Unless you’ve been in a coma for the last two and a half years, you’ll be well aware that the United Kingdom has been negotiating its exit from the European Union. Despite the people voting to leave in record numbers in June 2016, however, the chances of Britain actually leaving the bloc are increasingly small. Many never believed that the establishment would permit this process to reach its conclusion, and soon enough there is every likelihood that their position shall be vindicated – despite the Prime Minister’s continued assurances that ‘Brexit means Brexit’.
It appears as if events have come to a head in recent weeks. Since the EU 27 agreed Britain’s exit terms with the Prime Minister on 25th November, there has been a flurry of activity on the British side of the channel, including days of heated parliamentary debate, rifts within the governing coalition and even a leadership challenge within the Conservative Party. Talk of suspending Article 50 and holding a second referendum sharply increased following the aborted Commons vote last Tuesday, with MPs increasingly looking at contingency plans should May’s deal not make it through a parliamentary vote – as it surely will not. Yet, we should not view this as a series of reactions to constantly evolving events, but rather as the culmination of an underhand process that was set in motion more than two years ago.
Most Brexiteers inside the United Kingdom will have heard of Gina Miller, the multi-millionaire investment manager and (allegedly) close associate of liberal Jewish philanthropist George Soros who took the government to court and won. Miller legally contested the government’s right to sign an exit treaty with the European Union via executive power and, remarkably, the court agreed in her favour (R v Secretary of State for Exiting the European Union). The case was brought on the grounds that only parliament could remove rights granted by parliament and that the government cannot revoke rights using prerogative power, and it was on these grounds that the court ruled in favour of Ms Miller on 3rd November 2016.
And so it was that the Prime Minister was forced to hold a vote on the triggering of Article 50 (the Lisbon Treaty’s provision for succession of a member state), which MPs duly voted for merely to save face. However, a further implication of this ruling was that any deal brought back by the Prime Minister, because it made changes to the rights and privileges of British citizens, must be approved by parliament before it can pass into law. This has landed us in the position we are currently in, whereby an impasse has been manufactured on this technicality. Various factions within parliament are refusing to approve this deal, both on the leave and remain sides of the debate and, now, there is no consensus within the Houses of Parliament as to what should occur next.
This situation has been made ever more precarious for the Brexit process by an amendment (04/12/18), tabled by former Attorney General Dominic Grieve and supported by a majority of 321 to 299, which empowers parliament to ‘take control of the Brexit process’ should Mrs May’s deal be rejected by the House. This means that the next stage of the process, following this deal’s rejection will be decided by parliamentarians of both sides. Prior to this amendment, the default position of the government should this deal fail was ‘no deal’, as there clearly wouldn’t be time to negotiate another arrangement prior to the legally defined exit date of 29th March 2019 and the government’s reluctance to entertain stopping or postponing the process.
Now, however, the reality is that a ‘no deal’ Brexit is almost impossible. There is a super-majority in both Houses of Parliament against such a scenario and, if they are to take control of the process, they will do everything in their power to avert it. This problem is compounded by an emergency ruling by the European Court of Justice (ECJ) on Monday 10th December, which determined that Article 50 can be revoked by the government at any time before the UK’s legal exit date – 29th March 2019. This means that the problem parliament would have had as a result of the limited timespan between May’s deal being rejected and the exit date, they have no longer. An MP can simply table a Private Member’s Bill or some other parliamentary motion to revoke Article 50 and, as there is no majority for ‘no deal’, parliament will duly vote to this effect and the government will be forced to do this.
One slight snag in the Remainers’ grand stitch up could have been the European Union (Withdrawal) Act 2018, which enshrined in law the 29th March 2019 as the date the United Kingdom would formally exit the European Union. Regardless of the status of Article 50, this act still legally enforces our departure. However, those relying on this to rectify the situation in favour of Brexit have overlooked the fact that the 4th December amendment gives parliament the power to amend of repeal that Act, thereby removing this date from UK law by a simple majority vote.
When it comes down to it and May’s deal is rejected by parliament, parliamentarians will be faced with the following choice: a ‘no deal’ Brexit or the suspension of Article 50 and annulment of the EU Withdrawal Act. There is clearly no majority in the House of Commons for ‘no deal’, therefore the only possible outcome will be the latter. It will then be down to parliament to negotiate an improved deal with the European Union that they can build a consensus for. The issue with that is that the European Union have made it abundantly clear that this deal is the only deal on offer. There is almost no chance of even minor concessions, let alone a wide-ranging renegotiation that makes this deal palatable to MPs.
Should this follow the pattern laid out above, which it most surely will, an impasse remains in parliament that is unresolvable through mere parliamentary procedure. In such a situation, the normal course of action is deference to the people – in the form of a General Election. However, due to the Fixed-term Parliaments Act (2011), a two-thirds supermajority in favour of an election is required for this to take place, and the extremely precarious positions of a number of Conservative MPs in terms of constituency majorities, coupled with the DUP’s (and everybody else’s) fear of a Corbyn-led Labour government, makes such an eventuality almost as unlikely as a ‘no deal’ Brexit.
Therefore, there remains only one option with which the impasse can be resolved: deference to the people by way of referendum. Despite MPs’ official reluctance to hold such a ballot, there appears to be no other way through which to resolve this impasse – when the impossible has been discounted, the answer which remains regardless of how improbable must be the correct one. This will provide MPs with their opportunity to do what they’ve always dreamed of doing, and that is to overturn Brexit. They’ve manufactured a faux impasse for precisely this reason, because a certain vocal faction in parliament has been agitating for a second referendum and has played an absolute blinder in bringing about the conditions for this to become a reality.
The question on the ballot paper will almost certainly have ‘remain’ as an option; this parliament would never agree to a referendum in which ‘no deal’ was an option. Thus, the question will likely be as follows: ‘Should we leave the European Union under the terms of Theresa May’s deal, or Remain a member of the European Union?’
Some have hypothesised that the Leave vote would be strengthened in any re-run of the 2016 referendum, yet this will not be the case for a few reasons. Firstly, Theresa May’s deal is so unpopular amongst leave voters that their motivation to even attend a polling station would be diminished. Secondly, polls show that the majority for Brexit in the country has been eradicated since 2016; Remain has held a consistent lead in Opinion Polls for the last 9 months, and there simply is not the motivation amongst Leave campaigners to mobilise an effective campaign to overturn these numbers. Thirdly, the Remain lobby is acutely aware that it lost the 2016 ballot through a failure to mobilise their voters on polling day due to complacency. They will not make the same mistake again. Of course, we also have the issue that the Leave campaign has been delegitimised heavily since 2016, with false accusations of ‘Russian money’ and a criminal investigation on fabricated over-spending charges. All of these factors make another Leave vote extremely unlikely and a Remain vote almost certain.
So there you have it. Perhaps it makes grim reading, but this is the reality we are faced with in British politics at the present time. Brexit is almost certainly not going to happen, the battle will be lost, and the last two years will have been for nothing. Yet, there remains some consolation. The Remain campaign lost the battle in 2016 but have been very effective in winning the peace since. Leave voters, the politically disenfranchised, must prepare to win the peace or continue the war – both amount to the same – after any second referendum in order to eventually triumph against the political establishment.