Deal or No Deal

One of the key – and undoubtedly most persuasive – points made by those advocating leaving the EU in last year’s referendum campaign was “take back control”. Always illusory in an interdependent world, I want to explore its validity in the context of a future vote in the House of Commons at the end of the 2-year negotiation period. I’ll end up arguing that Parliament compromised its sovereignty when it agreed to hold the referendum in the first place!

Big Ben EU flag
Parliament and the EU

It has been an essential part of our unwritten constitution for over 300 years that parliament is sovereign. This was the point argued by Labour (and a few constitutionally-minded Tories) forcing a concession from the Government for a Commons vote before the Article 50 deadline in March 2019. It feels that this concession was dragged out of Theresa May only on account of the extreme weakness of her position. And as so far reported, May offered only that Parliament will be invited either to accept the agreed deal (if any) or crash out of the EU and trade on WTO terms.

2-Way or 3-Way?

May’s offer, clearly, gives MPs a 2-way choice: deal or no deal. For Parliament to be truly sovereign, reason demands a third option: withdraw from the Article 50 procedure and remain in the EU on current terms. The lawyer who helped draft Article 50 says it’s reversible; others have disagreed. The rabid, irreconcilable Leavers (who have made all the running so far) would argue this third option is politically impossible as it would be denying “the will of the people”. But remember the vote was 37% leave, 34% remain, 29% no vote. So, naturally, I disagree. The will of the people is many things, often contradictory. And David Cameron assured the Commons that the referendum was non-binding on Parliament.

I’ll discuss the political chances of a 3-way vote later; first, let’s discuss the practicalities. Parliament doesn’t do 3-way votes. During voting, MPs traipse through one of two doorways: Ayes and Noes. The whole process, constitutionally and architecturally (two doorways), is binary. Secondly, there’s a whole business of motions and amendments. But, in principle, two votes would be needed: (a) accept or reject the proposed deal and (b) leave on the basis of the deal or no deal (depending on the first vote) or withdraw from the Article 50 process and stay in the EU.

So far, so logical. But, I hear you say, which vote is taken first? Good question, I reply. From a purely logical and practical point of view, it doesn’t matter. But the politics is very different! The deal / no deal vote must come first: putting the status quo against an uncertain alternative is not the action of a politically weak leader.

Spectrum of Choice

We first need to use our logic and reason a bit more to establish the relationship between out three choices. It’s easy to see that two of them: stay in EU and crash out are polar opposites. It’s equally obvious that a deal will sit somewhere on a spectrum between these two extremes. Deals always mean compromises. So any agreed deal will have its “Leave-ish” elements and its “Remain-ish” ones. In other words, it won’t satisfy everyone. But will it satisfy anyone?

Let’s explore this. At the two extremes of public opinion, the answer must obviously be “no”. But there is a difference between the two extremes. In my observation, people who most strongly support Remain do so for rational reasons based upon evidence given by (much-derided) experts and most often about the impact on the economy and jobs. At the Leave end, the people (full declaration: whom I called “rabid” earlier!) appear to me to be totally irrational. The desire to leave is driven by a mixture of nostalgia, post-imperial delusion, xenophobia and (for a minority) racism. Plus, of course, a good deal of “fuck you all, no one listens to my – very real – grievances”. It’s no coincidence that the strongest predictor of referendum voting statistically is the amount of education a person received: the more educated, the more likely to have voted Remain.

The important point about this analysis is that only one of these two groups is susceptible to reasoned argument. There is an asymmetrical public order threat lurking behind all this.

Will the Deal Pass the Commons?

The short answer is “no-one knows!” Anyone who claims they can predict this, in the light of recent events, is a fool. But we can put some boundaries around this. (By the way, all this assumes Theresa May will still be PM by the time of the vote – far, far from a foregone conclusion!) Both main parties’ MPs are split on how they voted in the referendum: the Tories roughly equally, Labour with only a few Leavers. Their voters are split too, but with Tories generally more Leave and Labour more Remain. The Lib Dems gained practically no votes in the 2017 general election from their consistent Remain stance. But, come the Big Vote, what then?

Firstly, it will depend on whether May sticks to her guns on offering only one vote: deal or crash out. If she does, many Remain MPs will vote for the deal as the lesser of two evils, even if the final agreement is more Leave-ish than Remain. But the opportunity to possibly bring down the government if the vote goes against the deal will complicate the motives of opposition MPs. And, of course, where the deal sits on the Leave / Remain spectrum will influence MPs’ choices.

On the other hand, if May concedes a second vote up front (and political pressure – Labour plus principled Tory Remainers – may force her hand), the dynamics change. More MPs may choose to reject the deal in the hope of retaining the status quo. But this has its dangers: the “will of the people” argument, clearly present in the Commons vote to nod through the triggering of Article 50 earlier this year, will raise its ugly head with even greater frenzy: the stakes are really high now! So the risks of a crash out may be increased in this case.

Can the Government Survive?

Could May and the Tory government survive a defeat in the Commons on a motion to accept the negotiated EU deal? Probably not. The chances of a fall are greater where May has refused a second vote. The most important, far-reaching plank of government policy by far in my lifetime is rejected by MPs. It’s impossible to see May survive even one day: think of David Cameron on 24th June 2016.

So what happens next? May tenders her resignation to the Queen. She may or may not offer to stay on a caretaker PM. The Queen may or may not accept this offer. Constitutional crisis already! Is there another current Cabinet member who could unify the country and see us through the next critical steps? Obviously not! – just list the names in your head. (And that’s without factoring in how many of the current Cabinet members will have been forced to resign through sexual misconduct!)

So the most likely outcome is another general election – the third in four years. Meantime, the EU clock to 29th March 2019 keeps ticking. Would any caretaker PM want to bind the hands of the next parliament? I hardly think so. The interim PM may well ask the EU to please stop the clock. The EU may or may not agree – but if they do, there’s bound to be a price which ardent Leavers will hate even more. But, in the chaos, that second commons vote (which is now “stay or crash out”) is far from certain to happen at all, whether May had offered it or not.

What’s more, crashing out of the EU whilst there’s no UK government would cause huge disruption – but someone would try to sort out some solutions to keep food and goods flowing, planes flying and so on. Whether it’s a temporary continuation of EU membership or some botched-up set of arrangements, the detail will be agreed between UK and EU civil servants. The UK’s de facto policy making will have been taken out of Parliament’s hands!

Where’s Parliamentary Sovereignty?

Well, that’s all very exciting, but where does it leave Parliament’s alleged sovereignty and the UK’s “taking back control”? The logic of the above argument is that, if Parliament rejects the government’s agreed EU deal, the government falls and Parliament loses control of what happens. And it loses its sovereign right to the second vote. If it votes to accept the deal, suspicion will always remain that this happened only to avoid the alternative chaos. So like the traditional shotgun marriage, Parliament cannot be said to have exercised its free will – and so is not sovereign.

So, heads you lose, tails you lose. The only way to avoid this is not to call a referendum in the first place.


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