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Six Impossible Things Before Brexit

September 23rd, 2018

With six months to go, the ultimate denouement of Brexit looks as murky as ever.  That hasn’t stopped plenty of people trying to peer through the vapours.  If you are going to speculate, go right ahead, but it’s probably best not base your speculations on things that are downright wrong.  So let’s take a stroll past some of the more common misconceptions.

1) If Britain proposes something different (whether a recantation or a hardening of stance), the EU won’t necessarily accept it

Perhaps Salzburg will have despatched this particular misconception once and for all.  I doubt it though.  British political junkies of all stripes have for years put forward preferred plans on the basis that the moment they are espoused, they will be achieved.  Leavers seem to have mislaid the easiest deal in human history, yet still keep coming up with new ideas that they assume would glide past the EU side.  The optimism is commendable, if of murky origins. 

The latest variant is that Britain would go for no deal Brexit, and then magically negotiate lots of mini-deals with the EU to keep the show on the road in most practical aspects.  It’s far from clear whether there is time for those mini-deals or whether there is real agreement between the two sides on what the mini-deals should contain.

Remain supporters have been at least as guilty of this misconception as Leave supporters, assuming that they would automatically get a fairer hearing.  The EU has indicated that if Britain were to repent, it would take it back.  I’m far from convinced in practice that it would.  Britain looks set to be a nation divided roughly equally between Leavers and Remainers for some time to come. 

Why would the EU wish to keep on a country that is going through a collective and extended nervous breakdown where it is the subject of controversy?  Looking at the matter dispassionately from the EU perspective, you’d want to have some form of holding pen while Britain sorted itself out.

You probably didn’t notice in all the excitement, but a Scottish case has been referred to the CJEU to determine whether the Article 50 notice can be unilaterally withdrawn (my view is that it cannot).  The decision is going to be intensely political.  It’s hard to imagine the CJEU taking power from the other 27 countries and giving it to Britain in present circumstances.

This, incidentally, is a big problem with any hypothetical referendum.  Are the public going to be given an option that the politicians can’t deliver? (Again?)

2) Theresa May does not have to leave just because the men in grey suits ask her to

This is one of many misconceptions relating to the Conservative leadership process.  Absent actuarial considerations, Theresa May will step down as Conservative leader only if she resigns or if she is replaced by the due party process.  With the debatable exception of Iain Duncan Smith, the men in grey suits haven’t claimed a Conservative leadership scalp in generations. 

Theresa May might be induced to resign if she were persuaded that she had lost the dressing room sufficiently to make a defeat in a vote of confidence inevitable, but she has no track record of being easy to persuade.  If she resigns, it will be because she feels she has nothing more to offer the country.

What of the process?  No doubt we will read many more times of a stalking horse.  There is no such concept in the current version of the Conservative leadership process.  If 15% of the Parliamentary party lodge a letter with the chair of the 1922 committee calling for a vote of no confidence in the leader (that number being currently 48 MPs), a vote is held the next day.  A simple majority in that vote determines the matter.  So until a majority of Conservative MPs conclude that it’s time for a change, there won’t be a change in Conservative leader.

3) The government won’t fall just because its proposals on Brexit are defeated

One misconception, usually emanating from the left, is that if the government is defeated on its Brexit proposals the government will fall.  Following the Fixed Term Parliaments Act 2011, a government falls between general elections only if there is a vote of no confidence (or if the Prime Minister voluntarily resigns).  A vote on the Brexit proposals by itself doesn’t count.  The government would have some hard thinking to do having lost its main policy plank but it wouldn’t automatically fall.

The converse is also true.  The government could get its Brexit proposals through the House of Commons then be defeated in a vote of confidence.  Depending on what the Brexit proposals are, that’s a distinct possibility.  Keep an eye on that.

4) A general election won’t magically just happen because there is chaos

This is a variant of the same misconception.  There’s a process for replacing governments.  Mere chaos doesn’t qualify.  So even if the government has no policy at all on Brexit capable of being defeated in Parliament, the government won’t automatically fall.  There needs to be a vote of confidence to do this.

The consequence of this is that government could effectively cease to function, but the nominal government could remain in office, if not in power, for a considerable period of time indeed.

5) If the government is defeated in a vote of no confidence, the Conservatives won’t be in control of events

If, however, the government loses a vote of no confidence in accordance with the prescribed process under the Fixed Term Parliaments Act 2011, politics goes into fast forward.  Just because she’s lost a vote of confidence in Parliament doesn’t mean that Theresa May ceases to be leader of the Conservative party (see 2 above).  But it does mean that she will cease to be Prime Minister and a general election will be called unless a new government is approved by a vote of confidence within 14 days.

Pandora’s box would then be opened.  Would Theresa May be able to keep her leadership of the Conservative party?  This could be decided within 24 hours, see 2 above.  If not, would the Conservatives be able to find a replacement for her in time?  This might very well not be capable of being decided within 14 days, given the many MPs who look in the mirror and see the noble prospect of a First Lord of the Treasury and the time it would take to puncture all of their pretensions. 

If not, could the Conservatives nominate a caretaker who could serve as acting Prime Minister while they chose their new leader and get a vote of confidence passed?  Bear in mind that if a vote of no confidence had been lost, the government must have lost part of its coalition.  It would need to find a way of putting that back together.

Meanwhile Jeremy Corbyn would be insisting on the opportunity to form a government, just as he did in June last year.  He might well seek to put it to the vote.  If the alternative is a general election at a time when the Conservatives are in chaos, might they simply abstain in the short term until they had sorted themselves out?  They might.

In short, if the government loses a vote of no confidence, events become very unpredictable.

6) You won’t hear the end of Brexit on 29 March 2019

You’re probably sick of hearing about Brexit.  You probably want someone to make it go away.  But all that’s being discussed now are the transitional arrangements to apply while the main trade deal is to be negotiated.  The main event hasn’t started yet and won’t start until after 29 March 2019 (assuming some kind of deal gets hatched).  We have years more of these brouhahas and battles to look forward to.  Aren’t we lucky?

Alastair Meeks