It is hard to say that the UK suffered a constitutional crisis last night when Theresa May's loss in the House of Commons was so widely predicted. Admittedly, the scale of it was not predicted, and was quite literally unprecedented, but that changes relatively little.
The reality is that a Prime Minister whose period in office has been identified by just one policy saw it resoundingly rejected and yet will, almost certainly, survive a vote of no-confidence today.
It is not her loss last night that represents the constitutional crisis. Rather, it is the fact that she will not be resigning and going to the country that represents that crisis, because it means that any semblance of Parliamentary accountability has apparently been lost in this country. That is the crisis.
The fact that the Leader of the Opposition has no apparent alternative plausible strategy to present to the House of Commons that might command a majority and so form the basis for an alternative government compounds this problem. But let's be clear; the UK's Parliamentary system was not designed for minority government and as such it has never been the expectation that the Leader of the Opposition should be in such a position without a general election to endorse their position.
What this, inevitably, means is that at some time, relatively soon, the UK must face a general election. In this context, soon may well mean before the year is out. I am, however, hopeful that it will not be yet. The very specific position that we are in suggests that there are other more immediate, and pressing, priorities for our political class to address.
That other priority is Brexit. That, and the fact that against the wishes of the combined opposition, and the sage advice of the House of Lords as expressed in many amendments, the government insisted on passing legislation last year that said that the UK must, come what may, leave the EU on 29 March 2019. This was, to understate my case, a gross error of judgement.
There are, of course, those who are seeking to exploit this error of judgement for their own ends. I suffered the usual frustration when watching Jacob Rees-Mogg suggest on television last night that the law is the law, and parliament cannot change it, and as a result suggest that a departure from the EU must take place in March, come what may. I am, of course, aware that there are Parliamentary conventions, including those that suggest an issue cannot be addressed twice in the same Parliamentary session on which, I think, Rees-Mogg is relying when making his suggestion. But, as one constitutional expert noted earlier in the day, when a constitution is based entirely on precedent the role of the Speaker, in particular, is to continually remake precedent to suit current need, as situations demand. The current situation most certainly imposes demand.
The first, and most pressing demand is the Parliament take control of its own affairs. We very clearly have a government in office, but not in power. There is a pressing need for leadership, and if the Leader of the Opposition cannot supply it because a vote of confidence cannot be won then another type of leadership must be sought. This must be that of the House as a whole, based on the idea of seeking to create national unity at a time of undoubted crisis, along the lines that I suggested yesterday.
I am well aware that there are moves afoot to take action by early next week to amend the Standing Orders of the House of Commons to allow MPs outside the government to present legislation to Parliament. In other words, unless the government can show that it has a viable course of action to reflect the overall will of the people of this country to stay in some form of viable association with the EU after 29th March, then Parliament itself must take the steps to determine what that viable approach might be.
The absurd fact is that Theresa May hinted at the need for this in her comments immediately after losing the vote last night. She said then that the House had rejected a deal, but had not indicated what it wanted. Slightly unbelievably at this juncture, she indicated that she would now listen to other opinion. But what she did not say was that she would want that opinion tested in the House so that the policy could be determined by Parliament as a whole. It is this that Parliament must now let itself do.
Having first of all tested that there is no demand to leave on 29th March without an agreement with the EU, by permitting legislation to alter this date and extend Article 50 to be presented and passed by the House, the combined leadership of the MPs of the House of Commons, perhaps best represented by the select committee chairs, must then, working if appropriate with the Speaker, ensure that a series of motions may be put to the House to determine what course of action is most likely to win support amongst members.
It so happens that the policy that might win support in this process will, in my opinion, most likely reflect that of the country. Last night's chaos did, I suspect, quite accurately reflect the country's opinion. The country did not want May's deal. It did not also know what else it wanted. The vote reflected this reality. I happen to think as a consequence that a series of votes in the House of Commons to determine what should be done next might well also fairly appropriately reflect sentiment in the country as a whole, or at least those parts of it which need to be tested in a second referendum. In other words, the options to be put on a ballot paper for final selection can be determined in this way. And, if the government refuses to cooperate in this process then I believe that the Commons has to overturn the government'swishes, and that is what it will do.
