Paul Tyler writes….Clearing out constitutional confusions?

The current combination of Brexit bluster from No 10 and Corbynista claims seem to have confused even the shrewder media commentators: the rest are swallowing spin from both sides without any attempt at fact checking.

The idea that the Leader of the Official Opposition has a constitutional right to form an alternative government as soon as the current Prime Minister is defeated by a Vote of Confidence is wishful thinking by the Corbyn coterie. Similarly, the notion that Johnson can simply trigger a General Election in such circumstances is against the law.

Let me take you back to the Fixed Term Parliaments Act (which I argued for even before the 2010 election resulted in the failure of either of their parties to achieve a Commons majority). There was no logic to the previous convention. Nor could it be claimed to be fair. The captain of one political team could simply blow the final whistle whenever he/she judged that they had the best chance of winning.

In a parliamentary democracy we Liberal Democrats argued – successfully – that was a totally unacceptable anomaly, more suited to an “elective dictatorship”, as described by erstwhile Tory Chancellor Lord Hailsham. Hence the 2011 Act, promoted by the Coalition Government.

Under the Act each Parliament will normally continue for a full five year period. An “Early Parliamentary General Election” can only happen in one of two circumstances. EITHER the Commons votes by a 2/3 majority (including vacant seats) for a specific motion calling for it (as happened in 2017), OR a Motion of No Confidence is passed against the current Government, and – after a 14 day interval – neither it, nor any alternative administration, has secured a Confidence Motion.

During that period the current PM cannot trigger an election: clause 3(2) reads “Parliament cannot otherwise be dissolved”. In that respect at least Dominic Cumming’s threats are absurd

However, as you will readily observe, it is one thing to prevent crash out Brexiteers from cutting MPs out of this particular nefarious sharp practice, but quite another to so manage the process to achieve a more democratic outcome.

For a start there is precious little time. In Parliament we opted for the short 14 day negotiation period because we were concerned to minimise indecision, and its effect on public opinion and city confidence. Perhaps we were over-optimistic ? Given the current divisions in the Labour Party, with everything from true Remainers to outright No Deal Leavers, and the Corbyn leadership oscillating somewhere in the middle, what chance is there of a majority coalescing around Labour MPs in that short window of opportunity ?

As has been so clearly demonstrated in the last couple of days one thing is certain: Jo Swinson was absolutely correct in ruling a Corbyn-led cross-party “emergency” administration as a complete non-starter. The venom with which his sect attacked her showed just how much they now fear her and us, and how remote from political reality they have become. Dominic Grieve, Ken Clarke and others have quietly reinforced her judgement, and silenced the sniping from Caroline Lucas and Nicola Sturgeon in the process.

Nevertheless, the practicalities are formidable. It may be that it will prove more feasible to prevent the No Deal calamity by other legislative means, as others have suggested in the last 24 hours.

We should also recall that the Corbyn objective remains a General Election, preferably timed to take advantage of maximum perceived damage from the Tories’ Brexit obsessions and mishandling. He still finds it impossible – with McCluskey providing so much of his pay packet – to commit wholeheartedly to campaigning for Remain in a People’s Vote referendum. Indeed, Labour spokespeople still talk of a “better Brexit”.

Our cross-party drafted updated Referendum legislation could be passed in a matter of weeks, but we would still have to hold the poll after the 31 October deadline. Any further extension of the Article 50 process would require unanimity from the 27, and some may be too irritated by the Johnsonian insults to acquiesce.

Revocation, on the other hand, can be accomplished by the UK alone, as I am advised: should that be the more realistic objective for MPs ?

* Lord Tyler is the Liberal Democrat Lords Spokesperson for Political and Constitutional Reform.

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22 Comments

  • Scott Berry 17th Aug '19 - 9:10am

    I think, in the event we are holding a referendum or general election, the EU will grant an extension. They want us to stay and that’s a step toward doing so. But they set a new budget in May of next year, they won’t offer an extension beyond that point as setting that budget while we have one foot in one foot out will be impossible. That means there’s no time for Corbyn’s fantasy to renegotiate Brexit. We need to move to a referendum now.

