Constitution Unit Monitor 70 / November 2018
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1 Constitution Unit Monitor 70 / November 2018 – agreed: polls found the plan’s opponents among the Brexit: The uncertain public outnumbered its backers by around three to one. road ahead European leaders were also critical, and finally killed off the plan at the disastrous Salzburg summit in September. Exit day – when the UK is scheduled to leave the Since then, UK and EU negotiators have been working European Union – is now little more than four months frantically to resolve the crucial blocking point, regarding away. Yet all bets are still off as to what form it will take, the Irish border (see pages 2–3). Whether the mooted or indeed whether it will even happen. This is partly November summit to sign off a deal can be resurrected because the UK–EU negotiations on a Brexit deal remain should be known by the time this edition of Monitor is ongoing, and partly because how parliament will react to published. If not, agreement could potentially still be the outcome of those talks is far from clear. reached in December or even January. Just as the last Monitor went to press, and after months If a deal is done, its implementation will be subject to of delay, the government finally published a white approval by the House of Commons and the passage paper in July, setting out its proposals for Brexit and of legislation bringing it into effect. A UK in a Changing the UK’s future relationship with the EU – the so-called Europe report published in September (and discussed ‘Chequers plan’. Even before publication, two key at a Unit seminar – see page 17) explained that this cabinet ministers – Brexit Secretary David Davis and process is unlikely to be straightforward; since then, there Foreign Secretary Boris Johnson – had resigned, arguing has been considerable controversy over the form that that its proposals would bind the UK too closely to the parliament’s ‘meaningful vote’ might take (see pages 3-4). EU yoke. Many Brexit supporters – both MPs and voters If no deal is done by late January, the government must set out its plans to parliament, which will In this edition (notwithstanding the legal niceties) in political reality need to determine the way ahead. Brexit 2–5 This leaves four basic scenarios: a deal may or may not Parliament 5–7 be done; and parliament may or may not accept this Elections, referendums and 7–10 outcome. If parliament accepts either outcome, Brexit will democratic engagement take place on 29 March 2019 (unless the UK government Parties and politicians 11 and EU leaders agree a delay). If parliament rejects either Courts and the judiciary 12 outcome, the possible future directions multiply. Devolution 12–15 International 15–16 Constuon Constitution Unit news 17–18 Unit Blog www.constuon-unit.com Bulletin Board 18–19 2 | Monitor 70 | Constitution Unit | ISSN 1465–4377 Ministers still insist that the alternative to acceptance of lessen these difficulties, at least in the short term. their deal would be a ‘no deal’ Brexit. Given the dangers Meanwhile, other challenges – including those posed to the government itself has set out, and the balance of democracy by the digital revolution (see pages 9–10) – MPs’ views, it is difficult to imagine that parliament demand urgent attention, but risk neglect. Politics and would let this happen. Labour would push for a general the constitution will change fundamentally in the coming election, in which it would presumably promise to months, but the character of these changes remains negotiate a better deal. But it is difficult to see where the impossible to know. parliamentary votes needed to achieve this would come from. The government – perhaps following a change in Prime Minister – could seek to return to the negotiating Brexit table. But EU leaders could be reluctant to reciprocate, unless the UK signalled a substantial change of stance. Another way out of the impasse would be a further EU–UK negotiations referendum. Support for such a move has grown substantially over the summer. Conservative MPs With ‘exit day’ now fewer than 150 days away, both sides such as Justine Greening, Dominic Grieve, and Sarah are openly talking about the prospect of the UK leaving Wollaston have backed the idea. Labour, following the EU without a withdrawal agreement in place, and strong grassroots pressure and tense negotiations at its without a political declaration mapping out the post-Brexit September conference, now officially remains open to UK–EU relationship. This ‘no deal’ scenario remains a such a vote. In October, the largest demonstration since possibility: in a recent UK survey, 44% of respondents 2003 saw (according to organisers) approaching 700,000 said it is how they expect the UK to leave the EU. people march through London to demand one. While a ramping up of pressure and rhetoric was Reflecting this rising interest, the Constitution Unit always to be expected as exit day approached, serious