The latest Brexit analysis on the current situation and why Professor Chris Grey thinks the attempt to push through no-deal Brexit represents an undemocratic political fraud without any precedent.

First published in August 2019.

Considering the fact that August is usually a quiet month for politics, there’s still plenty going on and although it’s normally considered ‘silly season’, much of it has deadly serious implications.

Whilst there was never any real likelihood of substantive new negotiations taking place during the summer, we are seeing a war of words which makes it unlikely that they will ever occur. Johnson is simultaneously claiming to be ready to negotiate and insisting as a precondition that the negotiated agreement be torn up. Meanwhile, predictably but dishonestly, members of his government are pretending that the problem is that the EU are ‘refusing to negotiate’.

As ever, an easy way to see how unreasonable the Brexiters’ demands are is to envisage their reaction to the obverse scenario. In this case, that would be the EU saying that it repudiated key elements of the Withdrawal Agreement and would not negotiate anything until the UK accepted that. If the UK refused then the EU would not ratify the agreement and the UK would have to put up with not having a deal. It’s not hard to imagine the howls of outrage from Brexiters and the screaming, accusatory headlines in their newspapers.

Madman theory becomes madman practice

In a recent piece, before he came to office, I speculated as to what ‘variety of Nixon’ Johnson would be – meaning, in brief, whether he would use his position as a leading Leaver to reach a rapprochement with the EU in the form of a superficially revised deal, or push uncompromisingly towards no-deal in order to bluff or scare the EU into a totally revised deal with no backstop at all.

It’s clear that it will not be the former. If that was ever his intention, he has now backed himself too far into a corner ever to compromise without destroying himself politically. So it seems to be the latter. But there is to my mind no prospect that the EU will, or even could, acquiesce to removing the backstop.

This is not simply to do with protecting the interests of Ireland and the Northern Ireland peace process, important as both of those things are. Additionally, as I’ve argued many times on this column, it is basic to protecting the operations of the single market. That cannot be done, as some Brexiters seem to imagine, by just saying ‘no one wants to put up a border’: a border is entailed by the UK’s red lines on the single market and customs union. In this sense, whilst the EU position is sometimes described as if it were ‘political’ rather than ‘economic’ it is, in fact, both.

Thus if Johnson continues to push the EU to make ‘concessions’ which they can’t make then no-deal Brexit becomes inevitable. If, as described in that previous post, Johnson is operating a version of Nixon’s ‘Madman theory’ then he, and we, are in trouble. That theory is meant to prevent the ‘nuclear button’ being pressed – which only a ‘madman’ would do – but if it results in pushing the other side into a corner they can’t get out of, it also pushes your own side into the same corner, leaving no option other than to press the button.

The stakes here are not, of course, on anything like the scale of nuclear war but they are very high indeed and, economically, the more so for the UK by some margin. It remains to be seen, but at the moment it looks as if Johnson has miscalculated or, equally likely, that he never expected or sought anything other than no-deal, despite his promises to the contrary.

To put it another way, whereas madman theory is premised on the idea that the other side is not sure if you are sane but you really are, it may be that with Johnson he really is, figuratively speaking, a ‘madman’. If so, we are in the terrain not of madman theory but madman practice – a very different matter. (A BBC World Service programme, discussing this and featuring me, was broadcast today).

The SpAd revolution

This reading is underscored by way that government seems to have been taken over by a legion of Special Advisers (SpAds) under Dominic Cummings, variously described as a “career psychopath” (by David Cameron) and as having “anger management problems” (by Nick Clegg). Many of these SpAds have a background in the Vote Leave campaign and/or the plethora of shadowy think tanks associated with extreme libertarianism and disaster capitalism. It seems highly probable, therefore, that many of them actually want no-deal Brexit or, if not, are more than happy to countenance it.

