrants. Much of the British public has a problem with immigrants, but hardly anyone has a problem with expats. Since I assume May is a well-informed and thoughtful individual, I also have to assume that she knows full well what she is doing here and the simplest explanation I can see is that she is seeking to kick up a mess about ‘expats’ so that there’s an outcry from the media and her party to act to save them. And the only way she can do that is by granting reciprocal rights to EU nationals, which might well include free movement (assuming the ‘expats’ want that too – which I’m guessing they do from my passage through Malaga airport last month).
In short, May is seeking to reframe the public debate, so that the weight of the ‘people discussion’ falls on ‘expats’ rather than ‘immigrants’. And if you couple that to the growing sense that people might be more open to the trade-off of market access in return for freedom of movement, then you have a basis for the high deal in Article 50.
Whether this will work, or can work, is a different issue. The fight over Parliamentary approval of Article 50 notification has distracted many in her party and the press, but at some point this effort will get noticed and attacked. Then it will be a question of how skillfully May can defend her position, which has not yet been seriously challenged. Someone did note to me the other day that the Tories won’t want to eject May because that would mean a second Prime Minister without an election: given how high temperatures have risen in the party, even that might not be enough to stop another regicide.
This is, of course, the big news from the past week. The whole Farage/Trump/ambassador thing is little more than a febrile combination of unwillingness to follow protocol, mutual back-scratching and intentional destablising, while the Autumn Statement simply underlines that no-one in government really knows what Brexit means.
But the resumption of legal contests – now in the Supreme Court – is arguably much more consequential.
As readers will recall, Miller and dos Santos saw a clear defeat of the government position in the High Court, with all judges strongly supporting the line that Parliament has to pass an Act to trigger Article 50 notification to leave the EU. The government has appealled, and now the case will be joined by the Northern Irish action that was defeated earlier in the month in Belfast, with additional representations from the Scottish executive.
As an appeal, the government is more or less bound to follow the same line of argumentation as before, which it appears to be doing, so there’s a priori not much chance they’ll win.
One of the many things I’m not is a specialist on Parliamentary procedure, but I am very lucky that a couple of doors down from my office is Louise Thompson, who is such a specialist (and a very helpful colleague too). She pointed me to Griffith, the ‘seminal text’ apparently, who sets out the grounds for amendments. From this the following points are central.
Firstly, the key grounds of accepting amendments for debate (in this context) are, in rising order of seriousness, that: they don’t render all or part of the bill inoperative; they don’t delay the entry into force of the bill in England until a similar bill has passed in Scotland; they aren’t inconsistent with the bill as agreed by committee; and they aren’t relevant to the subject matter of the bill.
The first two grounds simply mean that an amendment to not invoke Article 50 wouldn’t be acceptable, any more than any effort to use Scotland to delay matters. This latter might come into play in the Supreme Court, if it decides that elements such as the Act of Union require Scottish approval and involvement (although this seems unlikely).
The inconsistency issue might matter more, although the government might be able to get to the committee stage with its text intact, especially if it’s as brief as indicated.
Thus the key test will be irrelevance. Assuming that the government draws the line as tightly as possible, then we’d expect the bill to be one with the title “to authorise the government to make notification under Article 50 TFEU”, ie nothing at all about the bigger process, only the very narrow triggering. The challenge to amenders would be whether they could add in any scrutiny powers for Parliament as part of that notification. At a first glance, the argument would have to run that the triggering power necessarily has to be linked to scrutiny, because of the wider consequences of notification, including the irreversibility of the process (which both the government and Miller have argued in their court submissions).
Which leads us to the second key point, namely that it is the chair of the committee who determines what is admissable, working on the advice of the clerk and the bill’s draftsman. Since we don’t know quite how this would be pitched, it’s not possible to be certain about who that chair would be, but the government would presumably want to have someone sympathetic to keeping the bill as proposed. Griffith does discuss at length the power of selection, but doesn’t provide a final answer on how definitive the chair’s power might be, beyond noting that “the chair is often wiser to yied” (p.82) to discontent in committee.
The picture that emerges from Griffith is that if there is careful drafting and a determined stance by the chair, then amendments will be very difficult to achieve. This, in turn, suggests that the government will have to be steely in this matter if it is to manage both remainers and hard brexiteers: it will be a key test of how much confidence the government commands in the house and (more importantly) in its party.
This matters because if amendments can’t happen, then the only active options open to remainers are to use the Lords (who are under warning about just this) to delay or amend, or to try and defeat the bill altogether.
Which brings us to Labour. Anyone reading All Out War, by Tim Shipman, will have been struck by the degree of indifference/incompetence/sabotage of the Remain campaign by the party leadership. Given the subsequent entrenchment of those same individuals – Corbyn, McDonnell, Milne – since the leadership contest, there is very little reason to suspect that Labour will put out any concerted effort to challenge – or even scrutinise – this bill. And without Labour, any Tory remain rebels will have a much weaker position.
Louise has now read this and came by to point out that this bill is likely to be heard by the House as a whole, rather than in one of the bill committees: as the Parliament page helpfully tells us, when this happens, it is the deputy speaker who chairs. This means that Paul Daly’s suggestion of PACAC chair Bernard Jenkin probably doesn’t fly, other issues notwithstanding, and that the selection process is out of government hands even more than otherwise, which might strengthen the hand of amenders.
