Brexit and the general election

30th October 2019

An Election Entertainment by William Hogarth 1755

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The United Kingdom is not leaving the European Union tomorrow, by automatic operation of law or otherwise.

The United Kingdom will be having a general election instead, on 12 December 2019 (assuming the current Bill before parliament is enacted).

There is now an Article 50 extension in place until 31 January 2020, although the United Kingdom can depart earlier if the withdrawal agreement is concluded.

What can those with an interest in the law and policy aspects of Brexit make of this general election?

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Firstly, it shows that the priority for the current government is not to “get Brexit done”.

The government had recently obtained a second reading from Members of Parliament for its Withdrawal Agreement Bill.

This was a significant moment, as it meant that the House of Commons, for the first time since the 2016 referendum, had voted positively in respect of Brexit.

Until then there had been a majority for avoiding No Deal but not for any positive version of a Deal.

A Withdrawal Agreement Bill given a second reading is more likely than not to proceed to a third reading, although there would no doubt have been amendments.

A reasonable period of time would have been needed for proper scrutiny, say of about a month or so.

With a fair parliamentary wind, all the stages of the Bill could have been completed by, say, mid-December.

In other words, there could realistically have been a Withdrawal Agreement Act in place by the date of the general election.

But this government, which supposedly wants to “get Brexit done”, has chosen to have a general election instead, and so will lose valuable weeks in which the Bill could have been scrutinised and Brexit achieved.

This demonstrates that the current government’s priority cannot be to “get Brexit done”.

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Second, it means the end of the parliament elected in 2017.

This will be a shame, as it has been a parliament that has become unafraid to stand up to the executive and feisty in its independence.

The people may have voted for Brexit in 2016 but the people also voted in 2017 for Brexit to be delivered by means of a hung parliament.

Both were, in their ways, the “will of the people”.

And if the contention is that the people somehow got their vote wrong in 2017 and should have returned a parliament with an overall majority, then one can also contend that their 2016 vote should be revisited too.

Nobody can predict the result of the next general election, but it would appear that many of the strongly independent elements (and individuals) in this current parliament will not be in place.

The 2017-19 parliament will be missed.

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And third, it is probably sensible that there is now a general election, despite the points made above.

The 2017-19 parliament had gone as far as it could go.

The current parliament may be commendably irreverent, but it is not in a position to do the one thing which is now required with Brexit, regardless of one’s perspective on its merits.

The current parliament cannot address the fundamental problem of Brexit: that is, whether the current Deal is the appropriate means of giving effect to the 2016 mandate, or whether that mandate needs revisiting?

And by implication: does there need to be a referendum, to confirm (or reaffirm) either/or the 2016 mandate and the Deal?

The MPs elected in 2017 are not in the position to ask this question let alone answer it, as they are trapped by their 2017 election promises.

There are not the numbers for a referendum – and there are not the numbers for anything other than support the current Deal on offer.

The 2017-19 parliament was exactly what was needed following the 52:48 referendum result – forcing politicians to compromise and work with other parties.

But a new parliament is needed to look at Brexit afresh and ask if the current Deal is the best way forward.

The December general election result may be a Conservative majority, or there may be a majority for parties that support a further referendum in some form (or even straight revocation).

And for Remainers, a general election is a risk – but a risk to be set aside the near-certainty that the current House of Commons which has passed the current Withdrawal Agreement Bill in principle will eventually pass it overall.

The December election in other words is the Remainers’ last chance.

That the current government even wants to give Remainers this opportunity is rather odd.

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34 thoughts on “Brexit and the general election”

  1. I would have liked to see what this Parliament would have done with Boris’ Deal but it’s not surprising that Boris himself wasn’t keen.

    1. Thank you David for your erudite comments over all this time. We look forward to further comments in due time in this seemingly unending soap opera.

      The outcome of the December election could swing any way one suspects. A concern is obviously that the electorate is more than sick and tired with the ongoing uncertainty and that even staunch remainers, despite the now very obvious deleterious effects of Brexit (Yellow Hammer), will now vote Conservative purely to bring it all to an end. Brexit has however no doubt already seriously damaged the UK economy with some financial firms and car manufacturers transferring to the Continent and who are unlikely to ever return. More will undoubtedly follow if Brexit becomes a fact in 2020.

      1. “That the current government even wants to give Remainers this opportunity is rather odd.”

        Not if you suspect that Johnson is aiming for no-deal (or pretty near as no-deal as his bill gets us if left unammended) or that he has high confidence in Cummings and their two new ex-Cambridge Analytica employees to use the data they have been amassing with good affect through social media and advertising. Or if you suspect he’ll take full advantage of our archaic electoral rules with are not designed for our digital age and frankly, not fit for purpose.

