The Brexit battles never went away, and they’ve got a long way to go

A recurrent observation – made sometimes with surprise and sometimes with a kind of perverse nostalgia - about this week’s political and parliamentary events is that it is ‘as if the Brexit battles have returned’. And it is true that, like an ageing rock band, re-formed to reprise its well-worn hits despite the much-publicized hostilities of its members, there were some all too familiar sights and sounds. Thus, as the Rwanda Bill ‘crisis vote’ approached, there were fevered speculations, briefings and counter-briefings, and crisis talks with the almost endless number of factions that make up what can still just about be called the Conservative Party.

As with such a band, it came as a slight surprise to learn that some of its members had not long ago died of self-abuse, as when the raddled features of Mark Francois emerged to announce the findings of the self-important dolts of the ERG ‘Star Chamber’, chaired by the apparently indestructible Bill Cash. The show even began in the time-honoured way with a rendition of the classic ‘cave-in of the Tory moderates’, to set the toes tapping. Francois did, however, introduce one new number, ’the Five Families’ which, it seems, refers to a grouping of some the right-wing factions which, indeed, have much in common.

The Brexit battles never went away

But the observation is wrong. It is not ‘as if the Brexit battles have returned’. They are the same battles, and they never went away, and they are explicitly seen as such by people like ‘New Conservative’ Miriam Cates. There are multiple, interwoven strands to this. One is that, as I suggested in my book on Brexit, a possible post-Brexit scenario would be a push for a Brexit 2.0 of derogation from the European Convention on Human Rights (ECHR) and, indeed, for months now, there have been growing calls from the Tory right for just that.

That scenario seemed possible not just because of the insatiability of Brexiters but because, as discussed in last week’s post, even before the referendum they conflated issues of EU membership with those of the ECHR. For that matter, it shouldn’t be forgotten that during that period, when Theresa May was still a remainer, she argued for withdrawal from the ECHR, whatever the outcome of the referendum, and that later, as Prime Minister, she vowed to fight the 2020 election (sic) on a platform of ECHR derogation (£).

It’s true that derogation isn’t what is at issue with the Rwanda Bill, which instead is an attempt to legislate to ‘disapply’ in domestic law some provisions within the ECHR, and certain other international agreements, in relation to the Rwanda policy (Dr Alice Donald and Dr Joelle Grogan of UK in a Changing Europe provide a detailed explanation of its provisions). However, some of the right-wing critics of the Bill would certainly prefer derogation, and all of them want it to go further in disapplying international law, especially in relation to whether individual appeals against trans-shipment to Rwanda would be allowable. In this sense, they are indeed pushing for a Brexit 2.0 scenario.

Closely inter-twined with that is the issue of whether the current Bill itself threatens to break international law. The government claims that it is framed in a way which stays just short of that, and this is the basis on which the ‘moderates’ of the One Nation group backed it. However, the UK Parliament’s Joint Committee on Human Rights issued a statement this week arguing that, even as drafted, it already breaches international law, a view endorsed by Professor Mark Elliot of Cambridge University, a leading authority in this area. In flirting with violating international law, or even actually doing so, the Rwanda Bill again represents a continuation, rather than a re-appearance, of something that began with Brexit. For it was not until the Internal Market Bill (IMB) of September 2020, which threatened to break some provisions in the Northern Ireland Protocol (NIP), that any British Minister had proposed legislation which would self-avowedly break international law.

The two aspects of Brexit nihilism

That threat arose again, with the Northern Ireland Protocol Bill in 2022, and although, in both cases, it did not actually happen, it shows how Brexit, specifically, has proved the catalyst for an almost nihilistic frenzy on the political right. One aspect of that is a kind of Jacobinism in which no measure is too extreme if it delivers Brexit, whether the price be the economic one of ‘no deal Brexit’ or the reputational one of reneging on international agreements. From quite early in the Brexit process, and especially once Boris Johnson came to power, international pariahdom seemed to matter not at all to the Brexiters. It is now abundantly clear that he signed the NIP without intending to honour it, and that many Brexiters who voted for it in parliament did so in the expectation that it would not be honoured.

A second aspect of this nihilism, related but slightly different, is a doctrinaire and wholly absurd idea of parliamentary sovereignty, within which international law is not just something that can be ignored but something which is actually meaningless. On this argument, which has been foregrounded again in relation to the Rwanda Bill (£), because parliament is sovereign it cannot be bound or constrained by anything else. At the time of the IMB proposals, this ludicrous argument was actually endorsed by the then Attorney General Suella Braverman.

That it is ludicrous was explained at that time, again by Mark Elliott, and, now, he has written of the Rwanda Bill that:

“it proceeds on the basis of the sleight of hand that the UK Parliament, because it is sovereign, can somehow free the Government from its international legal obligations. But this is to conflate the sovereignty of the UK Parliament in domestic law with the UK’s sovereignty on the international plane as a State. It is precisely in exercise of its State sovereignty that the UK can enter, and has entered, into binding treaty obligations.”

