Parliament’s Brexit Game: has anything changed?

The PM’s only chance of getting her deal through by the end of March was to have No Deal as the inevitable and only alternative. Parliament has finally prevented that, for the moment. The threat of cabinet resignations (to allow voting for the Cooper bill that would delay Brexit in order to prevent No Deal) has forced May to propose the same. Parliament will now, in sequence, vote against May's deal, against No Deal and for a short delay. Voting against No Deal is just symbolic: only voting for a delay can prevent No Deal.

A delay will require agreement from the EU, but all the signs are that they will grant it. Macron understandably wants a good reason, but at the end of the day I suspect the prospect of a No Deal that would damage the EU as well as the UK (just less so) will mean they will grant what the UK asks for. Just as No Deal was never a credible threat for May in her negotiations with the EU, neither is refusing a delay a credible threat by the EU. All 27 states have to agree, but they probably will with the help of collective pressure.

But nothing really changes with a short delay. May is not going to suddenly get a major change in the Withdrawal Agreement in two months. It is difficult to see what UK event could change enough minds in any particular direction. Thanks to the ERG, the option of forcing May out is not on the table. Are we going to end up replaying all this drama in two months time?

The hurdle in a few months time to a further delay is a little higher because of elections to the European parliament. May could be hoping that this factor alone would mean there would not be a majority in parliament for a further delay, and she can finally get her Deal or No Deal vote. For the same reason, the ERG can hope that they finally get to the edge of the cliff and beyond. In that sense, the real fight starts later, unless enough MPs have the sense to think ahead.

At this point it is worth reflecting on the dog that did not bark. When I looked at the parliamentary numbers in January I tried to assess whether any coalition of MPs could form to produce an alternative to May’s Deal. The issue is not the Withdrawal Agreement (WA) itself, but the future trade agreement that will be negotiated immediately after the WA is passed. Parliament’s only real lever to set the framework for those negotiations is to give instructions now. (A common myth is that the EU has prevented us negotiating on trade before A50 ends. In reality all they wanted is to set the terms of the WA first. It was Conservative MPs faffing around that prevented us starting trade negotiations before March 2019.) With a Brexiter sure to succeed May, the option of letting the WA pass and hoping for the best is foolish in the extreme.

I saw two main possibilities for any coalition of MPs that could come up with an alternative plan. One possibility was that enough Conservative MPs could join with most Labour MPs to agree a soft Brexit. Another is that the People’s Vote and soft Brexit groups could combine forces by offering a referendum on Remain versus a softer Brexit.

In fact something close to both of those things happened. At the end of January Labour put forward their soft Brexit proposal together with a public vote on that proposal. Voting was pretty well along tribal lines, with no Tory members voting for (including those now in the IG!), and a number of Labour MPs abstaining. The inability of Tory MPs to vote against their own party, even when in three cases they must have known they might well leave that party, effectively killed off this attempt at agreeing an alternative to May’s bill.

Sensible Tories could have tried to break down their own tribalism by doing something similar themselves, but instead they tried to compromise with the ERG, which is a sure path to nowhere. The only way any deal can be approved by a majority in the House is with cross party cooperation, and neither May nor her backbenchers seem willing to do that. Whether this is a generic problem, or a result of an impending election for party leader (and therefore PM) that will be decided by a very Brexiter party membership, is not clear. But it reminds me, not for the first time, of US Republicans, who voted to oppose anything Obama put before them just because he had put it forward.

So we not only have the ERG who think a referendum where No Deal was hardly mentioned by the Leave side is a mandate for No Deal, or a Prime Minister who has produced a deal that fails to unite the country but instead just panders to her pathological dislike of immigrants, but we also have Conservative moderates who refuse to cross party lines to get a less damaging and more realistic soft Brexit. This shows us how much the Brexit crisis is a problem the Conservative party has inflicted, and continues to inflict, on us. 

If parliament continues like this it makes May’s deal inevitable

So yesterday most of the Conservative party found unity, by once again believing in a unicorn. The unicorn that the EU would allow the UK to unilaterally end the backstop. Of course a backstop that one side can end without that side being in the Customs Union and Single Market for goods is not a backstop at all. Alternative arrangements to avoid a hard border in Ireland did not exist when the UK was negotiating with the EU and they still do not exist. If you wanted an illustration of how stupid this country looks to those overseas here it is. If you want to see how implicated the right wing press is in this stupidity look at the headlines today: Mail - “Theresa’s Triumph”, Express - “She’s Done It”.

