Friday, 20 September 2019

A state of suspension

This week Brexit, like parliament, seems to have been in a state of suspension. That might seem like a welcome lull after the drama of the last couple of weeks. In fact, it is the tense, humid moment before the inevitable thunder and lightning start; a pregnant pause with an unknowable but possibly freakish, phosphorescent and two-headed offspring.

Known unknowns

So we don’t know, but await, the Supreme Court’s judgment on the legality of prorogation. Well-informed people seem to be evenly split in their predictions, and speculation about the outcome, expected next week, is probably pointless. Nor do we know what would happen if the government loses (e.g. whether parliament immediately resumes and if so what it does, whether the government tries to prorogue again) much of which will depend on the terms of any such judgment.

Equally, but much more shockingly, we simply don’t know what the government is doing or planning as regards Brexit itself. Again, well-informed opinion seems almost evenly split between thinking the government is seriously pursuing a deal with the EU (and, then, split as to whether that is likely to yield a deal) and that it is just going through the motions as a prelude to announcing that no-deal Brexit is the only possibility, despite the supposed best endeavours.

It is all but impossible to really be sure what is going on, not just because interpretations vary but because so much of what is reported is the result of ‘spin’ operations of different politicians and officials with different interests feeding often contradictory information to journalists, think tanks and other intermediaries.

Renegotiations?

If there is a serious attempt at negotiation, it appears to be very low-key, for all Johnson’s vapid talk of oomph and positivity. Such sloganising is entirely inadequate because what is at stake isn’t having a ‘can do’ attitude’ but the hard, technical detail which he constantly avoids. Indeed, reports of his meeting this week with Jean-Claude Juncker suggest that it was only then that “the penny dropped” with Johnson that the idea he has been floating recently of an Ireland-wide food and livestock area could not provide an alternative to the backstop.

It is still the case that no detailed written proposals have been formally tabled, still less discussed, with the EU although since the Juncker meeting it has been reported that there has been a sharing of some confidential documents setting out the government’s ‘ideas’. By definition, we don’t know their content, but the horrible suspicion must be that they are some version of the already-leaked ‘secret papers’ on the agrifood idea plus, presumably, the old chestnut of ‘alternative arrangements’.

These reports also suggest that no formal proposals will be made until it is clear that the EU will “engage constructively” with them. This seems a curiously ‘chicken and egg’ approach, which has the potential to drag on forever – when time is already beyond tight. It is small wonder that Michel Barnier is asking Johnson to “stop pretending to negotiate”.

Indeed much else that is being said makes little sense. For example, the British negotiating team apparently “took comfort” from Juncker’s comment about having “no emotional attachment to the backstop”. Later, Johnson took the same message from it, claiming it to be a shift in position. But all this means is what the EU has always said – that some different arrangement that offered the same guarantees for an open border would be possible, not that the ragbag of undeveloped ‘ideas’ would be a viable alternative.

Even now, we seem to be going round the same old circles that have characterised the UK’s approach to Brexit since the beginning – a mixture of incompetence, lack of realism and, as in Steve Barclay’s Madrid speech on Thursday, an unpleasant and counterproductive bellicosity (nicely taken apart by Peter Foster of the Daily Telegraph).

It is almost as if, as happened during May’s premiership, the UK is again expecting, or hoping, that the EU will turn British aspirations into a legal text. There is no sign that the EU will do this, but evidence – in the comments of Xavier Bettel this week – of mounting frustration and bemusement. It was a high-profile example of something well-known to behind the scenes observers: Brexit is comprehensively shredding the UK’s international reputation.

Back to May?

Given this total lack of new initiatives, perhaps it is still the case that Johnson will end up presenting a (Northern Ireland only) version of May’s deal as his own, and spring it on the ERG and DUP at the last minute. That would entail rapidly ramming it through parliament using every piece of processual chicanery possible against the Ultras’ opposition. As I’ve noted before on this blog, the Ultras always assume that parliamentary scrutiny is their enemy and yet have often been proved wrong about that and been grateful for having use of it (for example in the meaningful votes), courtesy of the remainers they revile as undemocratic.

It would be a rich irony if in the Brexit end-game they are reduced to crying foul as Johnson tries to do to them what they have encouraged him to do to the ‘saboteurs’. Yet, even if he does, it is highly doubtful whether the parliamentary numbers will enable him to succeed.

Or countdown to no deal?

If we are just seeing a countdown to announcing that no deal has been reached, then we don’t know what Johnson’s intention is with respect to the Benn Act, requiring an extension be sought. He still talks as if he will ignore it, and Jolyon Maugham, the highly respected QC and anti-Brexit campaigner, has identified a possible loophole that might allow him to circumvent it if parliament is unable to close it.  But it is equally possible that that will then trigger an election.

So we drift on, rudderless, with no way of knowing whether this is part of some strategic master plan cooked up in Downing Street or whether, indeed, the Emperor is stark naked. Very conceivably, it is both: there is a master plan, but it is utterly bereft of realistic substance. It is a monumental failure of political leadership, further exacerbating the woeful uncertainty besetting individuals and families – most viciously EU nationals in the UK and vice versa - as well as businesses and other institutions.

We literally have no idea of the terms in which we will relate to the outside world (not just the EU, and not just for trade) in just six weeks’ time, or even what kinds of food and medicines will be readily available. We’ve lived with this for so long that there is a danger of forgetting just how disgraceful it is.

The LibDem revoke policy

There seems little point in speculating further on the multiple scenarios that may now play out, but there have been some developments of potential importance. These include the new LibDem policy of - if they form the next government, and assuming that this occurs before Brexit - revoking the Article 50 notification.

