web analytics
a

Facebook

Twitter

Copyright 2015 Libero Themes.
All Rights Reserved.

8:30 - 6:00

Our Office Hours Mon. - Fri.

703-406-7616

Call For Free 15/M Consultation

Facebook

Twitter

Search
Menu
Westlake Legal Group > House of Commons (general)

Dan Boucher: Is it time for a Leadsom Convention?

Dr Dan Boucher was the Conservative candidate in Swansea East at the 2017 General Election.

One of the remarkable things about the unwritten British constitution is the way in which parliamentarians willingly stop short of pressing home what would otherwise be a political advantage because of unwritten conventions. Why is it that legislators stoically abide by these codes even when it costs them? Perhaps the answer lies in their effect. Enabling us to rise above the need for the aggressive application of law, they impart a certain constitutional flexibility and freedom. To some this might seem rather quaint, but it arguably brings, or at least should bring, a sense of dignity to our arrangements.

One such convention is the Salisbury-Addison Convention which has obtained since 1945. Named after the Conservative and Labour leaders in the Lords, it established the principle that the unelected chamber should not block a Bill at Second or Third Reading which was introduced in order to honour a manifesto commitment made by the elected party of government.

This principle makes good sense. Notwithstanding the constraints on its power, the Conservative-dominated Lords could have pressed home its right to vote down the Attlee Government’s legislation. Rather than taking this path, however, Conservative peers proactively recognised a moral obligation to respect the ballot box and, rather than waiting to be forced by law to have this freedom fettered, chose to rise to this challenge by embracing what was effectively a principled self-restraint. It is this capacity for principled self-restraint that does not seek the pressing home of legal rights just because it is possible to do so, but effectively pauses to ask whether it is right to press home such rights, which has helped to enable our political institutions to evolve out of difficulty.

The vitality of the British constitutional tradition, which famously finds it strength in being an ongoing growth rather than a finished creation, expresses itself not only by upholding existing conventions but also in developing new conventions, recognising the need for new manifestations of self-restraint as our political system evolves. In this regard, the constitutional convention that was inaugurated by Lords Salisbury and Addison in the 1940s is relevant to our present predicament.

The current difficulty arises from the fact that we have a referendum result pointing in one direction and a parliamentary majority pointing in another. Some might respond to this by saying that, as a matter of law, Parliament has the final say. On this basis, from a technical legal point of view, referenda are always advisory. Having a referendum cannot change the fact that any new law to implement a referendum result must be made by Parliament as our law-making body, not by the people in a mass plebiscite.

This technical legal reality, however, has to be held in tension with the political reality that if you give the people a referendum, don’t like their advice and then try to ignore it or tell them they were wrong, you create a huge political problem. This difficulty is greatly compounded in the current context, because the pamphlet the government sent to every household ahead of the referendum said: ‘The referendum on Thursday, 23rd June is your chance to decide if we should remain in or leave the European Union.’ The sense then was not that the referendum was being held to ask the British people for their advice, but rather to ask them to decide whether or not we should remain in the EU.

Some might respond to this by pointing out that the failure to be clear that the referendum was only advisory does not change the fact that in the British constitutional tradition it could only ever be advisory. Whilst this apparently purist presentation of constitutional doctrine may sound compelling, the truth is that the sovereignty of Parliament does not present a fatal problem for our evolving and unwritten constitution.

There is already an important sense in which, thanks to the Salisbury-Addison Convention, one of the Houses of Parliament has willingly embraced a convention of self-restraint in response to the democratic imperative. Once one House has used its sovereignty to willingly embraced self-restraint in this way, it follows that the other  could embrace self-restraint for the same reason. The only difference here is that the nature of the democratic imperative is more compelling in relation to a referendum mandate than in relation to a manifesto mandate – and thus the case for self-restraint by the Commons is stronger.

The Lords embraced voluntary self-restraint because it accepted that the government party is elected by the people on the basis of their manifesto. This then gives its election manifesto democratic legitimacy, even though it is highly unlikely that the winning party will have been elected because all its policies were liked equally. As Philip Norton observes: ‘Though an elected government may claim a mandate for whatever programme was embodied in its election manifesto, it cannot demonstrate definitively overwhelming support for any one particular proposal’.

