Blowing up Westminster: Brexit is achieving what Fawkes could not

Where Guy Fawkes failed, Brexit is succeeding in blowing up the mother of all parliaments.

Anti-Brexit campaigners protest on Tuesday before the parliament was due to vote on whether to support or vote against theagreement between Theresa May’s government and the EU. Picture: AFP

The Leave vote in 2016 was the first time in the full flower of British democracy — that is, since ­female and working-class male suffrage in 1918 — when a majority of people outside parliament ­demanded something that a ­majority of people inside parliament didn’t want to give.

Any political party that won an absolute majority (52 per cent) of such a large turnout (72 per cent) should be in legitimacy clover. It would be able to do anything — even more than, say, Tony Blair or Margaret Thatcher in their pomp — during its term of office. But this colossal fissure is between governors and governed, not government and opposition. As a result, the mother of parliaments has transformed itself into a legislative Blunderdome. Brexit is succeeding in blowing up parliament where Guy Fawkes failed.

By March 29 it’s entirely possible the Palace of Westminster will be in geostationary orbit.

As everyone (except, maybe, Theresa May herself) expected, the withdrawal agreement went down to catastrophic defeat in the Commons. The 230-vote margin was so vast it surprised many people — including me. When May then went on to win Wednesday’s confidence vote handily, the sheer novelty of a prime minister whose government can command the confidence of the House of Commons but whose key policy and flagship legislation cannot achieve a majority in that same house ­became clear. For Britain’s constitution, this is the equivalent of trying to work out a new math­e­matics in which 2+2=5. The assumption has always been that a government whose main policy is opposed by a majority of the house necessarily falls. Change that, and everything else becomes unpredictable.

This absurd situation was brought about by the Fixed-Term Parliaments Act (2011), one of the stupider enactments to make its way on to the statute books in ­recent years (despite some stiff competition). To hold a general election, parliament must now pass a specific no-confidence ­motion. Loss of the governing party’s main policy is no longer enough. If such a motion is passed, the government has 14 days to see whether it can muster enough troops to sustain itself. If that proves impossible, government dissolves parliament and calls an election, which then cannot take place until another 25 business days have elapsed. January 30 is therefore the effective deadline for a no-confidence motion capable of producing a newly elected government before March 29.

That is why — and I suspect I’ll need a cup of tea, a Bex and a nice lie-down — I am saying things I never thought I’d say. I’m defending Jeremy Corbyn. He was placed in the miserable position of having only one possible string — a confidence vote — to pull, thanks to bad law. And in so doing he has succeeded in uniting the Tories around May.

May reminds me of a Bruce Willis move in the Die Hard franchise. There’s always a scene where loads of people are shooting at him. To survive, he grabs the nearest dead body and uses it for cover as he runs through a room full of baddies. For the Conservative Party, May is that dead body. She is soaking up the toxicity pullulating around Brexit. She plods along, one foot in front of the next, struggling against headwinds that would blow most politicians into oblivion. There’s something to ­admire in that. Except dead bodies aren’t bulletproof and nothing can hide the reality of Britain’s parliamentary ineptitude.

We are confronted by what electoral systems wonks and statisticians call a Condorcet paradox. There are Commons majorities against everything but no majority for anything. Thanks to a partially successful attempt by backbenchers from all parties — with the connivance of the Speaker, John Bercow — to wrest control of the Commons’ order of business from the cabinet, May now has to present her plan B on Monday. ­Although in the wake of Tuesday’s defeat she has initiated cross-party talks with all parties in the Commons — even tiddlers such as the Greens — I’m willing to prognosticate her plan B will be much the same deal as already rejected. It will thus be voted down again. The Commons then has a chance to vote on alternative policies — everything from no deal to a second referendum to joining the ­European Economic Area (often called “Norway”). Remember, though, if a majority can be found for anything, it would not have the force of law but merely would indicate a policy that has the support of MPs. It would put precise numbers on the analysis paralysis in the Commons.

The most powerful person in this process is the Speaker because he decides the order in which the indicative votes are taken. When confronted with a Condorcet paradox, the order in which the different options are set against each other usually determines which one comes out as the winner. Bercow, of course, has been seen driving around the parliamentary estate in a car sporting a “Bollocks to Brexit” windscreen sticker. Although quick to point out car and sticker belong to his wife, he is a rare combination of competent (he really has swallowed Erskine May, the Commons version of Odgers’ Australian Senate Practice) and biased (he ­loathes the idea of Brexit with the blazing heat of a thousand suns).

Some Remainers want a second referendum because they think they will win. It is also the most realistic route for reversing the 2016 result. If a proposal for a second referendum were put to the Commons first, however, it would fall — most don’t want it, in the Commons or among the public. But (and this is a big but) if it came up after other ­options such as Norway or no deal were voted down, it may pass. This means the “people’s vote” crew want a vote on Norway or no deal first and would vote against them.

