The Parliamentary vote on Brexit risks a constitutional crisis and instability

“Damned if you do, and damned if you don’t”. Whichever way the crisis over Brexit this winter may go, there may be no real winners and a whole lot of anger. Not surprisingly, many people in Britain are very fearful of what may occur. The crisis in the UK over Brexit is moving inexorably towards its climax, a potential constitutional crisis.

On 11th December, after a 5-day debate, the House of Commons will vote on whether to agree Prime Minister May’s Withdrawal Agreement and Political Declaration which she has just painstakingly negotiated with the European Union (EU). All the signs are that it will be rejected by a sizeable margin, thus plunging Britain into an even bigger crisis in which the outcome is at present very unclear. What, people ask, might happen?

The Parliamentary vote on the Withdrawal Agreement

As a result of earlier legislation insisted upon by moderate rebels, Parliament must have a “meaningful vote” on Mrs May’s negotiated agreement with the EU, a draft Treaty awaiting ratification by Westminster and the European Parliament.

The Withdrawal Agreement covers the rights of citizens in the EU who are in the UK and British citizens in the rest of the EU after Brexit, the money to be paid to the EU to cover outstanding payments due by Britain to the EU, and a “backstop” agreement to ensure that, during a nearly 2-year transition after Brexit on 29 March 2019 and later if need be, Britain will remain in an effective customs union with the EU until a trade agreement has been negotiated, to ensure there is no customs border between Northern Ireland and the Republic of Ireland. There is also a Political Declaration of intent with regard to the forthcoming trade negotiations, which has no legal force. The actual trade relationship between Britain and the EU is still to be negotiated.

Mrs May’s opponents in the Tory party right wing, led by Jacob Rees-Mogg and Boris Johnson, claim that “the deal” gives away too much, that the “backstop” to avoid a “hard border” in Ireland and preserve the Good Friday Agreement (1998) woud keep the UK in the customs union for an indeterminate time, that the UK cannot leave it without the EU’s consent, that too much is being paid to “Brussels” without anything in return in terms of trade, and that Britain instead should be opting for a Canada-style free trade treaty. Critics of the right say that this would in effect precipitate a “no-deal” Brexit, a default to a dubious basis of trade with the EU on WTO terms, and result in a massive recession (see here and links for details of the economic implications of Brexit).

The Labour party hope to vote down the deal in order to precipiate a general election, or, failing that, a second referendum. Labour is also divided over Brext but offical policy is to have a “jobs first” Brexit, to protect living standards, in effect staying in the customs union and single market. Many consider their position is actually very ambiguous and that it would have to be negotiated which the EU are now not keen on so doing. They are joined by various smaller parties in opposition to the deal and by the Northern Irish DUP, erstwhile supporters of the minority Tory government, who believe the deal threatens the union with Britain.

What might happen if Mrs May’s deal is rejected?

Labour’s Keir Starmer, the Shadow Brexit Secretary, has said that Labour will then table a motion of no confidence. When a government is unable to get through key pieces of legislation, a legitimate constitutional device is to call a motion of no confidence, which if the government loses obliges it to resign. Prior to 2011 this would have resulted in an early general election. Due to the Fixed-term Parliaments Act (2011), there is a process to be undergone to attempt to form an alternative government before an election be held, unless Parliament votes by a two-thirds majority to call an election (as happened in 2017).

It is assumed that Labour will attempt to engineer an election but, failing that, call for a second referendum on Brexit, for which a head of steam has built up led by the People’s Vote campaign.

A general election?

A general election would traditionally have been the safety valve for a major crisis where the government no longer held the “confidence of the House”. The Prime Minister would go to the Queen, offer her or his resignation and recommend a dissolution of Parliament. In some crises however, the monarch has instead consulted with other leaders and, where there is a minority government, invited the leader of the next biggest party to form a government and attempt to win the confidence of the House.