For instance, whilst the electorate returned Margaret Thatcher in 1987 with a majority of over 100, it is doubtful that everyone who voted Conservative was doing so because they wanted the poll tax. By contrast, because a referendum is concerned with a very specific issue (notwithstanding debates about what different words may mean), it is possible to demonstrate express support for a particular proposal – in this case leaving the European Union.

In the context of the enhanced democratic mandate attending a clear public vote on a specific issue, the logic that called the Lords to exercise self-restraint applies even more to the Commons. Crucially, this would not result in changing the fact that Parliament remains sovereign. Parliament would remain so. It would freely choose to use its sovereignty to pass appropriate legislation to respect the referendum result, courtesy of a new convention of self-restraint that would develop (like the Salisbury Convention) to deal with the tensions resulting from the fact that a majority of people voted to leave the EU in the referendum while a majority of MPs would rather remain.

Given that the Salisbury-Addison Convention was named after the Conservative and Labour Leaders in the Lords, perhaps the time has come for a Leadsom-Vaz Convention in the Commons? That would hopefully restore greater dignity to our arrangements, shutting the door on revoking article 50 and hopefully opening the door to a greater determination to really honour the referendum result.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

The 99 Conservative MPs who opposed the latest Brexit delay motion

Including tellers, 99 Conservative MPs voted against the Government’s proposal to delay Brexit to 30th June today.

Despite a three-line whip, only 133 Conservative MPs voted for the motion – a remarkably low number, which underscores the collapse in the authority of the Tory whip. A further 80 Conservative MPs – including Andrea Leadsom, Liam Fox, Geoffrey Cox and Brandon Lewis – did not vote.  As ever we must be careful to ascribe not voting to a deliberate political abstention, given that absence can be caused by illness and other reasons, but 80 is very high for a whipped division.

Presumably since Gauke et al were previously allowed to stay in Cabinet after abstaining in the face of a three-line whip, there will not be any disciplinary consequences for the absence of these Cabinet ministers. As this site predicted, the effect has been deleterious on discipline.

Conservative MPs who voted against a further delay to Brexit

Adam Afriyie

David Amess

Richard Bacon

Steve Baker

John Baron

Bob Blackman

Crispin Blunt

Peter Bone

Ben Bradley

Graham Brady

Suella Braverman

Andrew Bridgen

Fiona Bruce

Conor Burns

William Cash

Maria Caulfield

Rehman Chishti

Simon Clarke

Geoffrey Clifton-Brown

Chris Davies

Philip Davies

David Davis

Steve Double

Richard Drax

James Duddridge

Iain Duncan Smith

Charlie Elphicke

George Eustice

David Evennett

Michael Fabricant

Mark Francois

Marcus Fysh

Cheryl Gillan

Zac Goldsmith

James Gray

Chris Green

Andrew Griffiths

Robert Halfon

Greg Hands

Mark Harper

Chris Heaton-Harris

Gordon Henderson

Philip Hollobone

Adam Holloway

Eddie Hughes

Ranil Jayawardena

Bernard Jenkin

Andrea Jenkyns

Boris Johnson

Gareth Johnson

David Jones

Daniel Kawczynski

Pauline Latham

Andrew Lewer

Julian Lewis

Julia Lopez

Tim Loughton

Craig Mackinlay

Anne Main

Scott Mann

Stephen McPartland

Esther McVey

Johnny Mercer

Stephen Metcalfe

Nigel Mills

Anne Marie Morris

Sheryll Murray

Neil Parish

Priti Patel

Owen Paterson

Mike Penning

Mark Pritchard

Tom Pursglove

Dominic Raab

John Redwood

Jacob Rees-Mogg

Laurence Robertson

Mary Robinson

Andrew Rosindell

Lee Rowley

Henry Smith

Royston Smith

Julian Sturdy

Desmond Swayne

Hugo Swire

Robert Syms

Derek Thomas

Ross Thomson

Michael Tomlinson

Craig Tracey

Anne-Marie Trevelyan

Shailesh Vara

Martin Vickers

Theresa Villiers

Charles Walker

Giles Watling

John Whittingdale

Bill Wiggin

William Wragg

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Bernard Jenkin: Could the Commons stop Brexit? It’s harder to do than some are suggesting.