          1. “That is too much of a conspiracy theory to my mind”
            I can see why and, normally, would probably tend to agree. But the stakes here are really very high, the players have substantial “form,” and the electoral rules have repeatedly been demonstrated to be too easily ducked and too slow to have any effect: hire a forgetful agent who will do exactly what the central office tell him, and don’t ask any questions yourself appears to pretty much cover everything.
            So the question we need to be asking is, “Why wouldn’t they be cheating in any way possible?”

            At stake —something which seems to barely merit mention in most of the media— is:
            • a chance to govern with extraordinary “Henry VIII” powers, almost unprecedented in peace-time: even to the extent that Parliament will be allowed to scrutinise such regulations in theory, in practice it will be easily swamped and overwhelmed (and our perpetrators are well practised in throwing out a few outrageous measures which will raise sufficient polemic to help the rest pass in the shadows).
            • a series of (self-induced) national crises and emergencies which will be used to justify extending the scope, application and duration of these powers and, obviously, to delegitimise and demonise any opposition;

            Of course, the Government promised, in order to get the EUWA through Parliament, that secondary legislation would not be used to make major changes such as removing rights: yet already we see them trying to look *tough* on immigrants for the election campaign by removing the rights of EU, EEA, Swiss and Turkish nationals to own and manage companies or to provide services in the UK on the same basis as UK nationals with the ‘Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019.’

            The Government claims that all this is necessary to correct a ‘deficiency’ in retained EU Law, but are unable to offer any reason why the law containing rights of EU, EEA, Swiss and Turkish nationals should not operate effectively after exit day (except for their own need for attention-grabbing electioneering), let alone the prohibitions on discrimination on the grounds of nationality which are abolished by clause 4.
            What, therefore, is the urgency that requires such measures to be forced through this channel in such unseemly haste and without any impact assessment except the aim to avoid scrutiny and debate?

            Access to such untrammelled powers, and a crisis to justify their extended application, is the true goal of passing the so-called “deal.” The goal is to use them to change many aspects of British life more dramatically over the next five years than could be achieved in decades of government through normal Parliamentary processes (and so, for example, to expunge the last relics of the post-War settlement).

  2. David, I hope I understand you correctly that, while you are pausing your twitter activity, you are continuing your blog activity.

    1. Yes, there are times to step aside from Twitter. A general election campaign is one of them. I am not so interested in politics than policy and law.

  3. With regard to your first point, wouldn’t he have faced having the WAB torn to shreds with amendments on a 3rd reading? I had assumed he was going for broke with an election so that he can gain an outright majority then push his bill through with no amendments.

    1. yes. It is clear that this house has decided against implementing the referendum result and is simply looking for ways of remaining in the EU. They would have torn the WAB up.

      1. So what is the legal status of the WA the current government has negotiated with the EU should we get a complete new government (eg a Labour/LibDem/SNP/Green grand coalition)? Could they go to the EU and ask for changes, eg for a closer relationship? Is that a legal or a political question or a combination of both?

    2. The Bill may have been heavily amended but the parliamentary gravity would have meant it still would eventually have become an Act.

      It is in my opinion wishful thinking by Remainers to contend that the current parliament could have somehow continued forever to resist the passage of a Bill which had been approved at Second Reading.

      1. In contrast I think that relying on ‘parliamentary gravity’ alone is wishful thinking.

        Subject to numerous, substantial amendments the more likely outcome is that the government would have withdrawn the Bill.

        Even in the best case scenario one month seems optimistic. The 1972 Act took almost nine months to wend its way through Parliament.

        1. A Bill has been approved at Second Reading in a parliament where the majority were elected to implement Brexit, and there is a real risk that there would not be a further Article 50 extension

          For an apple to defy all that would have impressed Newton

        2. But this is why it was worth persevering with this Parliament rather than curtail the process. We do not know how it would have played out. It may well have been the case that after a time a consensus would have emerged. Perhaps that consensus would have seen UK leaving with this deal. Or perhaps a likely scenario was one in which the merits of the government’s approach to Brexit were tested discretely in a referendum.

  4. I thought the Cabinet wanted to get a ‘hard/no deal brexit’ “done”, so when they couldn’t, thought they’d try an election instead – to see if they can get a majority to bundle one through that way.
    Why a hard/NDB? I saw little enthusiasm to come up with any deal until they were forced to. The Cabinet adopted a Do Little approach on the pretext that the EU would cave in (the Davis gambit), and that NDB was the necessary stick to bring the EU to heel.
    It looks to me like they’d have been happy with hard/NDB and still would be – any govt that would inflict 9 years of Austerity, just for dogmatic reasons, wouldn’t shy away from it, as long as there’s some other body they can blame.

  5. The question for any of the Tory spokespeople is this.
    If the Conservatives fail to get a majority, presumably we can take that as an update to the ‘Will of the People’ for Brexit expressed more than 3 years ago?

