How our Constitutional Crisis will become a National Crisis… and what can be done to stop it.

Used under Creative Commons Licence — copyright Catherine Bebbington/Parliamentary Copyright

At its heart, a ‘constitutional crisis’ is actually quite an underwhelming concept: it’s when no one can work out who’s in charge.

The point at which a constitutional crisis becomes a national crisis is when the resulting indecision starts impacting our daily lives.

The next national crisis for the U.K. will be if governmental paralysis leads to a no-deal departure from the European Union on 12th April 2019. This is the new ‘cliff edge’ departure date that was agreed at the European summit on Thursday, should Theresa May’s deal fail to pass the House of Commons this week.

If her Brexit deal does get through, then the U.K. has been granted until 22nd May to allow time for the accompanying legislation to be passed by Parliament.

At the time of writing, no one is quite sure whether Theresa May will survive this coming week, never mind whether or not her Brexit deal comes back for the third time. If it does return to the Commons, the overwhelming opinion amongst the commentariat is that it will be defeated — perhaps by even more votes than last time.

There are suggestions that if she promises to stand down immediately after the vote and allows a new Prime Minister to lead the negotiations, the deal might have a chance of success. However, even if this worked, it wouldn’t avert a crisis, because in order to avoid a no-deal scenario, not only would the Conservatives have to coalesce around a successor in order to avoid a lengthy leadership election, but that person would have to ensure that every single divisive detail of the Withdrawal Agreement is codified into U.K. law by what would become our revised departure date of 22nd May.

Now I don’t know about you, but I can’t see that going particularly smoothly — no matter who is at the helm.

Should May’s successor need longer to get the legislation through, legally, the latest our departure date could be delayed would be 1st July (assuming all EU leaders unanimously agreed), not a great deal of time for a government and Parliament that has been pretty gridlocked for the last two years.

Assuming May’s deal is not brought back for a vote or is defeated, the critical date shifts to Friday 12th April, not only because it marks the point that the U.K. falls out of the EU without a deal if all else fails, but also because it is the deadline by which the EU would have to grant the U.K. a further Article 50 extension. To add further complication, the E.U. have said that if the U.K. does seek an extension that goes beyond 12th April, it will have to participate in European parliamentary elections — another anathema to the government and the hard-right factions of the Conservative Party, many of whom would prefer a no-deal Brexit. [At one point it was also believed that in order to take part, Parliament would have to vote to reverse the repeal of the 2002 European Parliamentary Elections Act, although it has since been pointed out that this isn’t necessary.]

So, at the moment, the signs for averting a no-deal scenario are not looking good. The E.U. now worries that a ‘no deal’ is the most likely outcome. Prominent journalists like Robert Peston tend to agree.

Recently leaked cabinet documents demonstrate how ill-prepared the government is for a no-deal scenario and the chaos that could ensue. But as I’ve written about before, what concerns me equally is the long-term effect of a no-deal Brexit and the hard-right handbreak turn it could impose on the British economy.

But there is a solution at the heart of this crisis that is at once both so utterly simple, and so horrendously complicated.

Someone who can command a majority in parliament needs to take charge.

It’s looking likely that on Monday, Parliament will pass a cross-party amendment that will seize control of the parliamentary timetable this Wednesday and force ‘indicative votes’ — where MPs choose their preferred next steps.

Whether this produces any kind of consensus is anybody’s guess. You mightn’t think it, but parliament is dominated by MPs that favour a ‘soft’ version of Brexit, so it is quite possible that the so called ‘Common Market 2.0’ plan could garner significant support. This favours the U.K. remaining in the EEA (European Economic Area) as a member of the single market and a customs union.

There is also the so-called ‘Kyle-Wilson’ plan which would result in parliament passing May’s deal but on the proviso that it is ratified by the public in a second referendum. The hitch is that this strategy was planned as an amendment to May’s deal itself. If she doesn’t bring it back for another vote, then parliament would have to be given this choice in another way.

If either of these initiatives worked, it would be pretty seismic, but there is also a way they could work hand in hand.

Parliament could instruct a rewriting of the Political Declaration (the non-legally binding ‘forward thinking’ part of the Withdrawal Agreement) along the lines of the Common Market 2.0 plan. This solves the Northern Irish border issue, but prevents the U.K. from striking its own trade deals. The hard truth: you can’t have one without the other.

Then this could be put to a public vote through the Kyle-Wilson plan: the choice being to accept the revised withdrawal deal which commands parliament’s support, or remain in the E.U.

It would make sense to put this to a second referendum, considering how different — i.e. more grounded in reality — the Brexit on offer would be, when compared to the fairyland rhetoric of the past three years.

But who would lead this initiative? Who would implement it?

First of all, Parliament needs to coalesce around a clear way forward. That alone is far from certain.

Then, as any instructions Parliament gives to the government would be in the form of amendments to non-legally binding motions, theoretically the government could ignore them. Politically that’s very difficult to do of course, but equally, the chances of the government obediently implementing the complete antithesis to its core Brexit strategy — no matter what level of support there is for it in Parliament — is very slim indeed. For one thing, it would irreparably tear the Tory party apart.

There is another way.

Firstly, it’s important to clarify the difference between the confidence vote that took place in the Prime Minister — an internal Conservative Party affair — which, under existing rules, can’t happen again until December, and a confidence vote in the government — which can be tabled as many times as the opposition wants.

The first step would be for Labour to force another no-confidence vote in the government. This would take place after May’s deal is defeated yet again, the government refuses to table it for a vote, or signals they will not adhere to the compromise agreed by Parliament through the indicative votes.

I believe that this time it would have a chance of passing. I think Dominic Grieve would be the most likely candidate on the Conservative benches to resign the whip and advocate to his colleagues that they do the same to bring down their own government.

But they aren’t going to do this unless a cross-party plan for what happens after that is agreed in advance.

Maybe this could be a general election, and I think the E.U. would allow a long extension of Article 50 for this to take place, albeit the U.K. would still have to participate in the European elections too.

But as I believe it’s unlikely that the Conservative members of this coalition would agree to this outcome, what would the alternatives be in the aftermath of a successful no confidence vote?

Technically the ‘government’ is the person (and team around them) who can command a majority in the Commons. There is no reason — in theory — why an emergency Labour-led national government couldn’t be formed, which commands a majority through the support of the current opposition and a handful of current Tories. The new administration would implement the two-part “Common Market 2.0” and “Kyle-Wilson” plan I describe above. The first part of this plan would satisfy those who want to ‘honour the 2016 referendum’, the second part, those who want the final deal ratified by the public. It would mean the leader of this coalition — the new Prime Minister — would request a further extension to Article 50 before 12th April and the UK would take part in the European elections, followed by a referendum. After that, an early general election would be the most likely outcome, as it’d be unlikely that such a government would last very long.

In pure Brexit policy terms, there isn’t a great deal that separates the would-be members of this new coalition. If Brexit must happen, then all of them: Labour, the SNP, the Liberal Democrats, TIG, Plaid Cymru, the Greens, and the Tory ‘moderates’, support a version that maintains membership of the single market and a customs union. Meanwhile, Labour are making positive noises about both the cross-party Common Market 2.0 and Kyle-Wilson plans.

No, the problem here wouldn’t be policy differences. The problem would be personalities and party loyalties. The problem would be that our parliamentarians are human, and — by virtue of having the stomach to be in politics — are generally of the more obnoxious variety at that.

So whilst, in the face of a government drifting into paralysis, the only way to prevent a no-deal disaster is for Parliament to take control, even this wouldn’t be enough.

The more important question is: who will lead a government that is willing to carry out its instructions?

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