There is nothing new about SpAds having influence, but reports seem to suggest that they are being organized to ruthlessly enforce the push to no-deal🔒, and are exerting far more control over ministers and officials than is the norm. I’m not aware of any precedent for this, although it is the culmination of a long history of events going back, at least, to Sir Alan Walters’ role as an economic advisor to Margaret Thatcher. The conflicts that resulted led to the resignation of both him and the then Chancellor Nigel Lawson (interestingly, Walters went on to be a Referendum Party candidate whilst Lawson, of course, is now an arch-Brexiter).

The power of SpAds gradually increased under successive administrations but they have not been invulnerable. Cummings himself did not survive as SpAd to Michael Gove in the Department of Education, whilst Theresa May’s once all-powerful advisors, Nick Timothy and Fiona Hill, the former of whom is said to be the architect of her red lines that have caused so much damage, were ousted after their role in the ill-fated 2017 election. Now, however, it seems that the SpAds, more than ministers, are running government. If this is so, it raises fundamental and highly alarming questions about democratic legitimacy and accountability, and also contributes to what I described in my most recent piece as ‘government by cult’.

Parliamentary possibilities

Against this background, discussions about the scope that parliament has to prevent no-deal Brexit are taking centre-stage. I am sure that I am not alone amongst laypeople in finding these quite confusing and abstruse. Indeed, my impression is that there is a degree of confusion even amongst experts in constitutional law and parliamentary procedure.

No doubt this is in part because the current situation is in so many ways unprecedented. It also seems to be because the patchwork of law and convention that make up our uncodified constitution makes some of the issues inherently opaque, the more so when faced with an administration that seems to have little regard for established convention anyway.

My very limited understanding of these issues is based primarily upon articles by David Howarth, Professor of Law and Public Policy at Cambridge University, Mark Elliott, Professor of Public Law at Cambridge University, and Vernon Bogdanor, Professor of Government at King’s College, London. All are senior, leading experts and I do suggest reading their articles rather than relying on my brief and inexpert commentary.

With this important caveat, the issues seem to fall into two categories. One is whether parliament could ‘take control of business’, as happened earlier this year, and enact legislation to seek an Article 50 extension, a referendum or even a revocation. The other is whether through a Vote of No Confidence (VONC) parliament can force a General Election and, if so, whether this could be forced to occur before the UK leaves the EU. However, these categories are not watertight, as the former process might also be used to amend the Fixed-term Parliaments Act so as to ensure that if a VONC were passed an election could not be delayed until after Brexit.

A temporary Government of National Unity?

The latter consideration arises from the statement, or threat, from Dominic Cummings🔒 that even if a VONC passed then Boris Johnson would simply remain as PM and not hold an election until after the scheduled Brexit day on 31 October. From this arises a further discussion: could parliament immediately install a temporary government of national unity for the purpose simply of holding an election prior to Brexit (if necessary seeking an extension from the EU for this)? Indeed might it be possible to word a VONC to actually specify the name of a PM who would command the confidence of the Commons (see this Twitter thread by George Peretz QC)?

Whether named in a VONC or not, who would lead such a temporary government? This has presented an immediate impasse. Initially, the talk was of a figure who MPs of all parties could support – perhaps someone known to be nearing the end of their career and/or with no further political ambitions. Names including Ken Clarke, Margaret Beckett, Yvette Cooper and Dominic Grieve have been canvassed.

However, Labour are adamant that it must be Jeremy Corbyn, and it is difficult to see how enough Labour MPs would defy him to make a temporary government viable. Yet, equally, most discussions assume that Conservative rebel MPs would not countenance him, and the LibDems are also reported to have ruled it out🔒. It’s conceivable that they might shift ground on that, if it seemed that it was the only way to prevent no deal – for, after all, this would only be a very temporary government for one purpose – and, more remotely conceivable, that Corbyn might change or be forced to change his position. But already the whole idea has become mired in party tribalism and may well stay there.

All scenarios have massive difficulties

There are clearly massive difficulties and complexities associated with all of the various scenarios being discussed. All of them would depend upon parliamentary numbers, which might play out in different ways according to the different permutations. Any control of business to avert no-deal would require a substantial number of Tory rebels to succeed, the exact number needed depending upon how many Labour leaver MPs would support the government. I’m not convinced that enough of the potential Tory rebels have the backbone and, as we’ve seen before, any such votes are likely to be nail-bitingly close.

