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Break the deadlock

MPs must go to the people if parliament cannot agree a view on Brexit, writes Thom Brooks.



Parliament’s Brexit deadlock is a problem of the prime minister’s making. The public may have voted for Leave, putting pressure on Theresa May to begin the Brexit process, but the urgency was not so great that she needed to trigger Article 50 to start the two-year clock before getting at least some Cabinet clarity on what the government wanted to achieve first.

May could have invited Labour to form a cross-party negotiating team putting the national interest first. Perhaps such an offer would have been declined. But if they later criticised the final deal, May could have blamed them for failing to work constructively towards an acceptable plan. In keeping the deal relatively secret from even her own ministers until this past autumn at Chequers – at which time her secretaries of state started jumping ship – May has no one else to blame for a deal few can stomach.

Her efforts were doomed essentially from the start. As a pro-Remain campaigner wanting to lead a party with a strong pro-Leave contingent, May was never going to be able to please Remainers or Leavers by promising something for everyone. Remainers were promised full protection of existing rights and protections in a Brexit benefiting all parts of Britain. Leavers were told that freedom of movement would end with the UK leaving the customs union and a complete break – and quickly  – without the time to ensure doing the latter didn’t undermine the former.

Unsurprisingly, parliament is gridlocked. Remainers are understandably concerned that May’s plan leaves the UK worse off still a part of EU regulations but without a seat at the table deciding what they are. Leavers object to a plan may be likely to keep Britain stuck in a transitional backstop permanently without unilateral power to call time.

Lacking any Plan B, May is now trying to play chicken with parliament to see if it might blink first, putting the vote only one week before the UK must notify the EU we really will be out of the EU from 29 March. She thought this was a good gamble. Maybe her Brexit deal was deeply unpopular, but it was better than a No Deal that the government has done nothing to plan for.

May didn’t foresee the ECJ ruling last month confirming that parliament could nullify the Article 50 trigger without the need to get approval from the EU. This ruling is a game-changer. It means there isn’t just a choice between May’s deal or no deal, but also Remain (or at least a pause until a new mandate from the next election makes possible any new negotiations).

But still the gridlock continues. Perhaps because MPs know May’s deal is a bad one, but unsure if bad enough to call time on Brexit – even if public opinion is becoming decidedly pro-Remain two years after that divisive vote in 2016.

I would advise MPs to go to the people if parliament cannot agree a view. This is not about re-running Brexit, but about drawing a line. The referendum campaign asked the public if they wanted to Leave, but not how. The prime minister has created a plan for doing this that few support – it’s not the Brexit they wanted. So why must it be foisted on them?

The second referendum should make the options either May’s deal or Remain. There should not be a third option to go back to the drawing board because no such option exists short of a new election. Plus that would be to keep holding a referendum again and again until the ‘right’ decision is reached.

And no deal is also not an option. During the campaign, those who said leaving could see us out without a deal were denounced as spreading ‘Project Fear’. We were told German car makers would never let Angela Merkel see us walk away. It’s not important such predictions are untrue, but that they were made. The vote to leave was not to leave any way, any how.

Perhaps the public would support May’s deal. If so, this would give a powerful push to MPs to back it and break parliament’s deadlock. Or maybe they – we – vote to stay in the European Union. Neither outcome will end the debate, but either will allow the country to move forward. And for that reason, if parliament cannot decide, it would be helpful if the people were given the chance to confirm their view.

Thom Brooks will be speaking at the Fabian Society’s New Year conference, Brexit and Beyond. Get your tickets now.

Thom Brooks

Thom Brooks is professor of law and government at Durham University Law School. He is a member of the Fabian Society’s executive committee and of the Society of Labour Lawyers. He is also director of the Labour Academic Network. His books include Becoming British (Biteback, 2016) and Reforming the UK’s Citizenship Test (Bristol University Press, 2022)


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