  6. One of the biggest losses with the end of this parliament is that many of the more independently minded MPs will not be returning. They are either standing down or taking a big risk in running as independent. I’ll miss actual debate in the house.

  7. It’s certainly going to be an intriguing election.

    The polling has always been very much against May’s deal, and it probably isn’t any better for Johnson’s deal – and I haven’t heard anyone other than Boris claim his deal is better. That more MPs have reluctantly come on board seems to be more about their fear of No Brexit.

    So what is on offer for this election? Presumably Boris has to stand on getting his deal through – but it doesn’t seem that there are that many who would vote for that. And of those that would, it’s still a risk – can anyone really trust the deal to go through, or that it won’t just result in No Deal later?

    Labour will, presumably, stand on what they’ve been saying – renegotiate the deal, and put that to a confirmatory ballot. But without further extensions, they can’t do either – and there is no guarantee they will get them.

    Which then leaves the only clear, and clearly achievable, promises being made by the parties that either want to crash out or stop it entirely.

    Of course, there are so many other issues wrapped up in an election, not to mention tribalism, But my word, what an absolute bloody mess. And yet it’s still preferable to a continued stalemate.

  8. Very clear, thank you. The point that the 2017 Parliament has gone as far as it could is in particular very well put, and has not been made elsewhere.

    Although it might seem ‘odd’ that this Government has opted for another election rather than press home their present advantage, it is not really a puzzle at all – the reality of the Treaty’s outcomes would have collapsed this Government sometime in 2020, hence the enthusiam for a stronger mandate.

    Also admirable that the author has foreborne from predicting the outcome of 12.12.19!

  9. The Hogarth is a perfect image of the Johnsonian approach to this election. Not serious politics but a game an amusement that ordinary people may lap up or not. We shall see. Your point that getting Brexit done is not the reason, it is all about personality and power. Apart from winning a referendum without a plan, mastermind Cummings has failed at every turn, let’s hope he keep up his fabulous record.

    1. The extension was required by the Benn Act after the motion to approve the deal was amended, and therefore not passed in the required form, by the date listed in the Act. This all happened as a result of the extra sitting on Saturday 19 October, not of the WAB itself which wasn’t introduced until the following Monday.

      This was the hole that had been identified in the Benn Act: that the motion could be passed approving the Withdrawal Agreement, removing the requirement to request an extension, but the implementing legislation could then have been withheld or timed out, leading to a no deal exit. That could still happen in January if the Tories win – a Tory win does not necessarily mean exiting with this deal even if that’s what they promise in their manifesto.

      You are certainly correct about Johnson not submitting a new timetable motion that would allow the bill to be properly scrutinised, but that’s not why he had to ask for the extension.

      An interesting question is if the WAB now is agreed to carry over to the next session restarting at committee stage, or if it will die and a new Bill required after the election.

  10. Thanks. Your dispassionate and correctly informed analysis supplies a need.

    Your commenter Mr Ian Rickword (this page, above) seems right in suggesting that the WAB would have been torn to shreds at the committee stage, and that PM Boris Johnson therefore had his reasons for proceeding to an election. It will be interesting to see what the other commenters on this page, as their comments accumulate here over the next couple of days, have to say regarding Mr Rickword’s attribution of a certain rationality to the admittedly unsatisfactory PM Boris Johnson.

    “Commendable irreverance” – what a happy concept. Now we have a benchmark against which to measure the performance of future UK parliaments, and indeed against which to measure the performance of the (sedate? too sedate?) equivalent here in Estonia, the “Riigikogu”.

    Sincerely,

    observer Toomas Karmo,
    in Nõo Rural Municipality,
    approx 200 km south of Tallinn

  11. This is a confused post. Either this Parliament in consideration of the WA/WAB was likely to make progress with Brexit – your contention in the first part.

    – “A Withdrawal Agreement Bill given a second reading is more likely than not to proceed to a third reading, although there would no doubt have been amendments.

    A reasonable period of time would have been needed for proper scrutiny, say of about a month or so.

    With a fair parliamentary wind, all the stages of the Bill could have been completed by, say, mid-December.

    In other words, there could realistically have been a Withdrawal Amendment Act in place by the date of the general election.” –

    Or it was not and therefore a General Election needs to be held in order to elect a Parliament that will make progress – your contention in the third part.

    – “The 2017-19 parliament had gone as far as it could go.” –

    Yet you are, axiomatically, right in the first part. Furthermore, it is not possible to know how, following scrutiny of the legislation, in what direction Parliament would choose to travel. It maybe that it would have been prepared to endorse the legislation in unamended form, in amended form such that the WA could be ratified, perhaps with a requirement that Parliament and not the government would assume authority for deciding the question of transition extension in July, or it may have been unwilling to endorse it at all in a form that would have allowed ratification to take place.