Bernard Jenkin is Chair of PACAC (Public Administration and Constitutional Affairs Select Committee) and Member of Parliament for Harwich and North Essex. He writes in a personal capacity.

Many seem to assume that a vote in the Commons could stop or delay the UK leaving the EU on WTO terms without a Withdrawal Agreement, or else force a second referendum – but they never explain how this might happen.

Downing Street, in its desperate effort to scare Conservative MPs into supporting its discredited and discreditable EU Withdrawal Agreement, continues to suggest that, somehow, the Speaker can contrive some mere Commons procedure which would allow the Commons to delay or to stop Brexit. This contention would laughable, were the issue in dispute not so serious.

As we approach the so-called meaningful vote, the Commons Public Administration and Constitutional Affairs Committee (PACAC) has today issued a report, Status of Resolutions of the House of Commons. This follows our December report, which looked at the status and effect of confidence motions.  Today’s report does not address the Brexit question directly, but some of our evidence and findings can leave no doubt about the limitations on the ability of the Commons to divert the UK from the course to leave the EU on March 29th.

The European Union (Withdrawal) Act 2018 sets the time and date when the UK leaves the EU, and this reflects EU law as defined by Article 50.  The Withdrawal Act also repeals the 1972 Act which gives legislative effect to our EU membership.  It also provides for continuity in UK law by incorporating all EU law as UK statute law from the day we leave.  Unless the law is changed before March 29th, the UK will leave the EU on that date.

The evidence to our committee was stark.  The Clerk of the Commons is Parliament’s highest constitutional authority.  His status is on a par with the Cabinet Secretary.  He said in his evidence to us that “a mere resolution cannot change the law. The only way we can change the law is by law.” He explained that Parliament does not have the power to “bind the Executive by mere resolution” nor can it “instruct Ministers”.

The Speaker has confirmed this doctrine.  On 18 October 2017, he told the House that, while a resolution is an “expression of the view of the nation’s elected representatives in the House of Commons,” that it cannot direct Ministers and that “it is for Ministers in the Government to decide how to respond to the clearly expressed view of the House”.

PACAC’s report is clear that a government should respect Commons resolutions and that they should be treated seriously, even if the government in question cannot implement their terms as expressed, or chooses to disagree. But, generally, such resolutions have no binding or legal effect.

This is not to dismiss the sovereignty of Parliament, or suggest other than that the relationship between Parliament and Government lies at the heart of our democracy, and is the basis of public trust in our democratic institutions.  However, our system is one of parliamentary government, not government by Parliament.  PACAC’s report reflects this.  How a government responds to a Commons resolution is a matter of politics, not law.  This is all clearly relevant to what may or may not happen next in terms of Brexit.

Parliament is of course the sovereign law-making authority in our constitution.  If Parliament lays down the law, it can do anything, including stopping our exit from the EU (assuming that the EU would cooperate, which it probably would), but this would require Parliament to enact fresh legislation.

In our system, government proposes and Parliament disposes.  Yes, the government could simply give in to pressure, in this instance, and present such fresh legislation (for example, a new Bill to revoke Article 50).

But the Prime Minister has always been adamant about the UK leaving the EU as stipulated on March 29th, so there is nothing that even a majority of MPs can do to change that – short of ejecting the incumbent government and replacing it with a new one.  Some Conservative rebels are now planning with opposition MPs to sabotage other pieces of government legislation, but this would not alter the law which sets the Brexit date.

A tiny number of ex-Remain Conservative MPs have threatened to resign the whip, but none have (yet) said they would bring down the Government.  Nor should they.  We were all elected as Conservatives to deliver the referendum result.  We (nearly all) voted for the 2018 Withdrawal Act, including the date.

Parliament has spoken.  It had the opportunity to stop Brexit, but it passed the Withdrawal Act which sets the March 29th date. The Act makes provision for the House to express opinions in the so-called “meaningful vote”, but there is no provision for the Commons to prevent Brexit with or without Withdrawal Agreement. The Conservative Remain rebels never even dared press such an idea. May again made the point clear on The Andrew Marr Show yesterday, “You can have two alternatives.  You can have no deal, or you can have a deal”.  She will not offer any third option.