As for a temporary government of national unity, despite its name, what would ‘unity’ really mean for the many millions who, undoubtedly, support no-deal Brexit even if they are not the majority? Were it to come about many would be outraged and the Brexit press would whip that up, giving fresh impetus to the Brexit Party.

But, actually, far more outrageous would be the scenario in which a minority government, having changed PM mid-term and lost a VONC, simply squats in power, delaying an election, to preside over a no-deal Brexit which is completely at odds with what voters were promised in the Referendum, has never been endorsed by any vote of any kind, and is against the wishes of the majority of MPs. And it’s no good Brexiters saying to that that the Referendum gave a mandate to leave on any terms. For, if it did, then it gave a mandate to leave on May’s terms – or, for that matter, on soft Brexit terms – both of which Brexiters repudiate.

The coming crisis

Whatever happens, it seems all but certain that the UK will experience an intensified political crisis and perhaps a full-blown constitutional crisis in September (or, conceivably, earlier if parliament were recalled, as discussed in this UCL Constitution Unit blog, though I doubt it) and it’s likely to be accompanied by a severe sterling crisis which is already incipient. That’s an alarming prospect in itself, but what is even more worrying is what comes afterwards, and I don’t think many commentators are giving enough attention to that.

There are several strands to consider. If no-deal Brexit goes ahead then, of course, there will be whatever economic disruptions and deprivations that will bring. But there will also, and partly because of that, be immediate and long-term issues about how the UK does settle its relationship with its nearest neighbour, biggest trading partner, and key international ally.

They won’t go away by virtue of no-deal Brexit, and will be made far more difficult to address by the acrimony of it. (I’ve seen a report, which unfortunately I did not keep a record of, and now can’t find to link to*, that the UK has already asked the EU how quickly post-no-deal talks could begin, and received a very frosty response).

*Source here, courtesy of Steen Carndorf

Political and cultural dislocation

Even more important, perhaps, will be the domestic political and cultural dislocation. Johnson talks of getting Brexit done and bringing the county together. But there is not the remotest prospect of the latter happening after no-deal Brexit. The impacts on the Union will be huge, for a start. And at least half the country, who do not want Brexit in any form but might have accepted it in a soft form, will have had Brexit in this most extreme form inflicted upon them. All the divisions we already see will be exacerbated and inflamed.

Nor are the prospects much better if no-deal is averted. It’s true that this would avoid the economic shock (though don’t think that the UK would immediately be regarded as a stable place to invest) but the cultural divisions would remain and be ramped up. Another referendum would be unlikely to help, unless perhaps it yielded a decisive (say 60-40, one way or the other) result which is a very remote possibility.

This isn’t at all to say that there is a moral equivalence between these two scenarios. On the contrary, the attempt to push through no-deal Brexit represents an undemocratic political fraud without any precedent I can think of. It has no mandate from either the Referendum or any election and every claim to the contrary by Brexiters is grotesquely dishonest. By contrast, attempts to hold another referendum are highly principled. They do not seek to prevent the electorate deciding their fate, but to enable it to do so.

Where there is an equivalence, it is not moral but socio-cultural. Both scenarios will be equally divisive and equally viciously contested for many years to come. I’ve said a few times on this column that, for some time now, there have been no good solutions available. I now think that there aren’t any bad solutions either. Indeed, increasingly, I think there are no solutions at all.

The complexities, contradictions, fantasies and sheer lies of Brexit have simply overwhelmed the capacity of our political system to cope with them.🔷

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[This piece was originally published on The Brexit Blog and re-published in PMP Magazine on 12 August 2019. | The author writes in a personal capacity.]

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(Cover: Flickr/Number 10. - Prime Minister Boris Johnson at Pilgrim Hospital in Boston. | 5 August 2019. / Licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.)