published a report in October on the mechanics of a preparations for a potentially acrimonious and disorderly further Brexit referendum, written by Jess Sargeant, split are underway. The Department for Exiting the Alan Renwick, and Meg Russell. Without taking a view European Union (DExEU) has published over 100 on whether a referendum would be desirable, the report technical advisory notices, whilst France and Germany are examined how one could come about and what form among those accelerating no deal contingency planning. it might take (see page 17). It emphasised that, while organising a referendum properly would require an ‘No deal’ is by no means inevitable. Both sides have extension to the Article 50 period, EU leaders would been careful to emphasise that an agreement remains almost certainly grant this. A referendum in spring would possible and sufficient goodwill exists to achieve it. be possible if MPs moved quickly. One crucial issue to Michel Barnier, the EU’s chief Brexit negotiator, believes resolve is what the question should be – a vote excluding that ‘80 to 85% of the Withdrawal Agreement has now the option to remain in the EU from the ballot paper been agreed’ while Theresa May suggests it is closer to seems inconceivable given its proponents, but this could 95%. While these numbers are intended to show that be pitted against any deal that is done, or against leaving a deal is within touching distance, they cannot hide the without a deal, or potentially against both. Alongside reality that the principal remaining obstacle is the most this, parliamentarians would need also to address some contentious and difficult issue of all: the Northern Irish of the shortcomings in existing referendum legislation ‘backstop’. that were revealed by the 2016 vote: for example, around More than any other question, the backstop epitomises the regulation of digital campaigning. Theresa May’s political difficulties. First, there is the UK politics has been shaken to the core by Brexit. fundamental contradiction between her promise to Deep social divisions have been laid bare and deepened. leave both the Single Market and the Customs Union The Union among the UK’s constituent nations has and her promise to ensure no hard border on the island been tested to the limits (see pages 4–5). The capacities of Ireland after Brexit, thereby safeguarding the Good of Whitehall and Westminster have been stretched to Friday Agreement. Second, her reliance on the DUP’s breaking point. None of the paths that could be taken Westminster MPs since the 2017 general election over the coming months will heal these divisions or highlights her profound political weakness. 3 Resolving the first challenge requires either that May Parliament’s ‘meaningful vote’ compromise on her promise to leave the Single Market on Brexit and Customs Union or that she permit Northern Ireland to potentially diverge from the rest of the UK and With the crunch moment in the Brexit negotiations maintain regulatory alignment with the EU. The second approaching, arguments have again broken out about challenge makes either choice politically impossible, the nature of parliament’s role in final decision-making. even if she were willing to make it. While many MPs In mid-October widespread concern was expressed in her own party – and notably those of the European about a letter from Brexit Secretary Dominic Raab Research Group – would never accept the first option, to the Commons Procedure Committee suggesting the DUP is implacably opposed to the second, and that the chamber’s vote on the withdrawal agreement has declared itself ready to do whatever is required to ‘must allow for an unequivocal decision’ and facilitate prevent it – including bringing down the government. ‘a straightforward approval’. This looked like an attempt to revive the ‘take it or leave it’ vote originally favoured by the government, which was rejected by amendments to the EU (Withdrawal) Bill, starting with defeat on an amendment by Conservative backbencher Dominic Grieve. A government memorandum to the committee acknowledged that the motion to approve any withdrawal agreement ‘will be amendable’, but floated the idea that, rather than following standard procedure for voting on government business, whereby amendments are considered before a vote on the main motion (as amended, if amendments pass), the motion might be voted on first, with amendments only considered if MPs reject it. The Procedure Committee invited further evidence (all submissions, including those of the government, can be found on its website), which Theresa May at the European Council meeting in Salzburg. (c) Number 10. has so far largely rejected the government’s position. Shadow Brexit Secretary Keir Starmer indicated that The backstop forms an essential component of the Labour would vote against the ‘Business of the House’ December 2017 Joint Report that mapped out the basis motion needed to implement such a non-standard for the withdrawal agreement.