The Act delivers the simple answer to the question put to the people on the referendum ballot paper.  Parliament has legislated.  Democracy has been served. For some MPs now to complain they did not intend to vote for what the Act says is rather lame.  They may have held a different hope or expectation, but the Government gave no grounds for that.  Parliament has approved the law.  There is no democratic case for changing it.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Richard Ritchie: Brexit. Four great Commons debates that show how we got here – and what’s at stake.

Richard Ritchie is the author of The Progress Trust (Without Hindsight: A History of the Progress Trust 1943-2005). He is Enoch Powell’s archivist and is a former Conservative Parliamentary Candidate.

The reading of past debates in Hansard is a salutary exercise. I learnt this in researching my recent history of The Progress Trust where I was constantly impressed by how often political arguments seem to repeat themselves. But no more so than on the question of Europe.

Before joining the European Community, the Commons held three debates on the question of principle – four, if one includes the debate concerning the Labour Government’s refusal to countenance the Schuman plan in June 1950. All of them were considered historic by their participants. The final debate lasted six days (21st – 28th October 1971), sitting often until 2am and on one occasion until 7am.

In passing, it’s impossible to ignore changes in Parliament’s character between then and now. In 1971, speeches were still of unlimited duration, there were far fewer female contributions, and the Speaker (unlike now) was polite and impartial. The only time a Speaker came near to issuing a rebuke in all these debates was when Selwyn Lloyd on October 27 1971 exploded “It is really not tolerable that the Rt. Hon. Member for Leeds East (Denis Healey) should continue to interrupt from a sedentary position.”

But what strikes one most is how, with hindsight, the inevitability of today’s crisis is apparent. The issue of sovereignty was always acknowledged as crucial, and politics took precedence over economics from the start. Moreover, the Commons was always divided on the issue, with a constant sense from opponents of entry that the Government of the day was exceeding its democratic mandate.

– – –

The debate on the Schuman Plan is instructive, because it shows how the Conservatives were as willing as Labour to say one thing in Opposition, and another in Government. Churchill criticised the Labour Government for its refusal to consider a plan which he himself, as Prime Minister, was to judge unacceptable. The kernel of the argument was whether Schuman’s plan necessitated a “supra-national authority” as claimed by Attlee, but denied by Churchill who described it as “an odious phrase.”

And yet, Churchill took Attlee’s view once he regained office. Incidentally, it was during this debate that Edward Heath made his maiden speech, urging the Labour Government to “go into the Schuman Plan to develop Europe and to coordinate it in the way suggested.” Heath, at least, was always consistent. The most striking comment was uttered by the left-wing intellectual, Richard Crossman – “The amount of enthusiasm for federal union in any country is a measure of its defeatism and of its feeling of inability to measure up to its own problems.”

– – –

It was not until Harold Macmillan’s attempt in 1961 to join the ‘Common Market’ that the Commons again fully debated the principles involved – although only in respect of authorising negotiations. The debate contained many interesting statements, including Macmillan’s assurance that “it is quite unreal to suppose we could be compelled suddenly to accept a flood of cheap labour.”

Of special relevance to today was the distinction between applying for membership under Articles 237 and 238 of the Treaty of Rome. The Labour Party preferred the latter because it simply meant joining ‘a customs union’. But as Macmillan pointed out, this amounted to no more than becoming “country members” (it was typical of Macmillan to use a club analogy). He continued: “it would raise all the same problems without giving us any position in which we could share in the decisions of the Community in all its aspects.” In other words, precisely the same objection as is made today of Theresa May’s approach.

On the economic side, the debate was between those who feared economic exclusion from a large market, and those who felt this country was betraying its farmers, and the Commonwealth. On the political side, the argument was over sovereignty. Derek Walker-Smith was the main Conservative opponent of entry, urging the Commons to consider “the direction and destinations” to which membership would lead, and emphasising that “for the Community economic union is a prelude to political union.”