Why did the Prime Minister and her party indulge in this fantasy? Because it runs down the clock. May wants to run down the clock because she thinks, with good reason, that in the end parliament will vote for her deal. The ERG wants to run down the clock because it wants No Deal. What we saw yesterday was the willingness of the Prime Minister to look completely stupid over the next week or so banging her head against an EU brick wall just to avoid compromising on her red lines.

What was new and much more worrying about last night is that we learnt there was a new block in parliament. This block will vote to stop parliament doing anything to try and find an alternative to May’s deal. We already knew that the ERG and May’s block would do that, but they were short of a majority. They got a majority last night thanks to 14Labour MPs. If this continues, it will prevent parliament coming up with any alternative to May’s deal that can command a majority. That just leaves May’s deal and No Deal left as we approach 29th March.

But surely, you may be asking, how can May’s deal win when it was so decisively rejected last time? The ERG will continue to vote against it, because they want No Deal. But will Labour MPs and Tory rebels still vote against it if that inevitably means No Deal? I doubt it. Anyone voting against May’s Deal when it is the only alternative to No Deal would get blamed for the chaos of No Deal. Instead Labour will choose abstention, allowing May’s block to beat the ERG block and May’s deal to pass.

If this happens, no one comes out of this well. The ERG really do hate an all UK backstop. May will have her negotiating credibility torn to pieces before she has to do a trade deal with the EU, in a situation where the UK is once again fighting against the clock (the end of transition). Labour will have not voted against the deal they committed to voting against. But the institution that would lose most with this outcome is parliament itself. It had an opportunity to take control from a bankrupt government and it failed. While it is tempting to blame the 14 Labour MPs, the real problem is that the majority of Conservative MPs are prepared to seriously damage the economy, make the UK an international laughing stock and risk the chaos of No Deal just to preserve the unity of their deeply flawed party.  

Parliament’s Brexit game

Someone may have done this elsewhere and probably with more accuracy, but I hadn’t seen it so I thought I’d work through the numbers myself. Suppose parliament breaks down into five main factions, with a very approximate indication of their size.

Brexiters - No Deal         100

May loyalists - No FoM   200

People’s Vote                 150

Corbyn loyalists               30

Soft Brexit                      150

You can see how Tuesday’s vote worked out. May’s block alone voted for her deal, while all the other blocks voted against. Note also that the soft Brexit block have no quarrel with the Withdrawal Agreement as such. It is the political declaration about what the UK tries to do after Brexit that they want to change.

The unusual feature of this game is of course that if no other block can get a majority by the end of March, the Brexiters win because the UK leaves without a deal. So the race is now on to get a majority. As we have already seen, May’s deal which effectively ends Freedom of Movement cannot get a majority, because the Brexiters who she courted for two years have turned against her (as they always would).

If May really did try and get a deal for a softer Brexit she would probably get enough, although many Labour soft Brexiters might be reluctant to sign up to anything that came from her. In addition the DUP could end their support for her government, and she might lose a few from her block. A more subtle move is to release her block to vote for something organised by Labour and Tory MPs. That is probably the best chance for a winning coalition, but May has until now proved too stubborn and too partisan to try it. Alternatively she could agree to a second referendum between her deal and Remain, which the People’s Vote block would vote for even if the proposal came from her, but she might still lose the DUP’s support. Sam Lowe and John Springfield have a discussion of May’s options here.

Another possibility, raised in my last post, is that the soft Brexit group and the People’s Vote group unite by offering a Remain vs Soft Brexit referendum. This would have a chance, particularly if Corbyn supported it. It seems clear that the second referendum block cannot win on their own (despite my best efforts to suggest that is the right way forward) while the soft Brexit possibility is still around.