These days, my bedtime reading consists of books on the EU referendum: The Brexit Club, Bad Boys of Brexit, Unleashing Demons and (currently) All Out War. All have provided another level of understanding to what happened over the past year or two, confirming some suspicions and challenging some assumptions.
Most strikingly so far has been the strategising that took place. From the Tate plot, to the Parliamentary manouvering on the Referendum Bill to the failed coup against Dominic Cummings, there are repeated instances of political actors working two steps ahead of their opposition.
Given the success that such an approach has had, and given the lack of apparent strategising going on in government on Article 50, this post tries to imagine what the two critical groups in Brexit might do, now and in the future. To be clear, I am not suggesting that this is what they are actually going and any examples I provide should not be taken as implementations of such ideas; instead, the intention is to scope out what the path ahead looks like at a critical juncture in British politics, where much feels contingent and open to change.
Let’s start by looking at those who have made most of this strategic approach to date, those pushing for a hard Brexit.
The underlying situation is well-placed for hard brexiteers: they have the momentum from the referendum and own much of the media debate. However, David Cameron’s resignation immediately after the referendum meant that progress to Article 50 has become stalled.
The priority objective here has to be to get to Article 50 as soon as possible. This matters because it locks the UK much more firmly into leaving and because it opens up much more chance of making that departure a full one.
To tackle this last point first, Article 50 has a timetable and an extended number of veto players, anyone one of whom can block the conclusion of a negotiated deal. Failure to reach a deal means that the UK leaves after two years with a rupture. Either that is the objective, or it prompts the kind of crisis talks that lead to a deal in which the UK might have more opportunity to secure the trade-based relationship that many hard brexiteers want. In any case, the absence of agreement moves the UK very firmly – and possibly permanently – into the hard Brexit position.
Hence, getting to Article 50 matters. This means stamping hard on any sign of delay by the government, as well as calling out any and all who question any aspect of the situation, even if they are nominally ‘friendly’. Thus the various court cases might not question whether notification or Brexit should happen – only how – but by ramping up public dissent it makes it much more difficult for anyone to leverage those cases into further diversionary or limiting action.
Likewise, Parliament becomes a battleground, with a hard core of hard Brexiteers able to deprive the government of its majority, possibly to link up with an acquiescent Labour party in inflicting defeats on any area of policy that might cause Theresa May to think hard about defining them. Within the Tory party, that power also potentially extends to raising a challenge to their leader more directly, by triggering a leadership contest. While more of a nuclear option, it does have weight behind it, made more credible by the copious demonstrations of willingness to unleash havoc.
In short, the hard brexiteers probably do best by being unrelenting in their criticism of anyone who doesn’t cleave to the view that Brexit is quick and simple, pushing as hard as possible to get to Article 50, and then being unhelpful in finding a basis for cooperation, so that exit occurs on hard (ie. no) terms.
If hard brexiteers might to push on being obstructive, then those that still want to fight for no brexit have a very different challenge.
For them, the referendum is a big, unavoidable problem and there is no easy way around it. So let’s assume that they will not directly challenge it. This opens up two lines of action, one short-term, the other longer.
In the short-term, the priority would have to be killing the momentum of the process. Cameron’s non-notification on 24th June opened up a big opportunity, but now it needs more work.
The logical first port of call is the Supreme Court next month. While neither party in Miller & dos Santos looks like changing their basic argument, the involvement of representation from the Scottish government and (possibly) the joining of the defeated Northern Irish action mean that there is scope for new elements to be introduced. To pick a recent idea, arguing that Article 50 notification needs not only the Act required by the High Court but also repeal of the 1972 European Communities Act would throw a huge spanner in the works, as this latter might mean years of legal unpicking before notification can happen.
The fall-back would be Parliament and efforts to expand the notification bill not only to improve oversight but to add further hurdles to getting to notification – such as the agreement of devolved assemblies – or the requirement for a second referendum to approve the final deal. Again, there are enough no-brexiteers in Tory ranks to cancel out the government majority, so work on getting Labour on-side would have to be a priority. Here, repeals would need to be multi-faceted, speaking to values and ideas that will resonate strongly with the leadership, i.e. not simply the benefits of EU membership.
Delaying notification is central in all of this, since it opens up the longer-term perspective, namely to effect a change in wider circumstances that make over-turning the referendum more feasible. That might include economic costs becoming more obvious, but also allowing more political events to accumulate. To take the most recent example, a Trump administration might be willing to cut a quick trade deal with the UK, but if that doesn’t happen then it makes the brexiteers’ argument about being a global player more difficult. Likewise, elections in France and the Netherlands in the first half of 2017 open up paths to more radical change within the EU that might render leaving moot.
Both these paths – hard brexit and no-brexit – are difficult and problematic. There is much to question about them and I’d have serious doubts about the viability of either.
However, the middle path – that of a managed brexit – is little easier. There have been some good pieces of late about how to strategise this, but that does not disguise the many pitfalls and bear-traps that exist. Perhaps the value of thinking more radically is that it exposes these, so that we might have more of a chance of getting to a sustainable future policy position.