  • Richard Underhill 17th Aug '19 - 9:11am

    Paul Tyler is a wise head who should be heard. “require unanimity from the 27”. The 27 Heads of Government, all democratic, may change over a period of time. There could, for instance, be a general election in Italy, and/or a change in the coalition in Germany, or a change in government popularity in France. Several (small) countries aspire to membership at moderate financial cost, if there are satisfactory guarantees of human rights.

  • John Marriott 17th Aug '19 - 9:16am

    An excellent explanation from Lord Tyler. Of course we need to keep the Fixed zterm Parliament Act. Most of the ‘democracies’ I know have something similar. Those that complain about it do so because they feel disadvantaged. That might be a good thing.

  • Dilettante Eye 17th Aug '19 - 9:39am

    “Revocation, on the other hand, can be accomplished by the UK alone, as I am advised: should that be the more realistic objective for MPs ?”

    So in sheer desperation you have even abandoned your demands for a 2nd referendum, and have decided instead to go straight for the revocation option?

    How do you plan to deal with the consequences of revocation which will be civil disobedience, social disorder, refusal to comply with future EU directives and a general refusal to engage with your post revocation Liberal Democrat dictatorship?

    Do you think civil disobedience is just hyperbole?

    Did you learn nothing from the Poll Tax riots?

    It astonishes me that otherwise intelligent folk, in crazed desperation, can lose the plot to such a degree that they frame their ‘solutions’, with such a cavalier disconnect from the reality of their consequences.

    What you are suggesting is a fundamental threat to the very contract of democracy itself. Stop this arrogant foolishness now, ..Don’t go there !

  • Thank you for this. It is very clear. I hope that it is followed by equally clear explanations of the real options which face the country.

  • Rif Winfield 17th Aug '19 - 9:56am

    Dear Paul,
    While you are absolutely correct in pointing out the consequences of the 2011 Fixed Term Parliaments Act, I think that Corbyn is probably less enthusiastic for demanding a General Election than he claims to be. Given current levels of support according to the main polls, Labour stands to lose upwards of 50 seats (mainly to the Tories) in such a contest, which should more than compensate the Conservatives for the seats they would lose to the Liberal Democrats. While many Labour activists are doubtless genuine in their beliefs that they can win a parliamentary majority if an election is called, I’m sure that are competent strategists within Labour ranks who have also done the maths and alerted Corbyn’s inner circle. At current levels of support it is unlikely that the new Brexit Party would win many seats, if any; of course, that would undoubtedly change should polling day be after 31st October and Johnson had not completed the promised final step of taking the UK out of the EU.
    Additionally, I do not see the prospect of using Article 50 to repeal Brexit as a possible process prior to either a referendum or the general election, and I don’t see this happening before 31st October.
    Best wishes,
    Rif

  • Tristan Ward 17th Aug '19 - 10:25am

    An incredible useful explanation of how the FTPA!

    Surely however, if a vote of no confidence Is won but Corbyn does not become Prime Minister, he (Corbyn) will whip Labour to prevent any other government forming and thus ensure the election he wants.

    What I don’t understand is how Labour can seek to sustain their current ambivalent stance.

    1 If Labour tries to campaign on a “Labour Brexit” platform they will be shown to be totally split as most of their activists and MPs want to remain in the EU. And there simply is not time to negotiate a new deal even if the EU27 were to allow it. The press will (rightly) tear them apart. Especially if the Tories stand on “no deal” platform – which they probably would, with the likes of Ken Clarke not standing and any MP who voted to bring down Johnson deselected.

    2 Could Labour really campaign on a platform of accepting May’s deal? Rejected by them 3 times so far? Their argument would be that it is the only option available to prevent a Tory no deal Brexit. They might – just – hold together but all Corbyn’s manoeuvrings would be shown to be solely for party advantage rather than the good of the country. It’s hard to see that being a viable strategy.

    3

    3 IS the ground being prepared for a

    (as do so many of their torn apart by the press ev

  • Andrew McCaig 17th Aug '19 - 10:25am

    There are many problems at the moment and few if any routes to a good outcome, unfortunately. I suspect that in practice the only hope may turn out to be the Corbyn-led temporary government designed only to prevent the Cummings threat of a No deal Brexit during an election campaign. When the only alternative is no deal I would suspect that all the Remainers including the Independents and Chukas will fall into line behind this, as Sarah Wollaston has suggested.