That will be one reason why Corbyn will not declare quickly for a second referendum. So if May remains stubborn and if soft Brexit and People’s Vote fail to combine, we get into a war of attrition. To see which blocks are most durable, we need to think about what happens on the week starting 25th March. [1]

At that point, if no majority is formed over that week, we get No Deal. That tells you that the Brexiter block is the most durable (something May seems unable to understand). In that week May will undoubtedly try to push her deal through as the ‘not a No Deal’ option, but equally MPs will counter with a revoke A50 amendment. The latter possibility tells you that the People’s Vote group and May are more durable blocks than those advocating soft Brexit, because they have something to hope for in a last minute panic. That in turn means that the Soft Brexit block need to get a winning coalition sooner rather than later.

All this assumes that No Deal remains on the table. The only way it could get taken off is for parliament, or May and parliament [2], to commit to revoking Article 50 at a date close to leaving. If that happens we get a new game, because most of the Brexiter block would revert to May's corner, but equally other blocks would become more stubborn. But if this analysis is correct, it suggests she has a better chance of getting a majority for a slightly softer version of her deal if she took No Deal off the table. 

This is almost certainly wrong and incomplete, and I’m more than happy for people to tell me why. 

[1] It would probably be before that date, because whoever wins and stops no deal will need an extension of A50, and the EU may need some time to agree to that. But the EU will probably not grant an extension unless the UK has made up its mind, if only because they believe the threat of No Deal is needed to get the UK to make up its mind.

[2] Thanks to @SpinningHugo for reminding me that May cannot revoke A50 alone. 

Is Norway+ the way forward?

A number of MPs seem to think so. Their argument goes as follows. Although the Withdrawal Agreement (WA) is not about trade (beyond the backstop), and trade is dealt with in the Political Declaration that is not legally binding, a vote for Theresa May’s deal will be taken by her as endorsing her wish for a hard Brexit. In that case parliament should instruct the government to pursue a much softer Brexit now, because it is better to do that now than later (especially if later never happens).

Indeed it is plausible to argue that the current impasse in parliament would not have happened if May had gone for a soft Brexit (something close to BINO: staying in the Customs Union (CU) and Single Market (SM)) from the start. That, it could be argued, was the appropriate thing to do when the vote was so close. Another way of putting the same point is that there may not have been a majority for Leave at all if it had been clear that this involved leaving the CU or SM.

The narrow vote for the Welsh Assembly in 1997 is an interesting example in this context. It was even more narrow (it was won by 50.3%). As a result, according to this thread from Richard Wyn Jones, the winners went out of their way to involve some of the losers in the discussions about how the Welsh Assembly would work. [1] So if May had thought about uniting the country after the 2016 referendum she would have proposed some form of soft Brexit. Instead she tried to unify her party rather than her country, and the rest is history.

Although trying to unite the country would have been the right thing for any good Prime Minister to do (as May will probably find out today), I think the implication that subsequently a soft Brexit would have passed a vote in parliament is less clear. We return again to the critical point that a soft Brexit is not a compromise between a hard Brexit and Remain. Something like BINO is, for Leave voters, worse than Remain, because it gives away sovereignty compared to Remain with nothing gained in return.

Soft Brexit is Brexit in name only, and assuming Article 50 would still have been triggered there would have been two years during which Brexiters would have kept telling us that a soft Brexit is pay and obey with no say. And for once they would have been largely right. For a country as large as the UK, having an external body choose your regulations and trade deals when you have no say in that external body is a big deal. It is the opposite of taking back control. I do not think soft Brexit could have survived public scrutiny over two years.

This has important implications for attempts in parliament to modify the Political Declaration to commit to a soft Brexit before passing the WA. I can see the attraction for many MPs: it would be the same attraction it would have had to a statesmanlike PM after the 2016 vote. But there is a distinct danger that the public will end up hating it. Remainers obviously, but also most Leavers who will feel that they have been cheated by parliament.

If you are one of the MP’s going for this option and think I am wrong, there is an obvious way forward that could get us out of our current impasse. (I first heard this idea from @SimeOnStylites.) Combine your forces with those going for a second referendum in the following way. Propose a referendum between some form of soft Brexit (softer than May’s deal) and Remain. That proposal could command a majority in the house, and would still give people the option of throwing out the idea if they preferred staying in the EU. [2]

[1] This all came to light in a rather amusing way. May included this vote as part of her speech yesterday on why parliament should support her deal. She ‘forgot’ that despite the referendum result the Conservative party - including herself - voted against the Assembly being adopted after the vote! This illustrates why all the talk of the democratic need to respect the 2016 referendum by May and the Brexiters is just an excuse to enact a policy they want. Full story here.

