Politicians have lost the plot. But lawyers still grasp Brexit realities
In times of crisis, politics usually tramples on the law. But this time a fractured Westminster can’t even agree on the facts
Politics and law are entirely different ways of seeing the world, even though they bump up against each other all of the time. The lawyerly mindset emphasises precision, takes the time to be certain, and makes sense of everything through the rules. To the average politician, lawyerly arguments are finickity, pedantic and beside the point, because when it comes to the crunch, political will can sweep them out of the way.
I’m keenly aware of the legal perspective, partly because the magazine I edit, Prospect, publishes so many judges and advocates, and partly because I happen to live with a lawyer. Despite the exposure, I incline to the political worldview because I have so often seen the law being shoved out of the way by events.
Think of Iraq. Most lawyers saw no basis for the invasion, but it didn’t matter. Tony Blair could rely on his attorney general to hunt down and serve up an argument that half-rationalised the adventure. A couple of years later, the law plainly required the Serious Fraud Office to prosecute the web of corruption it was uncovering around BAE’s giant Saudi arms deal, and yet Blair could brazenly pull the plug. At the height of the credit crunch, there were said to be insurmountable legal obstacles to any merger between HBOS and Lloyds TSB, but once Gordon Brown judged this was the only way to keep the banks in business these obstacles were dissolved. Theresa May was originally said to take the legal fixing of parliamentary terms seriously – until she plumped for her snap election.
Every politician I have spoken to in the Commons over the last couple of days has been clueless about where Brexit actually goes next – but almost all were convinced there can’t be a no deal because most MPs don’t want one: politics will out. Legal commentators, by contrast, have ditched the customary caution for spine-tingling fear. While Conservative politicians celebrated the passage of the Brady amendment, which proposes reopening the prime minister’s deal to rewrite the guarantees given on the Irish border, lawyer David Allen Green tweeted that: “the officers’ committee of the Titanic [had] passed an amendment that the iceberg must move away from the ship”.
This time, I fear the lawyers could be right. For one thing, they can point to the clock. Barring an early EU climbdown over Ireland, something not even May is expecting, the deal is not going to be redone to mutual satisfaction by the next scheduled vote, on 14 February. Plan A is set to come back, and be voted down again. Nothing will have changed except that another two weeks will have passed, leaving just six left before we crash out.
‘No ingenious motion about this house supporting or rejecting this or that can change the fact that the EU is in charge. It is the politics of the Oxford Union to pretend otherwise.’ Photograph: UK Parliament/Jessica Taylor/PA
Another big thing that the lawyers grasp, which insular inhabitants of the Westminster village struggle to, is the type of law that matters here. Despite May’s posturing about enshrining the witching hour of 11pm on 29 March in UK law, it isn’t British but EU law that determines whether or not we are in the club. If Europe’s courts and institutions deem us out, then they will be bound to treat our citizens and goods like those from any other third country. Only an agreed deal with London can alter this legal position, and no ingenious motion about this house supporting or rejecting this or that can change that. It is the politics of the Oxford Union to pretend otherwise.
So Europe is in charge, and the clock is ticking, but – even so – there would ordinarily still be scope to haggle. After all, the many manufacturers in northern France, the Netherlands and Germany who sell into Britain really don’t want to be hit by tariffs, checks and delays, and nor – in the final analysis – would I expect the Irish to be so dogged about the form of the backstop that they’d risk a no deal and the accompanying certainty of the very hard border it is designed to avoid.
So politics should still be able to find a way back from the legal brink – except that British politics is simply not working as it does in an “ordinary crisis”. In an emergency involving, say, war or finance, a sense builds that something has to give, and – for better or worse – the unthinkable begins to be thought, and rules get bent or rewritten. We saw that in the banking crisis, and the “war on terror”.
But at Westminster, there is disagreement about the direction in which the irresistible force is pushing. MPs are dealing with opinion that is moving in diametrically opposing directions. Since the autumn, those in leave seats report a surge of resentment about a suspected plot to call Brexit off. Emboldened by under-the-radar “leave means leave” Facebook campaigns, no deal is becoming a rallying cry. Ears are being closed to arguments about jobs. One voice on the doorstep retorted: “Just get this done, and I’ll look after my family.” If that is the mood, anything softer than no deal will be a compromise too far.
There isn’t, however, any one mood. One member for a northern town told me she’d had more than 1,000 emails demanding the UK walks away, as against just 47 demanding a Brexit rethink. But the same MP said she’d swapped notes with a London MP, who had received more than 1,000 emails demanding a new referendum, and not a single one pushing for no deal. So “the will of the people” is pulling them individually in divergent directions, and there is no leadership to counter the chaos.
Jeremy Corbyn would find it perilously difficult to impose a clear line even if he wanted to. On the Conservative side, there is despair about an obstinately inflexible prime minister who is hugging her right flank close, and reaching out to those 60-odd Labour MPs who are looking for a way to get Brexit done only late in the day and as an afterthought.
So politics was looking like the art of the impossible, even before Tuesday’s votes. Then MPs voted down both Yvette Cooper and Dominic Grieve’s ideas to seize control of the levers and defuse the crisis. They then rejected no deal, but only narrowly and in terms that expressly had no legal bite. Then they voted to tell 27 other countries what to do about the Irish border, in terms those countries immediately rejected. In the Commons, the Conservative party may have looked newly united; to the outside world, it looked united only against reality.
Here’s the rub. The usual way in which politics can trump law is by adjusting to new realities. But today’s fractured Westminster cannot even agree on what the realities are. Which is why, just two months away from the cliff, we have officials who should be working on schools or benefits being redeployed to rewrite draft regulations about food packaging and livestock handling that may or may not be needed if we tumble over the edge. And this time, I’m afraid, the long-faced lawyers would seem to have a firmer grip on where things really stand than the politicians.