He was not alone in warning of what came to be known as the ratchet effect. The word ‘sovereignty” was discussed frequently during this short two debate in August. It’s a myth to suppose it was of lesser concern in 1961 than in 1971 or indeed today. And from the start, it was divisive. As the Conservative MP Sir Robin Turton warned, “there are hundreds of thousands of Conservatives who hold the views that I hold” on sovereignty, and continued “I fear that the Government will split not only the Commonwealth but the Conservative Party.”

– – –

Because this attempt to join the Common Market was blocked by de Gaulle, the Commons was never required to debate the actual terms of entry. By the time Harold Wilson launched a second attempt to join the Community in 1967, there was a greater appetite to debate in detail the economic dimension.

A three day debate took place between 8th and 10th May, by which time Edward Heath was leader of the Opposition. While resentful of the lack of support offered by Labour to his negotiations in 1961, Heath offered the Government almost unequivocal backing on condition that, as he had stated a few months earlier, Wilson’s application was based on full acceptance of “the Treaty of Rome, the common external tariff, the abolition of the internal tariff, the common agricultural policy and the movement towards economic union.”

Wilson opened the debate with a speech lasting nearly one and a half hours, and most of it was devoted to economic matters relating to agriculture, the movement of capital and the Commonwealth. On the political dimension, Wilson was mostly interested in how membership would affect relations with Russia, and issues of peace and security in general. He was less concerned with ‘sovereignty’ although he did make the extraordinary claim that “by far the greater part of our domestic law would remain unchanged after entry.”

There was also greater concern than in 1961 over the dangers of exclusion. Sir Alec Douglas-Home argued “the country is in danger of being put out of business” although he conceded that “the difficulties of grafting Britain on to a Community which will achieve complete integration by 1970 are much greater than they would have been five years ago.” By 1967, immigration was also a much bigger issue than in 1961, but this did not prevent Wilson from echoing Macmillan in his emphasis that “the Government do not believe that there is likely to be any large net increase in the number of EEC nationals coming here to work.”

Backbenchers of both parties preferred to debate the issues of principle. Duncan Sandys, for example, was the precursor of Michael Heseltine in arguing that “in this age of super-states, Britain by herself is no longer in a position to exercise any really effective influence in international affairs.” Socialists such as Michael Foot feared a capitalist conspiracy (just as Corbyn does today). Internationalists argued that internationalism does not “reside behind tariff walls.” And it was the Ulster MP Captain Lawrence Orr who expressed most succinctly the sovereignty concern: “It is a loss of sovereignty which can never be regained. Once we sign the Treaty and are in, every kind of sanction could be used against us, and would be used against us, if we sought to abrogate it.” The Labour MP Manny Shinwell urged that more attention be paid “to what is being said on the other side, on the Continent”, a warning ignored by the Foreign Secretary, George Brown, who stated “we expect to get in.”

But what distinguished this debate from its equivalent six years earlier was that Conservative opponents of entry tabled their own critical amendment, albeit unsupported by the official Opposition. While only 26 Conservatives supported the ‘rebel’ amendment (although 62 MPs voted against the application itself), it was the first manifestation of divisions to come. Before leaving the 1967 debate, the temptation to quote Percy Grieve, Dominic Grieve’s father, is too great to resist in illuminating the family atmosphere in which his son grew up: “The changes in law resulting from accession to the Community would not affect the ordinary man or woman in this country, who simply would not realise the changes resulting in the laws dealing with commerce and restrictive practices.”

– – –

Everyone was agreed that the final debate of principle, in 1971, was different from its predecessors because here Parliament was asked to approve a final decision to join “the European Communities on the basis of the arrangements which have been negotiated.” Inevitably, therefore, the debate was not just about the principle but also the terms of entry.

The consequence of this was an inordinate amount of time was taken up by a boring quarrel between the two front benches as to whether Harold Wilson and the Labour Party had again changed their minds and could have negotiated something better. Wilson denied the former, and asserted the latter. Heath and the Conservatives in turn accused Wilson of subterfuge and lack of principle. It was a forerunner of what we are seeing today. Wilson had no more chance of winning better terms in 1971 than Corbyn has in 2019. But the farce of pretending otherwise has to be enacted, while the issues of principle are evaded.

