Friday, 7 December 2018

Government in contempt of parliament, parliament in deadlock

The five days of debate on the proposed Withdrawal Agreement of the United Kingdom from the European Union began on Tuesday with three consecutive defeats for the government. In the first of these, the government was found to be in contempt of parliament. In the past, parliament has brought down governments, but, as far as I am aware, a finding of contempt is unprecedented. The Leader of the House, representing the government, looked visibly shaken as she listened to the result. She promised the House that the Attorney General's advice, the point of contention, would be made available.

This defeat was entirely of the government's own making, as was entirely obvious when the advice was published on Wednesday. There was nothing in the advice that made it against the public interest to publish: yet that had been precisely the government's vehemently asserted defence. What was in the advice, however, as MPs had suspected, was contrary to the government's political interests. The advice made it clear that the United Kingdom could be trapped in the Northern Ireland Protocol, the so called Backstop, indefinitely, and could only escape with the agreement of the European Union. This was a point government ministers had sought to hide, or at least to minimise, in order to bolster support on their own benches.

The debate over the first three days have not improved from this inauspicious start. It remains clear that there is no majority in the House for the government's proposed deal. The opposition parties all continue to oppose it. The DUP, which the government relies upon for its majority, is even more strongly opposed. And many on the government's benches remain opposed. Given this opposition, John MacDonald, the Shadow Chancellor, yesterday made a bid for parliament to take control of the process of exiting the European Union. He suggested an alternative to both the government's proposed deal and the default, which is to leave the European Union without a deal. His proposal was for a customs union and the single market. This proposal has the merit of being capable of commanding a majority in the House. However, it faces serious problems. First, the government's proposed deal would have to be defeated on Tuesday (the last day of the debate). Second, a mere motion of the House cannot control the executive, and it is the executive that would have to return to the European Commission and request a renegotiation. Thus, Labour's proposal requires that Labour take control of the executive and the only way for that to happen is either for the government to fall and for Labour to form a minority government or by a general election which Labour wins. The general election route, whilst eating into the ever decreasing time-table, is highly unlikely, as it would require two-thirds of the House to vote for it, and many of those MPs would be effectively voting themselves out. The government falling route also seems unlikely. The hallmark of Theresa May's premiership has been her obstinate (one might even say delusional) refusal to accept the seriousness of the difficulties she has faced. I cannot therefore see her, on the defeat of her proposed deal, simply acknowledging defeat and resigning. Another alternative scenario would be for her own MPs to bring her down by triggering a leadership contest. But here, the MPs who are most discontented are precisely the ones who would not tolerate Labour's solution, seeing it (correctly) as remaining in the European Union.

Given all these difficulties, many (Remain) MPs have used the debate as an opportunity to argue for the so called People's Vote option. They claim parliament is deadlocked, pointing out (rightly) that there is no majority for the proposed deal; there is no majority (again rightly) for the no deal option: therefore, they argue, the people must decide. But this too has problems, specifically, timing, as it would take six months to organise a referendum and we would have left the European Union already. Thus, Remain, which they obviously demand be on the ballot paper could not be an option. The way round this problem would be to extend Article 50 of the Lisbon Treaty, but this could only be requested by the government and the government has no intention of making such a request.

What these problems throw into stark relief is the fact that the executive governs and parliament can only make laws and hold the executive to account. Parliament cannot micro-manage the executive. In order to direct the government's actions, parliament only has the tool of making laws. And to carry out any strategy that could command a parliamentary majority would require a raft of laws (and repeal of laws), and the Opposition simply does not have the parliamentary time at its disposal to enact any such programme.

Watching these debates in parliament has been a surreal experience, as so many MPs seem to be blissfully unaware of the constitutional position. Thus, the Shadow Chancellor puts forward a strategy that he does not have the power to carry out. Die-hard Remainers keep demanding a People's Vote, which they are not in a position to organise and even if they did, it would be too late for their preferred outcome to even be a possibility. Worse still, many MPs have used the debate, not only to ignore realities, but to propagate myths about the motivations of the people who voted to leave (as though anyone knows why 17.4 million people voted the way they did), in order to justify their own refusal to accept that the decision was made in June 2016. Thus, much of the debate has been completely sterile. This does of course stem from the fact that there is no majority in parliament for parliament to do anything it can do and only potential majorities for parliament to do things it cannot do. There are only two ways of resolving this deadlock. Either parliament does what it can (accept the proposed deal or the default) or it changes the government for one which will pursue a course that can command a majority.

MPs now have the weekend before the debate is resumed on Monday to find a way out of this dilemma. I will be surprised if they have the creativity to do so. Lacking that creativity, the country will leave the European Union in March without having agreed a deal, something the vast majority of MPs view with horror.

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