    Indeed, it is possible that a consensus may have emerged in time for a further referendum, to confirm our arrangements for leaving the EU or alternatively to revoke the decision to leave at all.

    And so, this election is premature. In deciding the matter of Brexit, in any case, a reversion to the will of the people as generally expressed in an election is a poor substitute for the utilisation of a sharper device for testing the question.

    A phenomenon is apparent in our political landscape – the constituencies are pro leave, whereas the electorate as a whole is more likely than not pro Remain. Therefore, there is a distinct danger that an election, a democratic event, could produce a mandate for Brexit that has no legitimate democratic base.

    1. The reference to “The 2017-19 parliament had gone as far as it could go.” is in respect to the ability for this parliament to check the executive regarding Brexit, as is plain from the context of the quote you have pulled out.

      Your confusion is not because of the post.

  12. By opting for an election rather than continuing to debate the WAB, it looks like getting Brexit done is not Johnson’s priority. There is, however, another interpretation: he was not convinced the WAB would pass. And so he decided on an election instead.

  13. Thanks.

    I’ve been thinking about the way in which an advisory referendum, tainted by illegality and falsehoods, has come to be seen by so many as an inviolable mandate.

    I think this is something that needs to be unpicked by Remainers during the election campaign. They need to help people to understand that we don’t HAVE to honour the referendum result. We all know a lot more now than we did in 2016 and we should really reconsider the issues on their merits.

    I’ve been looking for blogs by you around the time of the Referendum Bill / Act and the referendum itself and can’t find much. One or two FT blogs, referenced in a Wikipedia article, but not as much as I expected. When you started this blog you mentioned your old Jack of Kent blog and said you might “re-post some of the old posts which seem worth re-publishing”.

    If you did post anything at the time that would help to highlight the craziness that has followed, would you mind re-posting?

  14. Regarding your comment that “the current government’s priority cannot be to “get Brexit done” – isn’t it more that they want #Brexit – but only on their terms? That means no scrutiny of the WAB, nor any amendments passed etc. Isn’t that the reason why the gov pulled the Bill and went for a GE instead? In the hope that they’ll be returned with a majority (?!!) and can therefore push through a hard Brexit, or even a no deal Brexit? Otherwise, why risk a very uncertain GE? – and just before Christmas as well.

  15. The mandate to “get Brexit done” was lost in 2017 when May called an election asking for a mandate to “get Brexit done” since it was (according to her) being stymied in parliament. Since she was returned at the head of a minority government, one could argue that the 2016 mandate was rescinded. It was claimed by Brexit supporters that 80% of the public voted for Brexit backing parties (Tory and Labour), but this is to wilfully misinterpret the vote, as confirmed by Brexit polling since 23/6/16, the local and European elections.
    If Johnson is returned with a majority, he will claim a hard Brexit mandate that does not exist (as revealed by all Brexit polling since July 2017), but he cannot be gainsaid. To convolute (again) resolution of the Brexit question with a general election is both disengenuos and an act of folly. Since the 2017-19 parliament was neither willing nor able to determine Brexit, the correct way forward would have been to return it to the electorate for a confirmatory decision to be followed by a general election. Now we are trying to resolve it with an electoral lucky dip where no pundit or politician has a reliable clue as to what will happen.

  16. David

    Do we not need the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 3) Regulations 2019 to amend the definition of Exit Day in the EUWA? This “must” now be done rather than “may” be done following the Benn Act but I haven’t seen any reference to it anywhere yet. I recall discussion in March/April about the difficulty it would cause if this wasn’t done (even though the EU wouldn’t consider that we had left).

  17. “That the current government even wants to give Remainers this opportunity is rather odd.”

    Indeed. What could account for that? ‘Panic’ would be my one word summary. Faced with the prospect of the deal being ‘bastardised’ with a series of amendments, notably full UK-wide “Customs Arrangement” (remember that one?) and/or ‘Confirmatory Referendum’ that would all make the Government look even bigger idiots that they already do (because they could have proposed any of these years ago and made Brexit easy), the Johnson/Cummings axis decided to do their own leap off the cliff. Yes, they probably do have some dim vision somewhere in the backs of their minds of Singapore-on-Thames and a bonfire of the regulations, but maybe are starting to realise these are not attainable in the real world.
    Election 2019 – conspiracy or cock-up? Guess where my money is headed…
    Especially because, as Prof. John Curtice points out, it’s an ‘asymmetric election’. The Tories can’t make any coalitions, especially not with the DUP. All the Remain minded parties can – even a Corbyn-led Labour Party. It wouldn’t be called a coalition, of course, but it would function as one, with the aim, ironically enough, of ‘Getting Brexit Done’.

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