[2] Of course Brexiters will complain, but they will complain just as much if the soft Brexit option is passed in parliament anyway.

How Brexit circumvented democracy

It is difficult to overstate the mess that UK politics is in, and the harm that is doing to many of its citizens. MPs have accepted a mandate from the people that Brexit should go ahead, but cannot agree on what form Brexit should take. With the possibility of leaving with No Deal a 100 days away, firms are having to make decisions to move jobs abroad to avoid the impact of that outcome. That in turn reduces the living standards of everyone in the UK. Rather than trying to convince them to stay, the government is actually urging firms and citizens tio plan for No Deal, as if No Deal was some kind of natural disaster. Billions of our money is being spent to plan for a disaster that the government can stop in an instant by revoking Article 50.

Let me put this another way. Theresa May and her government are spending our money to plan for a disaster that they might allow to be inflicted on the country they govern. It is the ultimate blackmail by the executive against parliament: vote as we wish or we will allow this disaster to occur. I cannot think of anything like it in my lifetime.  

It is worth taking a step back to see how politicians have got themselves, and us, into such a damaging mess. It results from one huge mistake, and that was the decision to allow a referendum in the first place. Even if you like the idea of referendums in a representative democracy, 2016 had two fundamental flaws. First, how we left (the form of Brexit) was allowed to be unspecified. That was a mistake Cameron made. The second, which he could not avoid, is that any Brexit plan required assumptions about how the EU would negotiate, and that again allowed wishful thinking on a colossal scale.

It was like offering to sell people fruit without specifying the type of fruit or its price. There is a great danger that people would say yes to fruit, and then be presented with rotting bananas that they didn’t like at an exorbitant cost. But when people say they don’t like bananas and these were too old and the price was unacceptable, they are told they had agreed to buy fruit so there is nothing they can do but pay up. You can see this problem in the polls: where Remain currently has a modest majority over Leave in a rerun of 2016, but it has a much bigger majority against the deal negotiated by May, with Remain versus No Deal somewhere in the middle (the last is probably flattered by many thinking No Deal means nothing happens). Therefore a consequence of both flaws in the 2016 referendum was that a second referendum, where both the form of Brexit and what the EU would allow were clear, became a democratic necessity.

But despite all they say, neither May nor the Brexiters are democrats in this sense. All the talk of will of the people is entirely bogus. They want their form of deal, however unpopular it is. We can pinpoint exactly when this anti-democratic move began. It was triggering Article 50 without any agreement from parliament about the trade deal that should be negotiated. All A50 requires is a withdrawal agreement before a country leaves, with trade arrangements to be decided later. Most MPs were foolish enough to fall for this trap. They couldn’t see the difference between a request for fruit and the delivery of a particular kind of fruit with a price attached. So although the Brexiters and May’s intentions in triggering Article 50 were undemocratic (remember she didn’t want MPs to vote), MPs made it democratic through their own folly. They signed the country up for whatever rotten fruit May produced.

May and the Brexiters’ plan would have worked if it hadn’t been for the Irish border, which the EU decided quite rightly should be part of the withdrawal agreement. They insisted that in any deal Northern Ireland would have to remain in the Customs Union and Single Market for goods to prevent a hard border on the island of Ireland whatever the rest of the UK agreed on trade (the backstop). The withdrawal agreement was now in part about trade. The fact that the Irish border was hardly discussed in the 2016 referendum campaign illustrates how that referendum cannot be a mandate for a particular deal.

The Brexiters did not want the UK to be part of the Customs Union or Single Market, and were quite happy to see a hard border in Ireland. But as the EU had ruled out doing any trade deal on these terms, that logically meant that the Brexiters required just one type of Brexit: leaving with no trade deal with the EU at all. This was certainly not what Leavers had talked about in 2016. May and the rest of her party were not prepared to suffer the economic consequences of this form of leaving, and so the actual Withdrawal Agreement (WA) May negotiated with the EU involved the UK staying in the Customs Union.