A general election may or may not resolve the crisis. It could result in a party being elected that could win legislative votes in Parliament and either vote through the deal or reject it and presumably try to negotiate an alternative, or decide to rescind Article 50, the device by which Brexit was initiated. There are of course big risks in postponing or even cancelling Brexit.

It is however very debateable whether this can be achieved since elections have recently tended to result in governments with small majorities or “hung” Parliaments. This is partly because of the decline of the two-party system and also the fact of there being only a very few swing constituencies at present. Thus an election may return nearly the same group of MPs and the same problem, since both major parties are very divided on Brexit.

A second referendum?

A second vote is a much mooted alternative. There is a strong tradition in Europe for this where first referendums have not produced a desired result, which isn’t exactly a recommendation in the current climate of distrust of the EU in the UK. However, in 1975 a referendum was called to approve the UK’s recent decsion to join the then-EEC, after both major parties were divided on the issue. It was an attempt to end the controversy.

This could be said to be the case today too. Parliament is so divided on the issue of Brexit and the form it should take that it makes sense to consult “the people” in this way. Moreover, proponents argue, the first referendum was on a point of principle, whether to leave the EU or not, and not on a detailed policy proposal, whereas there is now a proposal on the table and much more is now known than in 2016 what is entailed with Brexit, and especially its economic costs.

Opponents of a second vote say that this would be a “betrayal” of the 2016 vote to leave the EU and that it is a device to thwart Brexit. “Leave”, they say, “means Leave”. They also say that it is “undemocratic”. Supporters say that elections are often held when there is a major disagreement over policy and there is no prescription in the British Constitution as to what is “democratic” in what is essentially a representative system of government with an unwritten constitution.

A further complication is that of the question to be asked. Should the choice be between May’s deal, the current deal, ie. Remain, or a “no-deal” brexit with its massive economic risks? Also how would the vote be conducted, on a series of votes or a “second preference” vote as is used under STV in certain Proportional Representation elections (see Electoral Systems in UK for more).

Another objection many raise is that holding a second referendum would risk considerable instability and unrest, and perhaps a further rise in xenophobia and racism. Others say that to not have such a vote in this climate is to give in to “bullies” and coercive threats that are in themselves “undemocratic”.

It is almost certain that the UK would have to seek EU approval for a pause in the Article 50 process, which EU leaders have said they would agree to but full approval is not yet guaranteed.

Re-negotiation and a further Parliamentary vote

As the crisis unfolds, it is not beyond the realms of reason for Mrs May to cling to office, attempt to extract further, probably cosmetic, concessions from a dominant but reluctant EU and take the question back to Parliament and, as with a second referendum, assert the right to have second thoughts. Some think this a not-implausible line to be taken, especially those inside and outside Parliament who might be very worried about the instability that this crisis might create. “Better the devil you know”, can be a sound conservative approach.

The pressure to compromise in the face of a “no-deal” Brexit could prove overwhelming. In the past, cross-party coalitions have been formed to push through an agreed policy to resolve the crsis. An example of this was the crisis of 1931, when Ramsay MacDonald resigned as Prime Minister of the minority Labour government because it failed to agree on measures to carry out spending cuts and thus balance the budget in the face of the Great Depression. He then returned as head of a National Government, largely consisting of Tories but also some Labour and Liberal MPs, to carry out the cuts. It won a massive majority in the election of that year. It was however the decision to come off the Gold Standard and devalue Sterling that actually saved the day.

A cross-party coalition of centrist MPs from both the main parties, with minor party support, could break with the arguably over-rigid two-party system and either implement the deal or postpone Article 50 and hold a second referendum. There has already been a number of cross-party collaborative votes on Brexit matters.

A novel situation

It might be that a major constitutional crisis could erupt, a struggle between the executive and Parliament as well as a political struggle between diametrically opposed factions who refuse to compromise. People have long commented on the power that the executive exercises over Parliament, the “elective dictatorship”. As Parliament now asserts itself against the executive, new patterns are emerging that could in time herald changes to how the UK system of government operates.

All the while, the clock ticks closer to Brexit day on 29 March 2019.

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