At its extreme, this idea of parliamentary sovereignty leaves no constitutional place for domestic courts, let alone international ones (actually, at its most extreme, as noted in my last post and amplified by Ian Dunt’s Substack, it proposes that parliament is sovereign over reality itself).

It is important to understand that these are not arcane points of legal or political theory. They have a crucial practical importance. For one thing, the UK is hardly in a position to call on other states, be it China, Russia or Israel, to act within international law and to respect human rights if its position is that sovereignty allows every country to do whatever it wants. For another, the UK is hardly an attractive partner for other countries to strike deals with, whether about trade or, even, asylum processing, if it reserves the right to violate those deals. And, for a third, which should matter to everyone, this doctrine makes it possible that parliament might act to remove any and every right from any or all of us, with no recourse to any court. It is precisely to constrain that possibility that we need the principle that there are some laws and rights that transcend the power of nation states.

It may seem as if these two aspects of Brexitist nihilism – the ‘Jacobin’ ruthlessness that the end justifies the means, and the ‘sovereigntist’ idea that parliament is unconstrained – are the same. But the reason I said they are ‘slightly different’ is because at times they contradict each other, even though they are often espoused by the same people.

Specifically, throughout the Brexit process, the idea of the ‘will of the people’ was often claimed by Brexiters to mean that sovereignty lay, indeed, with ‘the people’, and the constant accusation was that parliament was improperly ‘thwarting’ this will. But, if parliament is sovereign, how could there be anything improper in this (even assuming that was what parliament was doing)?  Moreover, the most extreme example of the Jacobin aspect was when Boris Johnson and his minions unlawfully prorogued parliament showing, in fact, utter contempt for parliamentary sovereignty. For, remember, their specific objection was to the way that parliament itself was passing legislation like the Benn Act (to prevent no-deal Brexit) in defiance of the Executive.

More generally, Brexit has been used as a pretext to sideline parliament, for example through the burgeoning use of ‘Henry VIII powers’ and, of course, but for the first Gina Miller case, parliament would not have had a vote on triggering Article 50. As with prorogation, it was only the courts which acted to constrain political power and, in these cases, to constrain the power not of parliament but of the Executive.

Rwanda Bill: Brexitism won the day without winning the vote    

In short Brexit nihilism is ludicrous in theory, dangerous in practice, and incoherent in both theory and practice. But it hasn’t just re-emerged for an encore with the Rwanda Bill. It is embedded in British politics. That is most obviously the case with the Tory Party which, as I wrote a couple of months ago, has been driven mad by Brexit. Even longer ago, in August 2022 when the Tories were engaged in choosing their new leader, who subsequently turned out to be Liz Truss, I made the point, which has become almost a cliché since then, that the Tory Party had become ‘unleadable’.

That had been only temporarily masked by Boris Johnson’s 2019 election victory. It gave the government a substantial majority – albeit one now whittled away to 56 by by-election losses and expulsions – but, actually, apart from the very early vote to pass the Withdrawal Agreement that ‘got Brexit done’ (sic), it was always a fragile majority, and factionalism and infighting were never far from the surface. Then, following the Truss implosion, Rishi Sunak briefly had enough control over the Brexit Ultras to squash the rebellion over his Windsor Framework, which at one stage threatened to muster more than 100 rebels but in the end fizzled out. At that time, I, like others, wondered if Britain’s Brexit fever had finally broken.

That has proved not to be the case. Although Sunak also won this week’s Rwanda Bill vote, with many of the ‘five families’ abstaining rather than voting against, the circumstances are very different to the Windsor Framework vote. For one thing, this is only the beginning of a legislative process which, assuming House of Lords opposition, has no realistic chance of being completed before the next election. There are plenty more votes on possible amendments to come which the rebels may win.

For another, even though the Brexitists want to make the legislation even ‘harder’, its existence even in its current form shows the extent to which their ideology has captured “the soul of the Conservative Party”. A rather naïve column from Iain Martin in the Times (£) suggested that what happened this week was that the “moderate MPs” who form “the bulk of the parliamentary party” had shown how marginal the “fundamentalist Brexiteers” have become. What that misses is just how immoderate the entire party has become, so that what would once have been an extreme position is now mainstream.

Because this wasn’t Sunak ‘the pragmatist’ of the Windsor Framework, temporarily putting the Ultras back in their box. It was Sunak, with the support of the ‘moderates’, making as one of his central priorities an unworkable, immoral, and probably illegal populist policy, that began with Johnson, and finding that, as always, the Ultras want more. It doesn’t even matter if they don’t get that from Sunak now since, as Robert Shrimsley astutely pointed out this week, it will just be grist to their post-election mill that his government failed by not being ‘pure’ enough in its Conservatism.

