How to Win the Brexit Endgame: Further Advice to the Government

Earlier this month, I advised the Government to cut through our political deadlock by using the Civil Contingencies Act to declare a state of emergency, and then to use the powers available to call an election. The Government ignored my advice, choosing instead to press forward with a prorogation. Its enemies, however, have noticed my advice – or realised this for themselves – and are now worried in public about what the Government will do next. Keir Starmer, for example, fears the Civil Contingencies Act will be used to avoid the terms of the Surrender Act that forces the Prime Minister to ask for yet another extension to our membership of the European Union. Though I said a few days ago that I had no more to give, the Labour Party has inspired me to think of more advice. Here it goes.

1. The Government should ask Parliament one last time for an early general election. It should promise in exchange to get an extension of our membership to the end of January 2020. I know the Prime Minister said he would rather be dead in a ditch before asking for this. But he can argue that the opposition parties have collaborated with the French Government to make his promise impossible to deliver. His formal offer of a trade would not be unreasonable. If the Conservatives win, they can get on with negotiating our exit without a knife at their backs. If the opposition parties win well enough to throw a coalition together, they will have time to revoke our notice of leaving, and keep us in the great happy family that is the European Union. An election now, in exchange for a revised leaving date in January, would not be unreasonable for breaking the deadlock.
2. If the opposition parties find some excuse for not allowing an election, then, and only then, should the Government invoke the Civil Contingencies Act 2004. It should not waste this on getting round the Surrender Act. It should instead call a general election. I said a few days ago that any use of emergency powers would be struck down at once by our politicised Supreme Court. I am no longer so sure. The Court may have been scared by the outrage that greeted its last judgment. In any event, there are grounds for believing that we are drifting into civil disorder, and that only an election with some chance of a clear outcome will stop this. Needless to say, the Government should get its lawyers to put up a better argument in court than they did last week, and it should clearly explain its actions to the people.
3. In any election before we have left, the parties will need to explain where they stand on leaving the European Union. The Liberal Democrats have said they would cancel our departure. Labour has said it would negotiate its own deal, and then campaign against it in another fixed referendum. These may be absurd or disreputable positions. But we at least know what they are. The Conservatives will need to explain where they stand. They have been rather shy about this. But they need something that will stand up to hostile questioning in a television studio. My own preferred leaving deal would involve rejoining EFTA and staying in the Single Market. The Government’s most likely aim is to try pushing through Theresa May’s Withdrawal Agreement with a neutered backstop. Neither of these is ideal. The first strikes me at the best among imperfect outcomes. The second would probably do, so long as we were able to walk away after a year or so. But the Government needs to have a policy it can sell to the electors. It should still insist on No-Deal if nothing else can be negotiated – though this is not a favoured outcome with the electors, and should be kept open as a bargaining counter.
4. The Brexit Party needs to be neutered. I suspect that any election this year would be a binary choice between some Brexit and none, and that the Conservatives would pick up virtually the whole of the Brexit Party vote. It would still be useful if Nigel Farage could be persuaded not to run candidates – or not too many candidates in seats targeted by the Conservatives. How to do this is beyond me. I might, however, suggest offering him a peerage. That would turn my head. It might turn his.

The Government and Brexit are now approaching a final crisis. It has almost the entire Establishment lined up against, and only the people on its side. To win though, it needs to use every legal and political device available to it. The Civil Contingencies Act is a bad law, and the Conservatives should promise in their manifesto to replace it with something less frightening. But it exists at the moment. It must be used to serve one necessary purpose, and then cast aside so no future government can use it for less noble purposes.

Above all, if the Government is to use it, the Act should be used as a knock-out blow to the Remainer Parliament. Prorogation had the same effect as pushing a stick into a wasps’ nest. Suspending the Surrender Act would be the same. If the Government must now gamble, let the stakes be the highest available. Let me quote from Moloch’s Speech in Book II of Paradise Lost:

My sentence is for open Warr: Of Wiles,
More unexpert, I boast not: them let those
Contrive who need, or when they need, not now.
For while they sit contriving, shall the rest,
Millions that stand in Arms, and longing wait
The Signal to ascend, sit lingring here
Heav’ns fugitives, and for thir dwelling place
Accept this dark opprobrious Den of shame,
The Prison of his Tyranny who Reigns
By our delay? no, let us rather choose
Arm’d with Hell flames and fury all at once
O’re Heav’ns high Towrs to force resistless way,
Turning our Tortures into horrid Arms
Against the Torturer…

Just get it over and done with.