However, a six day debate afforded plenty of opportunity to debate every angle, and the arguments expressed on this occasion retain a resonance for us today. Dennis Healey described the debate “as the end of the beginning of an argument which has lasted for more than 15 years.” Peter Shore put it better in saying “I sense that neither here nor in this country are we at the end of this great debate but rather at the beginning.”

When it came to the economic dimension, the quarrel was over familiar ground, although regional policy had assumed greater importance for Labour because of its radically different approach. Also, this debate contained for the first time detailed discussion over Britain’s net contribution to the EEC Budget, which the Government was keen to downplay but where Labour was ultimately vindicated – culminating in Margaret Thatcher’s struggle to reduce this country’s net contribution in 1984. Nevertheless, much of this argument was about statistics, growth rates and forecasts about which, like today, neither side had any justification for certainty. One could almost substitute the numbers cited then for the numbers extrapolated now, and be none the wiser. As in 1967, for Sir Alec Douglas-Home the question was simple: “Where do we find the jobs for our people unless we take advantage of an opportunity like this?”

But the political implications were not to be crowded out by disputes over “the terms” or economic projections. These implications now included to a greater extent than before the issue of defence, as Heath was suspected by an increasingly unilateralist Labour Party of planning an Anglo-French nuclear force. Essentially, the sovereignty argument was still between those who, like Keith Joseph, believed “it will never be requisite upon us once we are in the Community to take any decisions, or to join in any decision, against our national interest”; and those like the Labour MP Michael English who pointed out that “if every member of the Cabinet had a right of veto, there would be no Cabinet decisions.”

A Conservative MP called Peter Trew predicted “The British people could find themselves on a bandwagon travelling in a direction not of their choosing and at a speed which they could not control.” Tony Benn argued that defence and foreign policy “are to be put in for harmonisation with tariffs and taxation.” Derek Walker-Smith referred to “the new fashionable expression” of ‘elitism’ and concluded “If this is the product of elitism – government by community decree, with Parliament a rubber stamp – new elitism is old autocracy writ French. If this is elitism, then give me democracy.”

– – –

So, what are the main lessons of these debates for today’s MPs? It was Benn who said in the debate: “I think that history is unlikely to confirm any of our certainties expressed, and that what the historians will want to know is how deeply we thought about the possibilities.” Events have occurred which were not fully perceived. Perhaps the most important is the unification of Germany and the break-up of the Soviet Union. The second is the enlargement of the EU. It is harder now than then to argue that the EU does not embrace most of Europe. Another development not fully acknowledged was Scottish nationalism, although the Tory MP Lieutenant Colonel Colin Mitchell (known to his contemporaries as “Mad Mitch”) got it right when he argued that “nation states are being eroded, but are being eroded not only from above but from below as well, and with the weakening of nation states there are supra-national groupings and sub-national independence movements.” The Northern Ireland border was hardly discussed, although Stanley McMaster, the Unionist MP for Belfast East, feared the movement of labour from Eire to Ulster.

But just as striking are the similarities. For example, then as now there was concern over Britain’s influence in any alternative grouping. The Labour MP Ronald Brown, who was George Brown’s younger brother, stated “I object to this country joining any grouping (such as EFTA) in which we have a subordinate role. This is the great value of our joining Europe, that we will be on equal terms with our partners.” This is precisely what is argued by today’s critics of ‘Norway-plus’ and its variations. It was also frequently argued that the Government failed to listen to the Community. One can’t help wondering whether it would not have been better for everyone if the advice of “people of some authority” in the Common Market, quoted by George Brown in 1961, had been followed: “If you are coming in believing that this is no more than an economic arrangement, we would much rather that you did not come in.”

Finally, there is the issue of public consent. There were just as many complaints then as now over the Government’s attempts to influence public opinion and the illegitimate use of taxpayers’ money. There were frequent calls for either a general election or a referendum. Benn again put it best when he said “There are such sharp differences of opinion within each party that it would not be possible to decide the issue at a general Election, even if the leadership of the two major parties were taking contrary views.”