For Brexiters, this type of leaving was in many ways worse than being in the EU, so they refused to vote for the WA. Because most of Labour’s members want a second referendum the opposition dare not vote for the WA. We are therefore stuck. Stuck because of a badly conceived and poorly thought out referendum, because of May’s undemocratic nature (reflecting the very undemocratic Brexiters), and the EU’s laudable insistence on the backstop.

The curse of Brexit is that while a thin majority of voters wanted to leave in 2016, they cannot agree on how to leave, and many Leavers would prefer to remain in the EU rather than accept a form of leaving that was not their preferred (and often imaginary) option. The WA is much less popular against Remaining compared to the unspecified idea of Leaving. Quite simply allowing a decision to leave based on a thin majority in 2016 based on fantastic notions of what Leaving meant almost guaranteed that any particular realistic form of Leaving could not get a majority over staying in the EU.

This in turn is reflected in parliament, where neither the WA or No Deal can command the support of a majority of MPs. If MPs cannot find a deal that commands a majority (which they may well fail to do [1]), in a democracy that should mean no Brexit, or if MPs are too timid to make that decision themselves it would mean a People’s Vote. This is where the UK has departed from the representative democracy it is supposed to be. May refused to allow a vote on the WA, and therefore denied parliament its ability to work its way out of the impasse we are currently in. They say parliament is sovereign, but it appears this is not the case if the Prime Minister is determined to sideline it and MPs protect their party rather than their constituents.

We are trapped in a poker game between the two forms of Brexit few people want. The Brexiters are happy to continue to oppose May’s deal, because they know we leave with No Deal by default in March 2019. Furthermore huge amounts of money have been spent on preparing for this eventuality, an outcome only a minority of people want. The NHS is spending money on refrigerators rather than training nurses or doctors. May, who is known to be extremely stubborn, is not shifting from wanting parliament to pass her deal (also only wanted by a minority of the UK public), and she hopes as the March deadline approaches she can scare MPs into voting for it.

If either she or the Brexiters win their poker game we will embark on a form of Brexit that most people do not want, achieved by means that no one could call democratic. People do not want the WA or No Deal [2], MPs do not want the WA or No Deal, but we could well get one or other through a process of blackmail. On this issue the UK does not have a representative democracy, which is disastrous when it concerns one of the most important decision in my lifetime. Even if one side folds, we must remember the politicians who wasted so much public money, and squandered many UK jobs, just so they could play their silly poker game.

As this may be my last post before Christmas, have a good Christmas despite it all. 

[1] Corbyn dares not vote for any form of Brexit for the reasons I have given (which is why a government of national unity will not work). The Brexiters only want No Deal. That means a majority is extremely difficult for any form of Brexit without some form of coercion (like a threat to allow No Deal). It seems many Conservative MPs have not understood this.

[2] As the experienced pollster Peter Kellner says: "All the signs are pointing to the public losing faith in Brexit fast. It’s clear we need a People’s Vote." If you do not believe the polls, then lets find out with a real vote. 

Parliament has to start directing the Brexit negotiations

The moment it became clear that the EU would give full backing to Ireland’s wish for no hard border, and on the assumption that the UK side would not allow a sea border between Northern Ireland and the rest of the UK, it was clear what the range of possible deals between the UK and EU would be. The maximum possible change that would prevent the need for a hard border is that the UK stay in the Customs Union (CU) and Single Market (SM) for goods, while not accepting Freedom of Movement (FoM): the Jersey option. The minimum possible change is that the ‘transition’ became the final deal, with the UK staying in the CU and complete SM including FoM: the BINO (Brexit in name only) option. The final deal between the EU and UK has to lie somewhere between this minimum and maximum.

It is also where any final deal should have been anyway, given how close the referendum was. All the evidence we have suggests that those who voted Leave do not want a deal that will make them significantly poorer, which means that the final deal should be one that does the UK little economic harm. The negotiations should have focused from the start on what limits to FoM were possible at what cost in terms of (partial) membership of the SM. These negotiations should have taken place informally before Article 50 was invoked to give the UK some bargaining power.