    However I wanted to comment on the Revoke option. Again it is unlikely that this will ever gain a majority in the current House. But it also sets a VERY dangerous precedent. As Paul points out is that we live in an elective dictatorship thanks to FPTP. This has not been changed in an significant way by the Fixed Term Parliament Act. At the moment the precedent is that leaving the EU can only be triggered by a referendum. If Parliament were to overturn that referendum decision made in 2016, the precedent would be set for Parliament to make decision s regarding EU membership, and the Remain victory would be entirely illusory. As soon as the electoral cycle delivered another Tory victory on 37% of the votes (almost certainly in the first election after anything as controversial as a Revoke decision) we would be out.

    If we want to be be EU members long term the only route is via another referendum. In extreme circumstances that could be Revoke with a commitment to a referendum within 6 months. But pure Revoke is a unicorn of extreme dimensions..

  • Summary “Revocation” by MPs seems even more unrealistic than a Government of National Unity led by Corbyn, a man who can’t even seem to agree with himself.
    There are no voices of national unity around. The only ones we, who are desperate for our nation to be brought back together, can hear are those who repudiate the Referendum, in totality, and exhibit real contempt and loathing for those who voted Leave and those who are determined to leave the EU, equally totally, no matter what the cost and consequences.

  • Tony Greaves 17th Aug '19 - 1:11pm

    Factual, sensible, and therefore unusual at the moment! Times like this show just how ignorant are many of the political commentators in the Bubble media who are just used to being spoonfed by the two traditional big parties. (For a non-Con example see Owen Jones’ trivial piece in today’s Guardian!)

    How soon could a referendum be held? It would have to be quick because an Interim Government would be doing little more than holding the fort and responding to emergencies. Second week in December? Paul’s view on this would be helpful.

    What no-one is thinking about amidst all the blather about personalities and Mr Corbyn is how an Interim Government would be set up, what would it look like, what would it have to do (and what could it do). And how long it would have to last. And what would the politics look like with Mr Johnson (presumably) as Leader of the Opposition.

  • Sue Sutherland 17th Aug '19 - 1:34pm

    Thank you for this clarification Paul Tyler. A couple of points. I don’t think Corbyn is reluctantly in the pocket of MacClusky. I think they have a shared aim.
    I thought that the EU had indicated they would extend article 50 if it was for a reasonable purpose like a second referendum but maybe that was wishful thinking. Revocation is a very attractive alternative to No Deal Brexit to me because I don’t wish to leave the EU. However, we are a party of democrats and we did lose the vote. If we want to go down the revocation route I believe we must explain how we would make life better for those who voted Leave in the belief that Britain would be stronger and their lives would get better.
    Farage says the argument is about democracy. I think we should take him up on it. This whole dreadful mess has been caused by a failure in democracy. A failure to protect the people against the drip drip drip of anti EU propaganda from the Press Barons, a failure to protect the people from the machinations of businesses who resented the EU for protecting workers’ rights, a failure to protect party politics from those using it for their own personal gain, a failure to have a voting system that reflects the number of votes cast for a party in the number of MPs elected and a failure in the constitution which allowed a Referendum to be called without proper controls so that it could be passed by a simple majority and be defined as both advisory and mandatory at the same time.

  • Surely it is possible that Mr Johnson could pre-empt any vote of no confidence by calling an election himself as soon as parliament returns. Of course he’d need Labour to support it. But since Mr Corbyn has, until recently, done nothing but call for an election, the two-thirds majority shouldn’t be a challenge.
    It may seem a kamikaze tactic for a party which came fifth in the last national election held, with just 10% of the vote, and shortly before that list nearly 1300 councillors in the local elections. But clearly Cons poll ratings have improved a bit since then, at expense of both Brexit party and Labour.
    If, even at this relatively early stage, Mr Johnson can set the election date for November, that shoots the Brexit party’s fox, for the no-deal Brexit will have been delivered.
    He might even have a deal with Brexit party, whereby they stand candidates only in 50 or so Cons seats held by “remainer” (or anti no-deal) MPs he’d like to purge from the party.
    As to the Lib Dem threat, he then has to ensure that the “remain” vote is split not only with Greens and Change / Indys, but also that a number of misguided remainers again vote for Labour as a “remain” party, so LibDems can’t reach the threshold to take Tory seats.

