Uncharted Waters

Effectively there is no overall control in the House of Commons when it comes to Brexit.

Mrs May on the Andrew Marr Show on 6 January  resolutely batting away questions about what she would do if her Withdrawal Agreement failed to secure a majority on 15/16 January said ‘ we will be entering uncharted waters’.

So does the House of Commons have the will , skills and mechanisms to navigate us safely through these uncharted waters ?

And is there a safe harbour in sight ?

Here is an outline of where we are , and how we could Reclaim Our Future .

 Weakened Hand

Despite having stuffed the mouths of the DUP with gold in order to secure a confidence and supply agreement the government finds itself without their support on the most critical issue that has faced our country for a generation. Mrs May went to the country in a snap election to strengthen her hand in her negotiations with the EU. In fact the country weakened it, removing her majority. Nonetheless Mrs May has ploughed on following the course set by her precipitous painting of redlines  and giving of article 50 notice. She now faces the predicament of not being able to secure a House of Common’s majority on an agreement which does no more than settle the terms  of our departure. The political declaration which accompanies it is so vague as not to give any real clarity about the future state or the route to achieving it.

Power of Law and the Clock

Mrs May’s dilemma, and the country’s, is heightened by the fact that in a move to demonstrate her Brexit credentials in which she was joined by most other MPs she initiated article 50 notice and passed legislation so that the UK leaves with or without a deal by operation of the law and effluxion of time unless Parliament passes alternative legislation. Currently the self-styled European Research Group, which is to research what bigotry is to open-mindedness, is bolstering its long-term strategic position that by law we leave and claims, against all the evidence, that leaving without a deal and trading on WTO terms is an acceptable outcome.

No Majority – For Anything – Except Stopping No Deal

It is widely held that there is no majority in the House of Commons for leaving the EU with no deal. However it is also evident that so far there is no majority for any other alternative , except preventing Brexit with No Deal. The official opposition holds a complicated three-step position (no-confidence vote, followed by general election, and in the absence of those a People’s Vote) and currently continues to promote the quixotic notion that a Corbyn Government would be able to negotiate quickly with the EU a new customs union based relationship for which are claimed all sorts of features and benefits that the EU has expressly ruled out.

No Way Out by Conventional Means

In short there is no prospect at this point of the conventional machinations of party political politics ending the current parliamentary impasse .

Ploughing On

Mrs May in her characteristic ploughing on regardless style has not acknowledged any course of action that she might take if the House of Commons fails to back her withdrawal agreement on 15 /16 January. It is assumed that she would continue to run down the clock and seek to bring back another version of the motion that had just failed to pass. There is some debate as to the extent that such a move is consistent with Erskine May’s guidance on Parliamentary procedure and much may rest on the judgement of the Speaker. Parliamentary movements are afoot to put a spoke in the running down the clock strategy.

Only Laws Change the Law

Taking a strategic view the current circumstances favour the ERG inasmuch as nothing new needs to pass through the House of Commons for their desired outcome of Brexit  without a deal to come about. For anything else to happen Parliament needs to pass legislation to make that happen. So Bernard Jenkin, in his guise as Chair of the Public Administration and Constitutional Affairs Committee appeared on Radio Four Today on Monday 7 January to reiterate the ERG line that “motions don’t change law, only laws change law”. Only government can introduce new legislation and , Jenkin emphasised the ERG view that as motions have no legal effect the government is entitled to ignore them , deferring instead to the result of the referendum.

The ERG couples with this line that leaving the EU without a deal and trading on WTO terms would be an acceptable outcome and reflect what most of the world does . This view is not  supported by the evidence which shows for instance that the UK’s trade with the USA currently relies on a number of ancillary agreements negotiated by  the EU which would not be available after  Brexit .  In fact most of the world’s countries are involved with regional trade agreements. Of course the WTO is not currently operating from a position of strength being undermined by President Trump’s  refusal to appoint new judges alongside his predilection for bilateral agreements and negotiation by tariff warfare.

If neither front bench is likely to put forward an initiative capable of breaking the deadlock what other way  out of the current impasse is there?