I accept, of course, that this is uncharted territory. I suspect that we have to go back to the era of the English Civil War to find anything that might act as precedent in this regard. But so what? Innovation is frequently the consequence of necessity, and we have a need for Parliament as a whole to take a lead at present.
These options that I describe are available. They can be delivered. They will show leadership. And if the EU is asked to extend Article 50 on the basis that the UK needs time to resolve its constitutional crises I have little doubt whatsoever that they will grant it, even if that requires that we participate in an election for the new members of the European Parliament in July. As the EU's leadership has made clear; overall they would rather that we stayed in, than were forced to leave.
It is my belief that once parliament has acted in the way that it should, as indicated here, over the next two or three weeks then it is beholden on those with wiser heads in the Commons to cooperate in the national interest if there is to be a general election. I do believe that all parties could, and should, cooperate in this process. I would not wish to exclude anyone. But what is required is a plan to reform Parliament; to provide us (by which I mean each of the nations of the UK) with constitutional certainty; and we need to agree the basis for a new relationship both between us as nation states and with Europe which will, almost certainly, involve some renegotiation of existing terms, even if we were to remain in membership. But that might require some common sense to prevail; a sense of the greater national interest to be realised, and a rejection of extremist hard-lines that have become an unfortunate feature of current Parliamentary activity so that a solid basis for government can be recreated, since that has now been lost.
I am aware that I do, quite often, and blog posts stating that I live in hope. I have to do so again. I do not have any wild expectation. But, I can hope. And on this occasion, we all need to.
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The last paragraph of your post is excellent. Six times you sum up what this is really all about.
I suspected this was spam
It is
How many more “what we need is” posts can you write?
How many would you like?
I can offer discounts by the dozen
You are right – it is time to hope.
Here is a thoughtful piece about the second referendum question from a source I trust:
http://blog.spicker.uk/a-second-referendum-is-not-the-way-out-of-this-mess/
Parliament in my view needs to remember the sovereignty that lies in the final analysis with itself – within its walls, on its grounds, amongst members – that has already been delegated by the people at the last election and all previous elections and will continue to be so until that system is changed (and boy! – does it need looking at and I agree with what you have said above about how it could be done.).
What makes me laugh is that this parliament which seems willing to hurt people with universal credit, austerity and privatisations but will not turn around and tell the same people that the vote for BREXIT will do immense harm and that it is the wrong thing to do and pretends that the referendum is sovereign.
But all you will get out of the Tories is a focus on the gains it is after – BREXIT = economic downturn = more austerity = more retrenchment of the State and its support and management of the commons for the British people. The Tories long game is just that – to use BREXIT as the coup de grace of whatever is left of our post war society. Hence the intransigence that in Tory history books will be written as May’s ‘heroism’.
That is why we would benefit from May resigning and taking her woeful Government with her but she needs to make way for a national interim government now made up of cross party interests – not a bloody general election Jeremy!! People will just see Labour trying to cynically capitalise on the debacle. I can tell you now – people no longer believe in the left or socialism riding to their rescue and many do not want to be rescued – they want to help themselves. Such is the end result of Thatcherism.
Such a national government needs to start from the sovereignty principal that we seem to have forgotten. Using that principal within a national Government is where stopping this cruel joke starts. A national Government that will hopefully invest in work and prosperity (the Green New Deal for example) that will do a lot to ease the grinding unhappiness these Tory tormentors have heaped upon us these last nine or so years.
And those who tell us that abandoning BREXIT will turn people off politics don’t you realise that the damage has already been done? What the hell do you think caused BREXIT in the first place?
Riots? Dangerous disorder? Well, we’ve dealt with those in Ireland, at many an former mine and mining community (also the odd printing works) haven’t we? Thatcher did not flinch and nor should we. The enemy within is now The Right.