Instead Theresa May allowed the whole process to be hijacked by the Brexiters, who treated the referendum like an election win with no manifesto. They believed they owned the referendum victory, and so acted as if they had the right to decide what Brexit means. As a result, we have wasted time talking about impossible deals, rather than negotiate within the space that a deal can be done. It is in fact worse than that. May and the Brexiters, by refusing to let go of their fantasies (about a technological solution to the border problem or about the EU caving into their wishes to be part of the club without signing up to the rules) have split the negotiations into two parts: the preferred deal and the backstop.

As has now become clear, the idea of a backstop is predicated on there being a customs border between Northern Ireland and the rest of the UK. The EU should never had allowed this device because they should have understood that such a border would be politically impossible. Instead they took far too seriously May’s red lines, which they interpreted as the UK wanting a FTA which would in turn require a border in the Irish Sea to avoid a hard land border. They made the mistake of thinking that because this was obvious to any objective observer the UK side acknowledged this fact. May encouraged this belief by appearing to agree in December to a sea border, only to be pulled up at the last minute by the DUP. In short, the EU made the mistake of thinking it was negotiating with a rational counterpart, rather than one that was at war with itself.

This is the context of the parliamentary votes on the Lord’s amendments on 12/13th June. Parliament is, in effect, trying to manage the negotiating process because those conducting the negotiations so far are getting nowhere. Some of these amendments attempt to direct the government towards negotiating in the relevant range (the CU amendment proposed by Lord Kerr), and to give them the space in which to do so (by removing the date of exit which was inserted into the bill by May as a way of appeasing her Brexiter colleagues or Paul Dacre). I suspect May would privately welcome both amendments if she has any understanding of what is going on.

The EEA amendment appears to suggest a specific point in the range of possible deals, which is why the Labour leadership and some of their MPs dislike it. I think their attitude is a mistake. The way to think about the EEA amendment, which is only expressed as a negotiating aim, is to steer the government towards the possible range of final deals, which has to include staying in the Single Market for goods. If this is not passed we will just waste more time as May fiddles around trying to inch closer to the possible range without the Brexiters throwing their toys out of the pram. [1]

There is also a purely short term political reason for the opposition supporting the EEA amendment. As I noted above, May will probably find it a relief to be directed to stay in the CU. She is already at the stage of realising that the UK staying in the CU is essential for a deal. The Brexiters will huff and puff, and Fox may even resign, but their anger will be directed at parliament more than May. The EEA amendment in contrast is likely to cause far greater discomfort in government: it is difficult to see how any Brexiter cabinet ministers will suffer this. So in terms of damage to the government, EEA inflicts much more than the CU.

May will also not welcome what is perhaps the most important amendment, proposed by Hailsham, which gives parliament the ability to direct the Prime Minister if the negotiations fail or the deal is voted down by parliament. However she has only herself to blame if this is passed, in particular for threatening no deal if parliament rejected her deal. By allowing the Brexiters to hijack the negotiations process, it is not surprising that parliament should decide that they need to start calling the shots. As Labour seem quite likely to reject a deal if she manages to achieve one, this amendment is crucial to minimise the subsequent chaos. The amendment is not quite parliament taking back control of the negotiation, but it does mean that May will have to start taking directions from parliament rather than the Brexiters. That has to be good for democracy in the UK.

[1] Nor should the EEA be seen as something that is inflexible. It already contains a brake on immigration, where countries can take "appropriate measures" if serious economic, societal or environmental difficulties of a sectoral or regional nature arise and are liable to persist. There are lots of other issues that would have to be addressed if the UK signed up to the EEA outside the EU, which means there will be the opportunity to negotiate around issues to do with immigration or state aid.

Postscript (13/06/18) The government did not lose a single vote yesterday, and it will be surprising if they do today. Rebel Conservative MPs did get some concessions which will hopefully allow them to have some influence over a situation where MPs vote against the final deal or there is no deal, and the rebel numbers were increased by the resignation of Justice minister Phillip Lee. But they completely failed to start directing how May conducts the negotiating process, which leaves the Brexiters as a constant drag on May's efforts to start negotiating something that the EU might accept.

