Philip Collins 6 December 2018
As part of our Brexit coverage we’ll be asking expert commentators from a range of backgrounds and viewpoints to share their thoughts. Please remember that these views are the author’s and not personal advice.
Below former investment strategist and political adviser Philip Collins describes the politics behind Brexit progress.
The central question of politics is where does power lie?
Usually it is obvious. There is a written constitutional answer to the question. Even at the best of times the answer is less obvious in the unwritten British constitution. These are not, unfortunately, the best of times and power, or at least leadership, appears to have gone missing.
The referendum of 23 June 2016 transferred power from the government to the people. The verdict was delivered by the tight 52:48 outcome and returned a message to the executive and to Parliament that Britain should leave the European Union. Quite how that was to be done was never specified.
The later stages of November have been a case study in what a complicated instruction that has turned out to be and it has seen further shifts of power, to the point that it is now not at all clear who, if anyone, has taken back control.
Inside the politics
The impression that power was passing to Parliament was created by the judgement from the Advocate-General at the European Court of Justice that the UK should have the right to revoke Article 50 unilaterally within the negotiation period.
This ruling does not bind the ECJ judges but they do follow the guidance in eight out of ten cases. If the judgement is upheld it does, at least in theory, give MPs the legal power to stop Brexit. Article 50 could simply be revoked without the need for a second referendum.
Yet the theory doesn’t necessarily work in practice. Not everything contractual, said Emile Durkheim, is in the contract and that insight applies here. Even politicians with a firm conviction that staying in the EU is in the national interest will be wary of defying a referendum result with a simple vote in Parliament.
Ambitious Tory MPs would find such a vote a barrier to advancement within their party. Plenty of Labour MPs sit for constituencies that returned a heavy victory for Leave in 2016.
In practice, this is not a legal question at all but a political question and it is unlikely that MPs would make use of the power that the ECJ has, in theory, ascribed to them.
Deal or no deal?
The more important power that may, or may not, lie in Parliament is the power to prevent Britain leaving the EU without a withdrawal agreement.
The former Attorney-General, Dominic Grieve, laid down an amendment, which passed through the House. It sought to transfer power back from the government to Parliament in the event that Mrs May’s deal falls in the vote on 11 December, as looks all but unavoidable.
There was some confusion, after Mr Grieve’s amendment passed, whether it did indeed ensure that no deal was now impossible. Mr Grieve himself suggested that no deal was still possible but that Parliament had won the right to express a contrary view.
Here again is the distinction between a legal and a political right and it could be critical.
Those Brexit-supporting MPs who are sanguine about Britain leaving the EU and going straight onto terms set by the World Trade Organisation are convinced that, in the end, this is a legal question.
They say that, as Britain has already legislated to leave the EU on 29 March 2019, it will come into legal effect unless it is specifically repealed. It takes more, they say, than disapproval in Parliament to abrogate a law and, as legislation can only be scheduled by the government, they are confident that the default position is for Britain to leave.
The potential for fallout
However, it may be simply untenable for a government to ignore Parliament so brazenly if the majority against leaving without a deal were large.
A minority government would probably fall in such circumstances. So with no viable proposal on the table the government would be forced to play for time, to pause Article 50 (with the approval of all 27 EU states who also have some power here) and hope, like Mr Micawber, that something turned up to get them out of the hole they are in.
In the end, there has to be a majority for something and not just against everything.
Where the power lies
In the meantime, in the search for consent to her deal, Mrs May is appealing to two other sources of power: the markets and the people.
Perhaps, she thinks, if the markets are spooked by the threat of withdrawal without a deal, the turmoil will frighten rebels into passing her plan. It is a sort of outsourced Project Fear.
She is, at the same time, going to tour the country hoping that the pressure of public opinion will force MPs to lay aside their own reservations, and back her deal.
Mrs May’s stamina is admirable but her chances of success look slim. That raises the prospect that, with no move forward possible in any direction, power has to be returned to the people which would take us all the way back to where we came in, with a referendum.
Power, at the moment is everywhere but also nowhere.