Bring it on.
Restore the sovereignty of Parliament.
Restore order.
Restore our country from right wing populism.
Restore state investment as palliative to the discontent that even the Tories themselves cannot really control.
“Restore the sovereignty of Parliament.”
And could that be where some of the problems lie?
Could the answer be to make the people sovereign?
Willie
Sovereignty is about the use of power to make / take decisions. Our history and the way this came to be is written a lot about elsewhere. Check it out.
How it works, is that the people’s sovereignty is based on choosing and sacking their representatives on a regular basis who use the sovereignty based at Parliament to carry out what the voter votes them in to do. As Churchill said, its not perfect but it works. Or, it did work. Anyway…….
The HoC under the leadership of a rich, posh, arrogant idiot (called David Cameron) promised us a referendum in order to boost his popularity and thought it would pass this issue onto the public to see what they felt. Poor little Dave did not think that there was a serious threat to our membership because like most of his ilk he underestimated the Euro-haters in his own party and over-estimated his reputation with the voter. Bye, bye Dave……………
And then, a very naughty, silly and weak politician (Theresa May who followed on as PM) abused her power and sought to use the referendum to her advantage in a general election saying that ‘BREXIT means BREXIT’ forgetting (deliberately perhaps) that the decision to leave actually lies with Parliament and not her – something that she had to be reminded of by our Judiciary.
The Tory Party has repeatedly abused its power in Parliament Willie. This is a problem of the people there – not of parliamentary sovereignty itself.
But the Tory abuse of ordinary people in this country by austerity, Universal Credit and pitting one section of society against another means in my view that the voter can be trusted EVEN LESS with the concept of sovereignty than MPs.
There is a lot of anger out here Willie. Only the House of Commons and its Speaker can save us now in my view. And yes – it may fail.
Pilgrim,
I don’t see that piece that you linked to being “thoughtful” or the least bit convincing. There’s no argument in it beyond a generalised abstraction and a defeatist mentality.
Well, that’s tough Marco. I stand by my support for Paul because he adds a bit more to my view that a second referendum is NOT the way to go. You choose to critique it. Fine.
Are you an adherent of a second ref? If so – understood.
As far as I can see not only are we not ready for ANY BREXIT at all, but we have not yet fucking satisfactorily resolved any issues with RefV0.1yet and how proper and fit referenda should be conducted in the future even though people are telling us we should have another.
Is that a sound basis for another referendum?
I think not. And if you do Marco, then I believe that you and other adherents of RefV0.2 are totally deluded.
Sorry.
BTW – Explore Spicker’s work on welfare systems – its excellent.
Well there might not be a ‘sound basis’ for a 2nd ref., there certainly wasn’t a sound basis for the first and yes, “we have not yet fucking satisfactorily resolved any issues with RefV0.1yet” sure, but it has been 2 years since then, there is a looming time limit on resolving the issue generally and it increasingly appears that the only remaining option (no pun intended) is the 2nd Ref. A GE can’t be forced if the Tories don’t want it and clearly they do not.
All the other options , with the exception of a 2nd ref. have been closed off . You might argue that they should not have been closed off, that’s fair enough, but they have. A lot of people, myself included, see an upside in the fact that this is so and a clear opportunity for escape.
The thing that I can’t understand is Remainers who have always declared that the first Ref.was unfair, unrepresentative and did not reflect “the will of the people” on the one hand, but then turn around and say that a 2nd Ref. would probably yield the same result as the first. That’s a self contradiction. It also reveals a seemingly baseless fear. All the hidden issues from 2016 have now been exposed and the electorate has shifted.
As for the generalised argument that referenda are unreliable. Its not case specific, it has flaws and in many cases does not apply. This is by no means a typical case scenario.
What’s more it appears that a clear majority of Labour members want the ‘people’s vote’ (about 72%) which doesn’t necessarily mean that they are right but does suggest that Corbyn should endorse that as soon as he has gone through the pretense of exhausting the other options.