At the end of the day, Conservative MPs have put party before country. Brexiters have hijacked the negotiation process, and Conservative MPs are content to let that continue, even though time for a deal is running out. The bill they voted on yesterday and today involves a substantial transfer of powers from parliament to the executive, and Conservative MPs do nothing about it. A rabid right wing press encourages far right nutters to murder one MP, attempt to murder another, with one Conservative rebel requiring armed guards because of threats, and the same Conservative MPs do nothing about it because that press helps their party. Just as in the United States, nowadays a pluralistic democracy is unsafe when the main right wing party is in power. Based on this record, I cannot see Conservative MPs voting against any final Brexit deal, which in turn means the chances of a second referendum - always slim - have all but vanished.  

Does democracy require implementing the referendum result?

We all know the EU referendum was not legally binding on parliament. That is not true of all UK referendums: the referendum on using AV did require parliament to enact whatever voters decided. Despite the lack of a legal requirement, there remains a powerful political argument that parliament was nevertheless duty bound to implement the referendum result. It is an argument that is often invoked by both government and opposition MPs. Now I have no doubt that in reality other motives are important, perhaps decisive, but because political arguments can be persuasive, it is important to debate this one.

The clearest argument along these lines comes from a post from Richard Ekins, who is a Professor of Law at Oxford University. He writes

“Parliament made clear that the decision about whether to leave the EU was to be settled by the referendum. There were good reasons, outlined above, why Parliament should not permit Brexit otherwise than by way of a referendum. Even if one denies all this, one should still accept that a referendum once held settles what should be done. For the decision to proceed thus is itself an important public decision that fairly governs how we jointly are to decide. That is, Parliament having decided to hold the referendum, and the public having participated fully in it, the result should be respected and not undone.

Political fairness and democratic principle require one to respect the outcome of the referendum even if one is persuaded that Brexit would be a very bad idea. One might think it wrong to hold the referendum, but it was held – and Parliament invited the people to decide this question. ... In short, the important constitutional question of whether Britain should remain in the EU was fairly settled by public vote.

The proposal to ignore or undo the vote is unjust. It bears noting that the relatively powerless in our polity – the poor – overwhelmingly supported exit. Ignoring the referendum would be particularly unfair to them.”

Note that this does not say that people like me should shut up about the harm that this action will cause. Instead it says that parliament, having invited people to decide, should respect that verdict. To do otherwise would be highly undemocratic, and would be particularly unjust to those who, for well known reasons, might justifiably claim that they are not well represented by the sovereignty of parliament. Arguing that the Leave campaign told lies, or that voters were deceived, does not seem to be a compelling argument against this, as exactly these charges can and are made after general elections

To help see why Ekins is wrong, it is useful to look at his discussion of the claim by Ken Rogoff that the “real lunacy of the United Kingdom’s vote to leave the European Union was not that British leaders dared to ask their populace to weigh the benefits of membership against the immigration pressures it presents. Rather, it was the absurdly low bar for exit, requiring only a simple majority.” But Ekins’ response strikes me as particularly weak. He essentially says parliament could do this because it has done it before. He goes on to say that there is “nothing at all perverse in Parliament choosing to make provision for a clear decision on point by way of a single referendum, inviting and encouraging public deliberation that culminates in a moment of clear and authoritative decision.”

This strikes me as completely ignoring Rogoff’s point. How can a 51.9% vote on one particular day represent a “clear and authoritative decision”. If a general election is close in terms of seats, that is reflected in the balance of parliament, and governments with small majorities and independently minded MPs face constraints on what they can do. What Rogoff is saying is that a referendum which only requires in theory a majority of only a single voter can never be clear and authoritative. Those who lost can justifiably claim that if the vote had been taken a day later or earlier the result could have been different, and we know they could be correct. The fact that UK governments have made this mistake in the past does not make it right. Remember we are talking about what is right politically, not what is right in law, so precedent is far less compelling.

Much the same point applies to the issue of a second referendum. He says: “Parliament having chosen already the decision-making procedure, it is not legitimate now to say that this should be set aside. The time for arguing for a two referenda requirement, or majority support in each part of the UK, was before this referendum was held.” He is certainly right that those who had won would think it is unfair to apparently change the rules of the game after the event, much as those who have lost think the whole process is deeply unfair and unjust. I also think that Ekins’ appeal to those who are otherwise unrepresented resonates with many Labour supporters, who feel that such a move would look just like the elite overriding the wishes of the people. (See Owen Jones, who questions Corbyn’s leadership but not his Brexit line.)