Where is the Tory Party heading?

But the Tory Party is really no longer discussable without reference to Reform and Nigel Farage. Clearly that has been true for a while, going right back to UKIP and the roots of the referendum. It was certainly obvious at the last election, when Farage stood down from fighting most Tory-held seats. Now, the two are inseparable, both at the level of electoral fortunes and, perhaps more importantly, because there is no discernible ideological difference between Reform and most of – if we must call them so – the ‘five families’.

That’s especially so for the New Conservatives and National Conservatives, and there’s almost a sense – or am I imagining it? – that the ERG now seems slightly dated and quaintly respectable by comparison with this new breed of Tory rightwingers. Bill Cash may be many things, but he isn’t a Jonathan Gullis or a Lee Anderson. Even Francois is more ludicrous than sinister. It’s a bit like the way that ‘old school’ gangland bosses like the Krays were displaced by even more ruthlessly violent psychopaths. Say what you like about the ERG, but at least they looked after their own and loved their dear old mum, so to speak.

At all events, there’s no doubt the direction the Tories are heading in, at least in the short-term, assuming they lose the next election (and it’s telling that an ambitious one-time ‘moderate’ like Robert Jenrick is now re-positioning himself in anticipation of this direction). Even if Martin was right that there are still ‘moderates’ in the parliamentary party, it is undeniable that the membership, which will choose its next leader, is far from moderate. The Johnson-Farage dream ticket may just be a dream (or, perhaps, a nightmare), but the fact that anyone would even float such an idea, or that others pine for a Liz Truss comeback, shows the madness that is in the air. We may even see a complete re-alignment of the British Right, drawing in Reform but excluding what has previously been understood as Conservative traditionalism (for all that such an alignment would claim to be one towards ‘true Conservatism’), with it becoming the Brexitist Party in all but name.

Such a party, perhaps more likely led by one of the NewCons like Cates rather than one of the more familiar throwbacks like Braverman, and endorsed if not joined by Farage, would campaign not just on draconian anti-immigration policies but also on derogating from the ECHR and, very likely, reneging on the NIP.  This might doom the right to electoral irrelevance, but that certainly can’t be assumed, especially after the Brexit vote, even if the 2024 election sees a virtual Tory wipe-out. There is probably bedrock support of around 25%-30% of the electorate for such a Brexitist or NatCon party, augmented by some who habitually don’t vote and others who, after a few years of a Labour government, come to think that any kind of change, and any kind of ‘kick to the Establishment’ is justified.

That could create an electoral coalition similar to that which Vote Leave constructed, and, unlike then, it might only need, say, 40% of the vote rather than 50% to win an election, and it would have vociferous support from many sections of the media. Even if it only came close to winning, that might cement a NatCon takeover of the party for another electoral cycle, and for so long as it wasn’t in power then the many internal contradictions of its likely economic programme, which Times columnist Danny Finkelstein identified this week, could be glossed over. Indeed, as with UKIP and Brexiters in general, such a party could be far more effective and influential as a campaigning protest movement than as a government.

The Brexit battle to come

This is just speculation. But, assuming it has any plausibility at all, it is highly relevant speculation at least in relation to what will undoubtedly be continuing debate about re-joining the EU or the single market. That was given new impetus this week by a widely-discussed article by Martin Wolf in the Financial Times suggesting re-joining is highly unlikely any time soon, if ever. Other views are available, of course. But my point here, and of course I and many others have made it many times, is that for as long as there is a feasible scenario in which an incoming British government would seek to overturn any version of re-joining which might have occurred, such re-joining would never be countenanced by the EU. In this sense, the political battle for ‘anti-Brexiters’ for the time being is not to re-join, or even to try to persuade Labour to have a re-join policy, but to expunge Brexitism from British politics, or at least confine it to the margins.

Clearly things may play out differently. Even Wolf acknowledges the possibility that, say, a re-elected Trump pulling the US out of NATO would create such a geo-political shock that all bets would be off. So, too, might something as yet completely unforeseen, and perhaps (even) worse. But it would seem foolhardy, and even more pessimistic than Wolf himself, to work on that assumption when the scenario I have described is, for the time being, the more likely one.

On that cheery note, I’m signing off for Christmas and the New Year (unless something big happens). Many thanks to all who have read and publicized the blog this year and, in more recent months, left comments. I nearly decided to give up on it when I reached the seven-year mark, but here we still are. I’ll re-start early in 2024.

 

If you are stuck for a Christmas present for someone, why not buy them a copy of the updated edition of my book Brexit Unfolded. How no one got what they wanted (and why they were never going to), published by Biteback in September 2023?