The LibDems matter – more than their current parliamentary numbers might suggest – for at least three reasons. First, along with the SNP, they have played a key role in keeping alive the possibility of reversing Brexit and have done so ever since the Referendum. Second, more than any other remain party – given that the SNP only operate in Scotland – they have momentum and confidence. Third, whilst the idea of them winning the next election outright is fanciful, they may well have a major influence in the next parliament.

Problems of political principle

The decision to make revoke their policy of first choice is a problematic one, in terms of the principle, as many staunch opponents of Brexit, including Green MP Caroline Lucas, have said. Whilst many people I know, or know of, and respect – such as Professor Phil Syrpis - have long argued for such a policy, it has a clear problem of legitimacy: surely, only another referendum can annul a previous one?

The issue here isn’t one of legality – for it is clear that revocation without referendum is perfectly legal – nor is it one of democracy, for it is certainly arguable that if enacted by a government elected with that central to its manifesto revocation would be democratic.

But legitimacy is ultimately a matter of widespread public perception rather than legal and political theory. And although it is true that some leave voters would regard another referendum as lacking legitimacy, they would surely do so in greater numbers and with greater reason in the case of revocation, and would be joined in that by at least some remainers, as the link above to Caroline Lucas’s statements show. So, for different reasons and in different ways, revocation would not ‘put an end to things’ any more than would no deal.

What is worse is that espousing such a policy creates a precedent which could have two consequences. First, if the Tories win the election on a no deal platform it would bolster their claim that such a result represented an electoral mandate for that policy. Second, and similarly, just suppose that the LibDems won and enacted revoke. Then, what is to stop a subsequent Tory government deciding, without any referendum, to leave the EU? For if parliament alone could decide on revocation, why not on Brexit Mark 2?

Whether or not this possibility ever came to pass, it also points to the question of exactly what kind of member of the EU would the UK be after revocation? The only way that would be good for both would be a wholehearted re-commitment (or, one might say, for the first time a wholehearted commitment) by the UK to the EU. How could that possibly be achieved on the back of a revocation which even if undertaken by a majority government would, very likely, only have the backing of a minority of voters given the first past the post system?

It is no good saying that since the 2016 Referendum was deeply flawed in its set-up, conduct, and interpretation there is no need to be finicky about how to annul it. For that argument only has cut-through with those who already hold that view. We have seen over the last three years that it has no traction at all with those who – misguided as they may be – see the Referendum result as inviolate, even if they recognize its flaws, which many do not and never will. Legal reality and political reality aren't the same.

To put all this a different way, if, as argued in a recent post, Brexit has weaponised parliamentary and direct democracy against each other, then revocation without referendum can only prolong that conflict. So, although I know that many readers of this blog will passionately disagree, I see revocation as being, in principle, a misguided policy of first choice. It would only be conscionable if it were the only and last remaining way of preventing no-deal Brexit, which would be even more damaging.

Revocation as political tactic and strategy

Of course something doesn’t have to be good as a political principle to be good as a political tactic. But is it that, either? It certainly offers a clear and distinct political positioning for the LibDems, although whether it has quite the degree of honesty that Jo Swinson claims for it is less clear given that almost no-one believes that they will form a majority government. But it is quite hard to see what kind of voters, not currently committed to vote LibDem, will now change their minds. Revoke is a policy for their core vote, and any swing voters attracted by it are likely to be offset by those uneasy about or even hostile to it.

Moreover, fairly or not, it makes an easy target for journalists and political rivals who can paint it as ‘undemocratic’. This means that every interview and debate in the election campaign will get hijacked by that accusation. Of course, Swinson et al can defend the policy, but doing so is much trickier and more convoluted than would be the case for a referendum policy.

Against all that, there is a case that, not as a matter of party political tactics but of remainer political strategy, revocation is a good policy. For it does have the effect of re-defining the spectrum of possible outcomes so that it now runs from revocation to no deal. This in turn means that another referendum ceases to be at one end of the spectrum but instead is a species of ‘compromise’ – the compromise, in fact, that the LibDems will probably have to make and if so, to the dismay of their revoke-inclined supporters (£).

Even so, I can’t help thinking that the revoke policy is a misstep, potentially a serious one, perhaps the first they have made since 2016.

Labour: a pathway to remain?

By contrast, despite its very strange look, Corbyn’s latest stance may well prove quite adroit, in part precisely by positioning the LibDems as ‘extreme’ because of their revocation policy. Taken together with the extremism of Tory Brexit policy, Corbyn has been gifted the surprising position of being a ‘centrist’ on Brexit.

Thus he is now suggesting that, if elected, his government would seek a re-negotiated softish Brexit deal followed by a referendum between that and remain, in which he would stay neutral. The consequence, as Ian Dunt has argued this week, is that however arrived at and for whatever reason Corbyn has opened up a narrow pathway which leads to remain.

So it is possible now, just about, to see events aligning so that a referendum occurs that remain might (conceivably) win. There would then need to be a huge amount of domestic reparation work, both cultural and economic, as well as significant diplomatic bridge-building with the EU and beyond. It is hard to be optimistic that this would happen – the culture war is probably now too deeply-rooted – and much would depend on the size of any remain victory in such a referendum, but it’s not absolutely impossible, and appreciably less difficult than would be the case under either revoke or no deal scenarios.

However, all this is at this stage rather academic since we don’t even know if there will be an election before Brexit, still less what its outcome would be. The opinion polls are all over the place, and not a useful guide, but my instinct is that if there is an election (entailing an extension being sought from and granted by the EU) Johnson will struggle. Having painted himself so deeply into the corner of Brexit on 31 October, a campaign after that date will leave him deeply exposed to the Brexit Party.

Hence, presumably, he will do all he can to avoid it. That will be determined by the thunder and lightning of the next few weeks. Until that storm has cleared we remain, as we have been for many months, in a situation where all outcomes are as likely, or as unlikely, as each other.