Except that is nonsense. If those who voted to Leave cannot get a simple majority in a second referendum when we have a lot more information about what leaving entails then that indicates something very wrong with the initial vote, and not some plot by the elite to cheat them. It is hardly undemocratic to hold a second referendum because the situation has become much clearer. As I have said before, when politicians argue that allowing a second vote is going against ‘the will of the people’ you know that you are in real trouble.

Is that unfair to one side? Of course not, because it is how politics works. Take the Scottish referendum, where Remain won by 55.4%. Just a few years later, and we could well see another referendum. To say that is different because something crucial has changed actually plays into the arguments for a second EU referendum. Unless voters perfectly anticipated the nature of the exit deal with the EU, that deal in itself is a huge and crucial change.

It seems to be neither politics nor fairness dictates that something poorly done in the past should dictate what politicians do in the future, when there is no legal constraint on them changing their minds. Holding further votes when the situation has changed cannot be undemocratic or unfair to anyone. [1]

I think all this is a useful perspective when we go back to the original question of whether parliament is obliged in some way to enact the result of the referendum we have had. Recall that Ekins says: “Parliament made clear that the decision about whether to leave the EU was to be settled by the referendum.” Now I have said in the past that I can understand why an individual MP, who has pledged to let the referendum decide their vote, should feel duty bound to keep their word. But I do question how exactly ‘parliament’ made such a pledge. An obvious way for a parliament to make such a pledge is to embed it into the terms of the referendum itself, as was done with the AV referendum. This was not done on this occasion.

It seems to me, therefore, well within the rights of any MP or Party to say that they do not regard a vote this close as binding on how they should vote. Indeed I would go further. Any MP or Party who thinks, based on the knowledge they have, that those voting Leave will over time regret their decision, has a duty to vote based on his or her judgement, rather than be tied by some vague notion around parliamentary commitment. 

But all this assumes that the Article 50 vote was just about implementing the referendum. It clearly was not just about that. Any sane discussion of the referendum has to recognise that voting Leave gave no guidance to politicians about how to leave. The referendum was not about the Single Market, the customs union etc. What the Prime Minister should have done was to allow parliament to debate the issue of how to leave, which is critical for the future of the UK. No doubt they would have given parliament a lead, but triggering Article 50 could have waited until that discussion had taken place. [2] Theresa May decided not to allow parliament that discussion.

As a result, the vote on Article 50 was not just about deciding to start the leaving process, but it also effectively became the last chance for MPs to express any view on how we should leave. That in effect made the vote a decision to leave the way May had decided, or might decide without recourse to parliament. The moment the Prime Minister did that, any obligation an MP might have felt regarding the referendum became null and void.

This is the crucial difference between 1975 and 2016, and another reason why arguments that appeal to precedent are wrong. In 1975, voters had a clear idea about what both In and Out involved. In 2016 what Leave meant was completely unclear, not least to those campaigning for it. That meant in practice that voters decided on the basis of the form of Leave they expected to happen, or perhaps were promised would happen, rather than the form of Leave the government would eventually choose.

It is for this reason that we appear to have a decidedly undemocratic result. If the referendum had set remaining against leaving for the type of hard Brexit that we are almost certain to have, it seems extremely unlikely that a majority would have voted for that. Yet those who argue that the referendum obliged MPs to vote for triggering Article 50 are in effect arguing for exactly that result. That is neither democratic, fair or indeed wise.

[1] I am sure many would argue that a referendum which came with the promise of a later referendum where you could change your mind would be too great an invitation to those who simply wanted to exercise a protest vote. I will leave that and similar arguments for others.

[2] The more people argue that such an arrangement would not have been practical, the more they illustrate how badly designed the original referendum was. Instead of debating and voting on a specific way of leaving (which could have been chosen jointly by those who wanted to leave) relative to remaining, we got a decision which was far too open ended. As a result, Leave campaigners said during the campaign that voting Leave did not imply leaving the Single Market. Once again, it seems odd to argue that parliament should not try and rectify past mistakes like this for the sake of some imagined commitment.