Conversely, if Norway or no deal came after a second referendum had been rejected, the “people’s vote” crew would likely vote for Norway because it would then be a matter of Norway or no deal.

So far, so simple, except the Condorcet paradox in the Commons has been complicated by two external factors.

The first is the European Court of Justice ruling that the triggering of article 50 can be revoked unilaterally ­without cost but cannot be unilaterally extended. Effectively, Britain could cancel Brexit almost as easily as it can leave without a deal, but it cannot ­extend the article 50 process without a tremendous fiddle-fuddle.

Extension not only requires ­approval from the EU27 but passage through both houses of parliament in the normal way. Con­stitutional lawyers George Peretz QC and Robert Craig argue that there is a way to short-circuit the article 50 extension process to a degree, but it has to come from the executive and use the “royal prerogative” — that is, it has to come from May and her cabinet. It also requires Commons approval, too. Remember, of course, May still has the confidence of the house. The only way of forcing her to seek an extension is to pass an act requiring her to do so. That would require revoking the standing ­orders giving the government control over the Commons timetable, something requiring the ­opposi­tion parties to join with a dozen Tory defectors. Both a second referendum and a general election need an article 50 extension.

Given that no deal requires the fewest steps, but revoking article 50 entire — thanks to the ECJ — is not particularly taxing, it ­occurred to me while watching the ongoing Commons omnishambles that this dichotomy maps rather neatly on to Leave and Remain. Maybe the definition of hell is refighting the 2016 referendum for all eternity.

The second complicating factor is that polls on the original Remain v Leave question have not shifted since 2016, even if people on both sides and of all political stripes think (rightly) the folks supposed to be running things in Britain are continuing to trip over each other and fall en masse down separate flights of stairs.

Labour is coming under enormous pressure to back a second referendum as policy. Corbyn is resisting, and not just because of his lifelong Euroscepticism. He has made it as clear as he dares (given constraints) that he wants to see Brexit happen and he is going to avoid a second referendum if he can. He argues he could negotiate a better exit deal if he were to win an election.

However, there is one point where Corbyn is exactly right. The most significant problem for most Leave voters with May’s withdrawal agreement and with all other ­(negotiated) forms of Brexit on offer is the Irish backstop. This is a non-issue for Corbyn, who has ­always supported a united Ireland.

What has not been widely discussed is the large number of ­Labour MPs who are desperate to avoid a second referendum — and for good reason. They fear it would give a huge boost to unpleasant populist politics and radically ­destabilise the country, particularly if the vote is a narrow one for reversing the previous result.

Corbyn-supporting commentators such as Owen Jones — if not Labour MPs directly — also have pointed out the elitism and class­ism of the second referendum campaign. This includes the tin-eared idiocy of calling it a “people’s vote”, as though everyone who turned out in 2016 was not, ahem, human.

Corbyn is thus trying to hold Labour’s electoral coalition together. It’s all very well people in the metropolitan media talking about how 70 per cent of Labour voters are pro-Remain. The practical point is that the other 30 per cent make up a large part of ­Labour’s working-class constituency and is disproportionately concentrated in traditional ­Labour seats in the north of ­England, south Wales and the Midlands.

The 70 per cent are also often in the southeast where ­Labour isn’t going to win anyway — they’re outnumbered by “shire Tories” — or in London, where they’ve already won. If Corbyn went all in for Remain he would win kudos with Labour voters in metropolitan areas but do huge damage to his party’s support ­elsewhere.

Several mistakes have brought us to this point. Leave campaigners never agreed on a unified view of future trade with the EU. That was understandable before the referendum but here we are, 2½ years later, and there is still no consensus. Leave’s other major failure was its eschatological vision of Brexit. All shall be milk and honey when the world is created anew. It never reckoned with the public, for example, about the disruption that leaving the customs union would cause to the manufacturing sector.

Meanwhile, Remain supporters never settled on whether they were trying to reverse the result or craft a ­decently close post-Brexit trading relationship with the EU.

As a ­result, they’ve decided to fight on every front, one vote at a time, with no distinction between arguable ideas (Norway) and bad ideas (a Turkish-style customs union). The mess in which both camps now find themselves is a stark reminder that one campaigns in poet­ry but governs in prose.

In all this, there is the reality that you cannot perpetuate a situation where there is such a gulf ­between what the electorate voted for and what politicians prefer. When that happens, it’s the politicians who have to cede ground, not the people.

In days gone by, superannuated elites refusing to accept defeat on existential questions of this type finished up with their heads on pikes. Democracy put a stop to that by doing what democracy does best: facilitating the peaceful and orderly transfer of power. But this does mean you elect a new parliament, not a new people. That, in truth, is the only deal that matters.

Helen Dale won the Miles Franklin Award for her first novel, The Hand That Signed the Paper, studied law at Oxford and was senior adviser to senator David Leyonhjelm. Her most recent novel, Kingdom of the Wicked, has just been published. She lives in London.