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My Lords, last week the Prime Minister was questioned by Conservative MP Heidi Allen, who asked whether she accepted,
“the reality that there is no way that no deal will pass through this House. I ask with the greatest respect: what option does that leave us other than going back to the people? What else can we do?”.
The Prime Minister chose her words with care:
“If, at the end of the negotiation process, both sides agreed that no deal was there, that would actually come back to this House, and then we would see what position the House would take in the circumstances of the time”.—[Official Report, Commons, 15/10/18; col. 426.]
That is surely the correct constitutional position. Especially with a minority Government, with no likely majority for any specific outcome amongst MPs, that is the crucial fact of political life. In our parliamentary democracy, this applies whether the Government comes back with a deal or recommends no deal. Clearly, in both circumstances, the Prime Minster and her Ministers, whatever they may have said previously, have to contemplate how they can get the approval of the British public.
Both the reports to which references have been made, one from the Constitution Unit at UCL entitled The Mechanics of a Further Referendum on Brexit and The Roadmap to a People’s Vote, come to similar conclusions when identifying the most likely scenarios for a new referendum. The former sets out the most likely sequence as follows:
“More likely, a cross-party majority in parliament in favour of a second referendum could force the government’s hand … Procedural considerations could provide an incentive for ministers to propose a conditional referendum of this kind as a compromise in the event that the ‘meaningful vote’ motion is initially rejected”.
In other words, as MPs from all four major parties have said in recent days, this may well prove to be the only viable option for the Prime Minister and the Cabinet—it is her “Get out of jail free” card. Meanwhile, it is surely unthinkable that Mr Corbyn could successfully whip all Labour MPs to support her, let alone the ERG headbangers; they too will insist that the trust should be put in the people.
We come now to the practicalities, to which reference has been made. I have looked at these with other Members of your Lordships’ House, with the aid of these two important reports. I have examined the bare necessities for a new referendum Bill, to make sure that we have the basic elements in place if and when such a Bill is required. The two reports give us some invaluable guidance. We will have to accept that the very tight timetable, both for the legislative process and the campaign itself, imposes rigorous constraints.
The new Bill will have to be drafted to mirror the 2015 Act as far as possible. It must have the same franchise, to avoid accusations of the establishment “changing the goalposts”. Similarly, the choice must be binary: either to accept the Government’s recommendation, whether it is an eventual negotiated deal, or a no-deal situation, crashing out and falling back on WTO rules; or to remain a member of the EU on current terms, which is obviously the clear choice. The one big area of reform that must be incorporated relates to the inadequacy of transparency of the digital campaign in 2016; there are already proposals available for that. Otherwise, only relatively minor tightening-up is necessary.
Is there time to complete this legislative process through both Houses, and also to have the campaign itself? First, that depends on the Commons getting on with the “meaningful vote” in good time. Secondly, as has already been said, it depends whether, and on what terms, the other 27 member states agree to the postponement of the Article 50 deadline. It seems that that will be helpful, as has also been said.
In summary, the Minister may huff and puff at the conclusion of this debate, but he is not an elected Member of the House of Commons. Neither he, nor the Prime Minister, can stop this development, nor will they wish to do so, if all the other options are closed off for them. It is practical, political and constitutionally appropriate, and it looks increasingly inevitable. Those of us who marched on Saturday can be confident that we are on the right side of history, just as we were on opposing the illegal invasion of Iraq, and that the tide of public opinion is with us.