That was the dilemma then, as it is today. Parliament and Parties have always been divided on this issue. ‘Sovereignty’ was always the key concern, despite arguments over its meaning. The question now is whether those divisions within the Conservative Party which have been apparent ever since Macmillan made his first application (and before) are finally bringing about its destruction. If so, nobody can say they weren’t warned.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Will this be the year in which the British people “come to heel”?

Westlake Legal Group Screen-Shot-2018-12-31-at-10.45.58 Will this be the year in which the British people “come to heel”? ToryDiary Theresa May MP Second EU Referendum Norway Lord Kerr in/out referendum House of Commons (general) Highlights Europe EU Referendum EU ERG Brexit

The phrase is John Kerr’s – or, to use his title, Baron Kerr of Kinlochard’s.  Lord Kerr is a former Ambassador to the EU, as is the way of these things.  He is also by his own account the author of Article 50 of the Treaty of European Union.

Kerr is so fond of the image that he used it twice, almost a year ago, during a debate in the Upper House.  “We will huff and puff but, in the end, we will basically come to heel,” he said.  He has been proved right about money (he said that the Government would agree to pay up) but wrong about a bespoke deal (which Theresa May has achieved, like it or not).  He later applied the phrase to the prospect of No Deal, claiming that the Government will “come to heel in the end, probably quite quickly”, in order to avoid it.  We will discover this year whether, on this third count, he is correct.

Implicit in his last claim was the assumption of a Withdrawal Agreement that is roughly the shape of the present one.  It is imaginable that the EU will eventually offer a significant concession on the backstop rather than face the consequences of No Deal, which would impact both sides of the negotiation severely.  But time is running out, and we doubt it.

If such a change is not forthcoming, the Commons may eventually swallow May’s deal none the less.  However, it didn’t have enough support to pass last month – the Government didn’t dare even to put it to a vote – and there is no sign that anything much has changed since. So if MPs vote it down instead, the likelihood is that MPs will have to choose between No Deal, No Brexit or a compromise option such as Norway Plus.  The spirit of Kerr’s remark animates the campaign for a second referendum, which has been striving to kill off Norway Plus first, before turning its attention to No Deal.

The stage is therefore set for a confrontation between perhaps five-sixths of the Commons, most of which was against Brexit and much of which abhors No Deal and…who exactly?  Vote Leave wound itself up after the EU referendum.  The Government is weak and under-prepared for No Deal – deliberately so, overall.  The ERG and its allies are a minority.

Each New Year invites the claim that it will be different – even decisive, in a way that its predecessors were not.  In one sense, this is unlikely to be true about 2019.  Brexit may happen, and Britain none the less find itself back in the EU within ten years.  Or it may not…and the long-anticipated Italian banking crisis take place later this year, leading to the reworking of the Union as we know it, with the UK in some new outer tier.  There is no way of anticipating these known unknowns, let alone the unknown unknowns.  Britain’s history of engagement with the European project stretches back over 50 years and may reach forward for another 50 – or more.

None the less, we must be ready for a face-off between the default setting, No Deal; the hostility of most MPs to it…and the ticking away of the clock.  What may well prove decisive is Parliamentary procedure, and the precise means required to delay or obviate Brexit.  (A second referendum would require an extension of Article 50, plus a Bill.)

We close our opening to 2019 by reflecting on Kerr’s favourite phrase.  Into those mere three words is packed a universe of assumptions: about the supposed inevitability of Britain remaining in the EU – despite the British people deciding otherwise, in the biggest popular vote in our history; about the relationship between rulers and ruled; about the omniscience of an ascendancy class that crosses national boundaries, and so can’t be held accountable at all. Coming to heel means knowing your place.  The implications for even a country as historically stable as Britain are baleful.

Kerr has whistled, clicked his fingers, and now expects us the rest of us to fall into line behind the class of which he is a member, conceding our place in the natural order of things.  If we do so, we cannot simply blame the absence of Vote Leave, the ascendancy’s sense of ownership and entitlement, or even the Government’s failings (not to mention those of Jeremy Corbyn).

Ultimately, it’s up to those who believe that the referendum pledge must be honoured to ensure that it is, by every democratic means available.  The mass of voters which is so minded includes many who voted Remain in 2016 as well as most of those who voted Leave.  Are we lapdog, bulldog – or something else entirely?  This year, we will find out.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com