I realistically, objectively, cannot see a 2nd Ref. repeating the previous result. I explained my reasons for that briefly in the comments section of the previous post (1.24pm)
https://www.taxresearch.org.uk/Blog/2019/01/15/from-here/
and included some links:
https://ftalphaville.ft.com/2018/12/11/1544504400000/The-only-Brexit-chart-you-need-to-see/
https://www.cnbc.com/2019/01/06/britons-would-now-vote-to-stay-in-eu-want-second-referendum—poll.html
https://www.theguardian.com/politics/2019/jan/15/jeremy-corbyn-offers-little-hope-for-peoples-vote-campaigners
It is frequently asserted by Brexiteers (and echoed by commentators) that, without a change of law (by which they imply fresh primary legislation), under the terms of the European Union (Withdrawal) Act, the UK will leave the European Union on 29 March 2019.
But I am wondering if this is in fact correct?
It is true that Act defines “exit day” as the 29 March 2019. But the Act also allows that date to be amended by regulation. Section 20(4) of the Act says:
“A Minister of the Crown may be regulation_
(a) amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom…”
So on the face of it a Minister could by regulation substitute another date, or perhaps (on the basis that having revoked Article 50 there was no date on which the Treaties were to cease to apply) no date at all.
There doesn’t seem to me much doubt that a Minister can change the exit date by regulation. The only counter argument I see (and I’m a lawyer but wouldn’t pretend this is my area at all) would be that Section 20(4) only gives the Minister the power to change the date, and only for the purpose of bring the Act in line with the Treaties, rather than, either to change it to some arbitrary date in the presumably distant future or to do away with a date entirely. But if this were the correct interpretation then Parliament would be legislating to repeal the European Communities Act 1972 in breach of our treaty obligation, whereas the intent of Section 20(4) is clearly to ensure that the UK does not do so.
Has anyone looked properly at this? Are there other lawyers who might like to comment?
Parliament is irrevocably split over Brexit.
An attempt to resolve that split through yet another general election will result in another hung Parliament probably more so.
A Second Referendum would appear to be necessary to achieve a clear majority direction for Brexit.
Parliament, however, in sanctioning such a second vote must make clear that it will use its Parliamentary Sovereignty to call off Brexit for the foreseeable future for the sake of social cohesion if the second vote is very tight.
!the overall will of the people of this country to stay in some form of viable association with the EU after 29th March”
Really? I thought I was asked if I wanted in or out. WTO terms are the best for all of us, certainly better than the fraudulent deal connived by May.
You clearly did not read the ballot paper
Should the United Kingdom remain a member of the European Union or leave the European Union?
This is what I remember, do you?
I’ll post it in the morning
“WTO terms are the best for all of us”
Champagne comedy.
“WTO terms are the best for all of us”
https://www.bloomberg.com/news/articles/2019-01-15/one-in-six-britons-eyes-stockpiling-food-medicine-for-brexit
Marco
Thank you for the links.
I’m sorry Marco – I cannot agree with you about a RefV0.2.
If we reflect on the way in which Vote Leave edged the win then there is one prime culprit and that is the internet/social media ingredient. How can even a well-meaning state regulate what goes on there and not end up being like China or Iran? The use of the internet heralds the end of referenda as far as I am concerned. Society has yet to come to terms with its impact on democracy.
Read Jarod Lanier’s ‘Ten Reasons for Deleting Your social Media Accounts Right Now’ (2018) about how the internet brings out the worst in human behaviour and think about the impact on another referendum.
Then there is the abuse by vested interests of data on the Net. Who is to say a Leave vote will not happen again?
Secondly how can a society as divided and lied to (as well as badly educated and ignorant of Europe) such as this be expected to behave rationally in such a situation? How it would it handle the responsibility? Not well I feel. In fact, it can’t handle it.
Thirdly, read Evgeny Morozov’s ‘The Net Delusion’ (2012) . The Net – considered to be neutral by its proponents – is far from it. Yet people naively think it is because it is not their bloody awful politicians talking to them on it.
