Parliament cannot simply ‘block No Deal’ as some are claiming – it’s the default option

Parliament cannot simply ‘block No Deal’ as some are claiming – it’s the default option

The hardcore Remainers who are determined to thwart Brexit – a democratic decision taken by over 33 million people after a six-month campaign and which resulted in a clear decision and the biggest electoral mandate in our history – seem to believe that if they keep saying things which are palpably untrue on enough occasions, then they become facts.

One of those “factoids” which is the subject of received wisdom by people like Hilary Benn, Amber Rudd and Sir Keir Starmer who should know better is that Parliament can “block No Deal”. In Alice’s Adventures in Wonderland, Humpty Dumpty tells the eponymous heroine that “words mean what I want them to mean”. Remoaners take a similar view, irrespective of the facts.

It isn’t so. Nor is it possible to surmise how the Prime Minister and Chancellor of the Exchequer can plausibly make the case that there is a good chance of a “No Brexit”.

It was for the very reason that David Davis and I knew that Remainer refuseniks would use every low and disreputable parliamentary trick in the book to disavow the settled will of the electorate in 2016, that during the Committee Stage of the EU Withdrawal Bill earlier this year, DExEU ministers insisted that the exact date of our departure from the European Union (11pm on 29th March 2019) should be enshrined in primary legislation, clearly on the face of the Act.

We ensured that the repeal of the European Communities Act 1972 was the first clause of the then Bill too. Likewise, Article 50 of the Treaty on European Union is explicit that all the treaties of the European Union will cease to have effect in respect of a departing Member State at the conclusion of a two-year period – and this is enshrined now as an international treaty obligation.

Furthermore, the idea of attaching a plethora of so-called “Christmas tree” amendments to the Withdrawal Agreement and Political Declaration is otiose too. As has been confirmed in evidence to parliamentary select committees by Sir David Natzler, the principal constitutional advisor to the House of Commons and its Chief Clerk, such legislative tricks are effectively giant Early Day Motions – parliamentary wallpaper which would have no statutory effect.

Put simply, if Parliament wishes to have a second referendum or set aside Article 50, then MPs will have to find time to legislate for such an outcome and before 29th March 2019. No deal is therefore the de facto backstop, to coin a phrase. We don’t particularly want it, but it’s a guarantee that the will of the people will be adhered to.

In short, you cannot wish away the EU Referendum Act 2015, the EU (Notification of Withdrawal) Act 2017 and the EU Withdrawal Act 2018 on a whim. It is simply anathema to our unwritten constitutional settlement. Similarly, MPs cannot press for an early general election without removing the legislative lock of the Fixed-term Parliaments Act, which is why the Prime Minister’s implied threat that voting down her capitulation deal will inevitably result in an early general election is baseless.

Who knew that the heroes of Brexit might very well be Ms Gina Miller and Dominic Grieve QC MP? Their doughty fight for proper parliamentary scrutiny and oversight of the legislative Brexit process has, in a counter-intuitive manner, protected the outcome from evisceration by the Establishment and other vested interests such as foreign multinationals, Whitehall mandarins and the liberal media, all of which hate the freely made and reasoned decision of the British people in 2016.

Without Ms Miller’s Supreme Court case demolishing a central tenet of the Royal Prerogative and establishing the imperative of Parliament legislating for the invocation of Article 50 (and one reasonably assumes its revocation by statute too) and Mr Grieve’s insistence on a meaningful vote in both Commons and Lords, Brexit could have been destroyed by the untrammelled use of Royal Prerogative by Theresa May.

The good sense of the British people to humble her for her hubris and arrogance at the 2017 General Election, which resulted in an avoidable hung Parliament, likewise meant that eurosceptic Conservative MPs and the Democratic Unionist Party have curtailed the chances of her signing an even more disastrous deal with Brussels and have put her on notice of a calamitous parliamentary rout in several weeks’ time unless she reconsiders her policy. Imagine Mrs May with a landslide majority and the full powers of Royal Prerogative!

Therefore, the real choice soon to be made by Members of Parliament across the political spectrum, in pragmatic terms, is not between the Prime Minister’s terrible punishment deal and a No Deal or World Trade Organisation trading deal; but in fact between the latter and an improved deal with the European Union, in respect of both the Withdrawal Agreement and the Political Declaration. How many Conservative MPs truly believe that they must take the thinnest of gruel offered to them by Mrs May, because apparently the British people just “want to get on with it”? A deal signed off by the European Union Council of Ministers in just 38 minutes yesterday; a deal even rubbished by the EU-compliant CBI?

The key date for MPs to ponder is 21st January 2019 when the Prime Minister is obliged under the Withdrawal Act to come before Parliament and thereafter lay a neutral motion before the House on why a deal has or has not been agreed with the EU. That is the true deadline for securing a much better deal which honours the decision of the British people to take back control of their borders, laws and money at the referendum.

At that stage, I fully expect the Establishment and, in particular, Speaker Bercow to conspire to block Brexit as a final throw of the die, by seeking to allow the Standing Orders of the Commons to, in some way, be set aside so that the Commons could pass an affirmative resolution to extend Article 50 or rescind it. Such tactics will fail but would nevertheless have a terrible impact on the faith and trust people have in our parliamentary democracy and be corrosive to the implied contract made with the British people in 2016 when politicians promised the poll would settle the European issue for a generation. It would also give rise to anger and resentment and the rise of extremists on both the Left and Right. And, not the least, it would cleft the Conservative Party in two.

The stakes could not be higher. Conservative MPs will need to think about how history will judge them. I believe that most, when pushed, would rather the short term pain of a No Deal rather than suffer the purgatory of being effectively an EU colony and the strong likelihood of another 25-year Tory civil war over Europe.

The Prime Minister has consistently shown herself unwilling to compromise with her own parliamentary colleagues and, as such, must expect them in extremis to be brutal in putting the country and party’s interests before her own short-term and receding prospects, in the next few weeks. It appears the only way out of what will soon be an unprecedented existential crisis.