Breaking Out of Logjam

There are at least three groups pushing an agenda. The longest standing is the ERG whose gameplay is essentially to sit tight,  forestall other initiatives and  wait for the law to take its course. Ranged against them is the People’s Vote which faces a number of obstacles to secure its objective of a second referendum. In addition to needing to secure a parliamentary majority there is the issue of time. While a decision to withdraw the article 50 notice is entirely within the U.K.’s discretion an extension of the notice period requires agreement by the EU.

The third group is the one coalescing around Norway plus in which Nick Boles has been a prime mover. Initially this was presented as a halfway house before at a future date agreeing some new arrangement. This did not go down well with EFTA/EAA  countries and it has  now morphed into a long-term arrangement. However it tends to be seen as a measure to mitigate the adverse consequences of what would otherwise arise rather than being a wholly desirable destination in its own right. This is not least because the UK would forfeit sovereignty and influence. Effectively we would receive future regulation by email rather than participating in its formation. This has been described by Tony Blair as a pointless Brexit compared with Mrs May’s painful Brexit.

Parliament Takes Control

The conventional response when Parliament faces a situation of no overall control is to form a minority government which makes a confidence and supply agreement with the smaller party or, more unusually, as in 2010 a formal coalition.

Formally a confidence and supply agreement is in place with the DUP. Whether this continues so that the government is able to legislate effectively on the rest of its programme remains to be seen. It is asserted that this remains the case.

However it is clear that the government commands no majority on Brexit.

So the proposition that is being tested is the extent to which members of the two main parties can reach across the aisle to cooperate with each other and with the smaller parties in the no overall control  vacuum created by the failure of government policy on Brexit.

Experience of No Overall Control

Outside Parliament there are many examples of no overall control councils where minority administrations have found ways of working collaboratively which are not founded on formal agreements. However they do require in my experience the identification of initiatives which share a high enough degree of ownership to secure a majority .Those promoting them have to exercise effective brokerage skills which exclude or at least minimise any attempts to claim party political advantage. Attempts to do so usually cause participants to withdraw within their usual party  boundaries.

As a general principle an initiative or cause which will mobilise sufficient support behind it has to be one that is unquestionably for the common good and where failure to act will mean that the community’s interests, or in this case the country’s , will suffer. Protecting from harm from an external source will galvanise politicians to action but stronger commitment will be found where the motivation is not ‘ we had to because we have no choice’ but one where  following  a strategic direction secures long-term benefit  which the whole community/country will enjoy.

Time to Revoke and Reflect

The inherent weakness of both the Norway and   People’s Vote options is that,  notwithstanding the laudable motives of their promoters, in my view, of seeking to avoid the worst outcome for the UK they are both highly contingent upon the agreement of others which makes potential delivery both protracted and uncertain. They both have obvious deficiencies. To put it in the most uncharitable terms Norway will be painted as pointless and the ‘People’s Vote’ as a ‘losers vote’. Obviously there are counter arguments to be put not least to the  ‘respect  the result’ argument .Of course the Referendum result was procured following the biggest electoral offence since the 19th century and one which leads to the Cabinet.

However for the purposes of the present discussion the only conclusion that needs to be drawn from the above is that for reasons of contingency and controversy neither is likely to command in the time available the majority required for action to stop the clock and  avert  the disaster of the no deal Brexit.

Purpose and Vision – Reclaim Our Future

My argument is that while neither of the current campaigns can expect to command a majority at the moment there needs to be a sense of purpose and vision about the action Parliament  takes beyond simply Stopping The Clock. We need a programme to reclaim our country’s future .

Our Future is not in the Withdrawal Agreement

Current debate is largely focused on the benefits or deficiencies of the Withdrawal Agreement. What is almost entirely overlooked is that there is no clearer  vision of the desired future state than there was two years ago. Endless squaring of a circle of impossible promises which  has elevated ending freedom of movement above all else has predictably ended up in a withdrawal agreement which is seen by many as the worst of all worlds .Although it seeks to offset some damage the 80% of our economy which is services is thrown up  to fate.