Information flows that affect democracy have fundamentally changed. This is not your flipping 5th June 1975 EEC Referendum any more Marco! Savvy?
There is nothing contradictory about a Remainer not wanting a referendumb (sic) when considering the abuse of algorithms that deliver ‘information’ to potential voters.
That is why I insist on the analogue sovereignty of Parliament to go back to the beginning of the result and saying ‘No’.
As for Corbyn’s/Labour membership wanting Remain – then all Corbyn has to do is say that he will Remain and will not Leave via renegotiation. If there has been a Damascusian change of heart in Labour seats that voted to Leave (has there?) then he should tell the nation and Parliament that he will remain. Why go through another referendumb when the process is so vulnerable to distortion by a small (but rich!) minority through the internet and unregulated cash flows?
Maybe his 6% deficit in the polls might disappear?
As for want might/shouldn’t happen next?
1) Under Parliamentary sovereignty appropriated by Parliament from the monarchy for the people, Parliament should say no to BREXIT and article 50 is removed. It admits that the conduct of the vote was deeply flawed and cannot be sustained because of those flaws. The army is brought into BREXIT voting areas and any far right riot is treated exactly like the Irish Nationalists were treated in Northern Ireland and left wing trade unionists were treated here in the 1970’s /1980’s – namely as the ‘enemy within’ except that this time it is the potential right-wing killers of harmless female MPs who get their arses kicked instead. Count me in.
What many might think as an egg on the face moment would quickly pass into history as a moment of clarity and maturity. The first such mature act concerning Europe since 1951?
2) Parliament admits that it is not ready and asks for an indefinite extension of article 50 plus it will undertake a new referendumb when it has laid down some correct rules for conducting it (if ever they can be enforced). This would be a very long goodbye indeed but long enough to reduce adaptation by the economy but may also end up at (1).
3) Ermmm…………………………….oh sod it. Stick a fork in our arse. We’re done.
OK Pilgrim,
I’ll try to be brief, so 2 things:
1. I accept your point about algorithms and social media distortion. Its a serious point but you seem to be overdoing it a bit (“the end of referenda”).
One of the crucial ingredients that the organised trolls of Trump and Brexit needed to succeed was an element of surprise and covertness – to be unexpected. Well that has well and truly gone. The opposite extreme of expectation now rules (people are seeing Russian bots everywhere – both real and imaginary). The fake news is so over-policed that some perfectly legitimate bloggers are inadvertently being caught in the net (blocked out by Facebook and Google – not a good thing , I know). We should also remember that this whole idea of targeted messaging (for example) didn’t begin with the ‘alt-right’ or Russians. Obama was doing it 10 years ago.
What the alt-right and Russians did was overdo it – badly and get caught – big time. To that end they have probably done us a big favour, blown the whole thing up and brought it all to prominent attention early in its development. If they were smarter, a little more modest and discreet it could have gone on for years and remained under the radar.
To finish on that point I would note that the US mid-term results were very different to the 2016 presidential election and several state referenda were also held at that election with some really good results among them: improved rights for farmed animals in California as well as a tax on tech giants with the proceeds going to the homeless, in Florida an end to greyhound racing and more significantly an end to the infamous law that denies the vote to former convicts, legalised cannabis in Michigan and transgender rights in Massachusetts.
These were good referenda with mostly good results. I am glad that they were held. There were a few disappointing results on other issues in other states but the overall balance across that nation was very progressive.
https://www.vox.com/future-perfect/2018/11/7/18071246/midterms-amendment-13-proposition-12-california-florida-animal-welfare
https://www.bbc.com/news/world-us-canada-46120175
2. As to the case for the having a 2nd ref. rather than a Parliamentary result. I have already explained the practical case. The in-principle reason is that the Leavers would establish a massive, near-permanent culture of self-pity and martyrdom if the Parliament over-ruled “the will of the people” as they see it. They would use that to keep the issue alive for years on end and keep dividing the country along nationalist lines. On that account A 2nd ref. would neutralise the first.