Brexit Impasse: What happens if the Government refuses to do what Parliament tells it to?

Image by mninha and used under Creative Commons licence

This week, as Theresa May hesitated to bring back her deal for the third time, Parliament voted to seize Wednesday’s agenda from her so that they could hold a series of ‘indicative votes’ in an attempt to break the Brexit impasse.

With a majority for May’s deal still looking a distant prospect, MPs will vote on a range of options to see if they can coalesce around a common consensus to move forward.

And two quite remarkable things have happened the night before the votes.

Firstly, Tory Nick Boles produced his motion for the indicative votes: and it was notable because it was a Brexit strategy that actually made sense. It was grounded in this place where Brexit strategy rarely ventures: reality. It instructs the government to seek membership of EFTA (the European Free Trade Association), it instructs them to negotiate a customs union with a common external tariff and it insists that such agreements are written into the political declaration — which the EU has consistently said can be renegotiated should the U.K.’s red lines change.

Now, I’m not saying there aren’t issues with this plan — not least the small problem that the EFTA countries don’t like us very much (I can’t think why) — but it was so refreshing to see a strategy that wasn’t a mush of contradictions: something that both the Conservative government and Labour leadership’s plans have been from the very start.

I sincerely hope that Jeremy Corbyn drops his own muddle of overlapping options for the indicative votes (what’s the difference between the “Labour Plan” and “Common Market 2.0”?) and swings behind the Boles motion. Then if the Kyle-Wilson plan can be reengineered to put that to a referendum, it means that finally the public will be offered a genuine choice between a Brexit that doesn’t destroy the country (which would be nice), or remain.

The second thing that happened — but didn’t really make the headlines — was that Sammy Wilson of the parody troop of liberal stealth Remainers, otherwise known as the DUP, suggested that he’d prefer a year-long extension to Article 50 (i.e. delay Brexit for a year) than May’s deal. If this ends up becoming the party line, then that is pretty seismic because firstly the permanent loss of their votes means May’s deal is almost certainly dead (if it was ever alive), and secondly, there could quite easily be a Commons majority for a further extension of Article 50 beyond April 12th.

Ministers have been repeatedly saying that they may ignore the outcome of the indicative votes on Wednesday. Unfortunately, legally they can — because they are just non-binding motions, not amendments to legislation. If this happened, then we’d be entering into major constitutional crisis territory.

So if the government do ignore a Parliamentary consensus around a Brexit plan, or an instruction to seek a further extension to Article 50 to avoid No Deal, what options are there to break the deadlock?

Nick Boles has already said that if the government ignores Parliament then he and his cross-party group of MPs would seek to expediate a Private Member’s bill which will put those instructions into law — therefore forcing the government to act. It would be remarkable and unprecedented. But this would mean them taking control of the Parliamentary agenda yet again, gaining the sympathies of the Speaker (which to be fair they’d be likely to get), and for the bill to travel unhindered through both the Commons and the Lords and receive royal assent before 12 April.

The second option will be to try and trigger a General Election or form a government of national unity. These options would be even more drastic, requiring a successful no-confidence vote in the Government, but wouldn’t be an impossible task in my view, as I discussed on my last blog.

Thirty Conservatives voted for the ‘Letwin amendment’ last night, which stripped the government of its authority on Wednesday to allow for the indicative votes. It was a bit like a successful ‘mini’ vote of no confidence. If the government then ignores the outcome of these indicative votes, these thirty Tory MPs would be prime candidates to vote with the opposition in a vote of no confidence in the government. It would take about 15–20 of them to resign the whip in order to offset the ‘Hoeyite’ Labour MPs who tend to vote with the government.

Whatever happens, I think the most important question we are going to be facing isn’t so much whether Parliament will rally round an alternative Brexit plan (although that is far from certain), or whether the shift in the DUP’s messaging means that both May’s deal is finished AND there’s a majority to avoid a No Deal on April 12th.

The most important question is simply whether the government will be willing to carry out any instructions it is given and what Parliament can do if it refuses to do so.

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