Implementation Period – With Nothing to Implement

Mrs May is desperately trying to get over the line into the so-called implementation period when she has nothing to implement.

Future State ?

The Political Declaration is couched in such wide terms as to off er no real clarity about our future . It could cover anything from close alignment to Own Trade Policy accompanied by Deregulation .The reality of negotiable outcomes – I mean by that what is within the bounds of what we can realistically, from the declarations of the EU , conclude could be successfully negotiated – is simpler than is frequently portrayed. I will sketch it briefly and probably inadequately below .

Canada

For those who elevate being able to secure our own trade agreements above all else,(often referred to as Canada with an indefinite number of+’s to convey positivity) that comes at the price of a border in the Irish Sea (or on the island of Ireland) . All the proponents of an  alternative  view, who seek to portray the border as a manufactured issue, ignore two vital facts. Firstly the genius of the Good Friday Agreement is that it draws on Ireland and the U.K.’s membership of the EU to create a situation where those in Northern Ireland who see themselves as Irish can, and those who see themselves as British can. Equally those who want to see a border can, and those that don’t, don’t.

Secondly for all the claims of technological solutions made by Shanker Singham of IEA and others which can be applied( to allow the impression that the current state of affairs continues to exist) their advocates are unable to point to a single border anywhere in the world where such technology exists. Given that negotiation requires agreement on both sides however robust the assertions made for technological solutions are the reality is that the EU will not accept an outcome based on such a solution until there is tangible evidence  available.

Norway

The other principal negotiable outcome is continuing close alignment with EU though membership of EFTA/EEA coupled with a Customs Union – generally referred to as Norway + . While this minimises adverse economic effects , and is indeed the response Norway took to a 52:48 Referendum result , it does represent a significant diminution of sovereignty.

Need to Know Where We Are Going Before We Leave

It is this reality that needs to be confronted if we are to determine the future state successfully. It is transparently obvious that this needs to be tackled and that we should not enter into any further negotiations until we have complete clarity about what outcome we are seeking and the route to achieve it. It is plainly folly to tie ourselves in to proceeding further without a clear vision of a future. Our strategic approach has been flawed from the outset .

Time To Stop Clock and Press Reset Button

That in essence is why we now need to exercise the discretion which is available to us and not contingent upon any agreement other than parliament’s  to stop the clock by withdrawing article 50 notice now.

Revoke and Reflect – Vision and Purpose

There is task for Parliament, having withdrawn the article 50 notice, to decide how the opportunity created by revocation should be used for reflection. I would suggest some minimum requirements.

Firstly unlike in June 2016 we should approach determining the future state in a cross-party way which recognises that we are setting a path for generations to come which must be owned and respected by all not  appropriated by one side or another.

In considering the future for our country whether inside or outside EU it must be a prior requirement notice is not served, if it is to be , before there is clarity about the future state and the negotiation path through which it will be achieved.

There should be a cross-party Parliamentary Commission to gather evidence on the two principal options outside the EU and on remaining within it and to make recommendations to Parliament accordingly.

The work of the Parliamentary Commission should be accompanied by a series of citizens juries undertaken across the country which can consider the available choices as they affect their region and the country as a whole .The outputs from these should form part of the deliberations of the Parliamentary Commission.

There is also a pressing and so far neglected task ,save for the work of the DCMS committee and a small number of investigative journalists,  to understand fully the nature of interference and manipulation that took place during the 2016 referendum and what steps need to be taken to safeguard our democracy for the future. To this end a UK Mueller  style investigation will be established.

A People’s Vote should also be considered subject to the work outlined above having been undertaken by the Commission. This is to ensure that there is as complete clarity as can be achieved in putting forward a question for a referendum if there is to be one . Any necessary reforms to electoral law  or other measures in order  to safeguard such a referendum from abuse should have been implemented before it takes place .

Seizing the Moment

Our future is literally at stake . Parliament must seize the moment – for all our sakes.

Revoke. Reflect . Reclaim Our Future