The Conservative Cabinet has spent the past month in public controversy about the customs regime to be applied on the island of Ireland after Brexit. It is widely recognised that neither of the two favoured solutions canvassed within the Cabinet, a “customs partnership” and “maximum facilitation”, is acceptable to the European Union. Less widely understood has been the fact that this purely British debate ignores entirely the much more urgent Irish issue, namely the finding of an acceptable text for the “backstop” guarantee sought by the Irish government that intra-Irish trade (and broader social exchanges) will in all circumstances continue to flow freely after Brexit. Even full British participation in a Customs Union with the EU would not be sufficient to guarantee this freedom. The Irish government rightly points out that substantial elements of the European internal market would need to be retained in Northern Ireland as well, a reality for which the British government appears as yet wholly unprepared.
Many observers draw from this extended and disoriented polemic the conclusion that the cabinet is simply incapable of negotiating a withdrawal agreement for Brexit with the EU. Its solipsistic divisions are too deep, and the task with which it is confronted so intractable, that the UK is at serious risk of “crashing out” of the EU on 29thMarch 2019 without a transitional arrangement of any kind. More optimistic commentators recognize this risk but point to the overwhelming cross-party majority within the House of Commons that would react with horror to the prospect of a non-consensual British withdrawal.
It would be surprising indeed if this majority among MPs were prepared to tolerate a disorderly and catastrophic Brexit as a result of governmental incompetence and self-absorption. It would be just as surprising if the Commons were prepared to tolerate radical amputation of the British economy from the European mainland by withdrawal from both the Customs Union and the European single market in ten or thirty months from now, as appears to be Mrs. May’s underlying intention. The Brexit tragicomedy has, however, always been full of surprises, usually unpleasant. There are at least two important minorities within the Commons well placed to thwart effective action by the majority of their Parliamentary colleagues to prevent a disorderly or economically disruptive Brexit. They are the radical Eurosceptics on the Conservative side and the unconditional supporters of Mr. Corbyn’s leadership within the Labour Parliamentary Party.
The ERG cabal…
Within the Conservative Parliamentary Party there is an important and well-organized minority, centred on the European Research Group, that has watched with growing unease the progress of the Brexit negotiations. They are unconvinced of the need for any further payments to be made into the European budget after March 2019 and view the proposed transition period until the end of 2020 with intense suspicion. Many of them accept that there will be some initial economic dislocation from British withdrawal but believe that any transitional disadvantages will be rapidly outweighed by greater opportunities for the UK as a globally competitive economic actor freed from the shackles of Brussels. The prospect of a non-consensual Brexit holds no terrors for this minority. Over the past twenty years, the most radical Eurosceptics within the Conservative Parliamentary Party, backed by most of the Party outside Westminster, has been able to exercise a veto over Tory European policy. Any attempts by the Prime Minister to move towards accommodation with the EU have rapidly run into the unbending opposition of the ERG. Its members now hope that if they can continue exercising this veto for just a very few more months, the UK will automatically leave the EU in March. They do not need to advocate specific alternative policies to those put forward by the Prime Minister. They simply need to continue their success in frustrating her initiatives.
…and Corbyn’s inner circle
A parallel analysis exists in the Corbyn entourage. He and his closest advisers have never concealed their hostility to membership of the EU. They are happy to claim reinforcement for this fundamental hostility from specious arguments relating to the large number of votes cast for “leave” in many traditional Labour constituencies in the 2016 referendum. Moreover, an abrupt and damaging Brexit in 2019 might well accelerate the date of the next General Election, the central goal of all Mr. Corbyn’s political activity since last year’s election. Consciously or otherwise, he is following the Napoleonic doctrine of “not interrupting an enemy when he (or she as now) is making a mistake.” In a way probably not foreseen by the drafters of Article 50 of the Lisbon Treaty, the automaticity of that treaty creates perverse incentives for inaction for Mr. Corbyn as much as for the ERG. The existence of a majority of MPs opposed to “hard” Brexit is an undoubted fact. Their capacity to make their majority effective in the Commons is much less certain, given the tactical advantages of which the ERG and Mr. Corbyn dispose in their respective parties. As long as the present party landscape continues to dominate British politics, they will continue to enjoy these advantages.
A reshaping of British party political structures is conceivable but very unlikely by the autumn of this year, when the Commons is due to have a “meaningful vote” on Brexit, whether on a withdrawal agreement that Mrs. May has managed surprisingly to cobble together; or on the absence of an agreement leading to a catastrophic Brexit. There is some reason to believe that this vote or at least some aspects of it will go against the Conservative government. Its inevitable response will be a refusal to rescind the Article 50 notice of withdrawal and an attempt simply to await the much-heralded date of 29th March 2019, when Brexit will become an automatic reality. The majority of MPs who on this hypothesis have voted against the government will then have three essential choices: acquiesce in the government’s obduracy; vote in a new government; or seek another way of keeping the issue of Brexit alive, for instance by a new government negotiating mandate or another referendum. It would be tempting, but humiliating for the Parliamentary majority to accept the first option; tribal party loyalty is probably still too strong in the Commons to allow for the second option; and the only realistic way of pursuing the third option is likely to be the holding of a referendum on the “Brexit terms” given the unlikelihood a Conservative government would accept an (anyway probably impracticable) instruction from MPs to reopen the Brexit negotiations.