  • Paul Griffiths 17th Aug '19 - 7:29pm

    @ Paul Walker 7:17

    There are two problems with this suggestion.

    First, as I understand the ECJ ruling, a revocation followed too swiftly by another invocation would breach the “unequivocal and unconditional” provision (although this is disputed).

    Second, and far more important, do we really want to rush into this decision again? Would it not be better to pause, reflect, maybe hold some citizens’ juries or whatever and place the results before the pubic? In short, Brexit 2.0, but done properly this time.

  • John Peters 17th Aug '19 - 8:45pm

    “Is there anything to stop the UK revoking Article 50 by a simple email”

    Yes, the Gina Miller judgment on invoking Article 50 would mean parliament would also have to revoke.

  • Geoffrey Dron 17th Aug '19 - 9:09pm

    PG correct on ECJ ruling.

    Anyway, revocation without parliamentary approval based on GE or referendum is as bad as no deal without HoC sanctioning it.

    There’s no time for this.

  • John Marriott 17th Aug '19 - 10:03pm

    @Dilettante Eye
    “Social disobedience”, “Civil Disorder”? Surely that could equally happen in a No Deal worst case scenario? And you know who would get the blame? It begins with ‘E’ and ends with ‘U’.

    You know, such a scenario could actually satisfy two camps. On the one hand a Labour Party directed by Seumus Milne might actually be able to create out of a potential siege economy a socialist paradise or alternatively a buccaneering free trade Tory Party directed behind the scenes by Dominic Cummings would be empowered to “smash Corbyn” and create a low regulation North Sea Singapore. Welcome to the British version of Star Wars, where two ‘Evil Empires’ could fight it out while the rest of our economy, patiently built up courtesy of our membership of the EU over forty years not forgetting the majority of our citizens goes to the cleaners.

  • Richard Underhill 18th Aug '19 - 9:42am

    Dilettante Eye
    The poll tax was defeated democratically and peacefully.
    The Tories caused a by-election in Ribble Valley. The poll tax was a major issue (but not the only issue as Michael Carr said). John Major, Michael Heseltine and Chris Patten have all written about what happened. The council tax was introduced to replace the domestic rating system.

  • Jayne Mansfield 18th Aug '19 - 6:36pm

    I was under the impression that we do not have a codified constitution, we have constitutional conventions, some of which are deeply entrenched.

    I am not a lawyer but listening into the conversation so those who are, although not constitutional lawyers, those who offer clear cut answers are open to challenge.

    That is the problem and if and when we leave the EU, our uncodified arrangements will be an even bigger problem when politicians, ‘take back control’.

    I take with a pinch of salt those who confidently assert our constitution when so much is simply accepted constitutional convention.

  • Paul Bennett 18th Aug '19 - 9:21pm

    Paul (Tyler) is absolutely correct; the best option is revocation. The Conservative government under Cameron did everything arse-backwards; first should have come the negotiations with the 27, then the formulation of a route-map, then the referendum. Knowing what we now know, the result may well have been different, and invocation of A50 unnecessary.

    However, we are where we are; we must deal with the real world. Revocation is, in my view, the only foolproof way of stopping this madness. Once that has been accomplished, we can talk about Confidence Motions, Governments of National Sanity, General Elections, or anything else – including getting on with the normal business of government, recently much neglected.

    Whether there will be enough Parliamentary support for Revocation is another matter. “Orderly” Br*x*teers will, presumably, vote against, so it comes down to parliamentary arithmetic, and if it’s tight, who can persuade the Don’t Knows.

  • Peter Hirst 19th Aug '19 - 2:53pm

    If revocation is possible via a simple majority of voting MPs and is progressed there is still the need for a confirmatory referendum. We can have a General Election once revocation has happened or an extension confirmed by the European Council. However, I don’t think it would avoid the need for a second vote.

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