People’s second vote
In a rational world, the holding of a referendum on the Brexit terms would hardly be a controversial matter. In a representative democracy, Parliamentarians should always think long and hard before acquiescing in governmental decisions which they believe to be demonstrably damaging to national welfare, whatever the immediate popularity of these decisions. Parliament agreed in 2016 to the holding of an advisory referendum, the outcome of which was a narrow vote to leave the European Union. After two years of negotiations, it is now considerably easier to predict both the likely terms of British withdrawal and the economic consequences flowing from Brexit. The course of the Brexit negotiations can only have reinforced the doubts and hesitations of those many MPs who in 2016 voted “remain.” Nothing could be more logical than for Parliament now to stipulate, on a cross-party basis, that a new referendum should be held to consult the electorate further before Brexit becomes irreversible. This referendum would admirably combine the twin principles of Parliamentary sovereignty and popular sovereignty. The shrill and implacable opposition of many supporters of Brexit to any such proposal suggest that they harbour an entirely selective commitment to either the parliamentary or the plebiscitary aspects of democracy.
If the MPs hostile to leaving the EU on the terms (or absence of terms) proposed by Mrs. May conclude that a new referendum to confirm or set aside the finding of the 2016 referendum is the proposal around which they can all rally, an immediate further question that will present itself is the text of the referendum. From the point of view of those most hostile to Brexit, it would clearly be desirable if one of the options contained on the ballot paper were to withdraw entirely the Article 50 notification. Such an option would also correspond to political reality. Our EU partners are extremely unlikely to be willing to prolong the uncertainty surrounding Brexit by beginning to renegotiate its terms after an unfavourable referendum vote. It may, however, be politically and administratively simpler to confine the choices on the ballot paper to straightforward acceptance or rejection of the proposed Brexit terms, thus avoiding the accusation that the referendum of 2019 is simply a repeat of 2016’s consultation. Passing the necessary legislation to hold a referendum in the first half of next year would anyway be a time-consuming process. It would be made yet more protracted by avoidable discussions on the precise text of the question to be put, or even whether some form of differentiated choice should be offered the voters. Our EU partners would very probably agree to an extension of the Article 50 negotiating period in order to allow a referendum, but it would be unwise to test their patience too far. They would undoubtedly prefer the referendum to be held before the European Elections in May or as soon as possible afterwards.
Party political realignment
Moreover, even if the ballot paper contained no formal option to remain within the EU, the political earthquake caused by a popular vote to reject the government’s terms would certainly be sufficient to throw into fundamental doubt the whole Brexit project. It is inconceivable that after such a rebuff by the electorate the Conservative government of the day could brazenly continue with its intention of leaving the EU by the automatic operation of the Article 50 procedures. British politics would look very different on the day after a referendum if the electorate had voted to reject the Brexit terms presented by a Conservative government. It is in any case difficult to believe that the present anomalous structures of the largest British political parties could survive unscathed the divisions of a referendum campaign. All those who favour a general realignment of British party politics have a powerful incentive to promote a further European referendum with its likely fragmenting effect on the established parties. The public divisions within the Conservative and Labour Parties on European policy have been of unparalleled scale over the past two years. A referendum campaign is likely to make these internal tensions unbridgeable, irreparable and permanent.
The virulent hostility of many among those favouring Brexit to countenance in any circumstances a further referendum suggests to cynics a lack of confidence in their ability to repeat their narrow victory of 2016. But in fairness it must be said that many opponents of Brexit are unsure that public opinion has yet shifted from its preferences of 2016 far enough to guarantee a vote against the Brexit terms in 2019. Some moreover fear the possibility that a narrow vote next year against Brexit would simply perpetuate and intensify the rancid European debate in public and political opinion, with no possibility of resolution. Despite these undoubted challenges, pro-European MPs will nevertheless later in the year be confronted with a fundamental question of conscience: whether they will take the path of least resistance and permit a form of Brexit which they firmly believe to be damaging to the country, solely in deference to a narrow victory in an advisory referendum two years ago that was won on the basis of a doubtful franchise, probable illegality and certain mendacity. It will be a chastening day for all those who care about representative democracy if they are prepared in these circumstances to do nothing beyond futile protest. A further referendum appears the only politically realistic and materially attainable option available to MPs wishing to go beyond mere protest. Many factual and political arguments would now be available to the pro-EU side in a 2019 referendum that were absent in 2016. It might well be that the reconfiguration of British politics likely to emerge from a referendum would enable a more rational and enlightened European debate thereafter. There are of course many problems and uncertainties involved for pro-Europeans in staging a referendum next year. Withholding one will cause for them even more problems and the uncertainties will only be replaced by yet more damaging certainties. For those who wish to campaign effectively against what they know to be the national self-harm of Brexit, a referendum on the withdrawal terms is not just the best option, it is the only realistic option.