The shamelessly   anti-democratic remainers are queuing up to cheat the British electorate of Brexit. Those in the media and the likes of Gina Miller  shriek that a hard Brexit is dead and it is already  reported that remainer MPs from both the Tory and Labour parties are plotting to overturn  Brexit and Theresa May knows about it but does nothing. May’s Chancellor Philip Hammond openly defies her on Brexit by saying that no deal with the EU would be a “very bad outcome”.

In Scotland, the SNP leader Nicola Sturgeon beats the same drum and the leader of the Tories in Scotland, Ruth Davidson talks of legally detaching the Scottish Conservatives  from  the UK  Party whilst  insisting that a hard Brexit should be watered down and stating baldly that  the  13 MPs from Scotland who are now sitting in the Commons should vote according to their consciences not to the dictates of Tory Party whip.

There is also another possible legal challenge brewing with a claim that the Act passed to allow the letter to be sent to the EU triggering Article 50 did not such thing because it did not  address the question of the legality of the UK leaving the EU.

More immediately worrying is the proposed supply and confidence arrangement   with the Democratic Unionists (DUP)  of Northern Ireland  and the  concessions the  DUP will insist on and the knock-on effects with Scotland and Wales which will undoubtedly want  for themselves  whatever  the DUP gets or something of similar political value.   The terms of the arrangement have yet to be agreed, but we can be sure that the DUP will insist on not having a hard border between Northern Ireland and the Republic of Ireland . Anything other than a hard border would utterly undermine one of the primary objects of Brexit, namely, control of the UK’s borders.  Nor is it certain that any deal will be made.

All in all a very pretty political mess with no risk free way of escaping.  Calling another election soon would probably   result in a Labour win or at least a Labour led coalition government.  At best it is unlikely that it would leave the Tories in a better position than they are in.  Moreover, the Fixed Term Parliaments Act is still in place. To call an election before the end of the five year Parliament stipulated in the Act requires a two-thirds majority of   the  full complement of MPs  (currently 650) whether  or not a constituency has an MP at the time of voting or whether an MP abstains. In short at least 417 MPs must vote for an election.   There is a good chance that neither  the Parties with seats  in the Commons nor many individual MPs with smallish majorities would want another election soon: the Parties because of the cost (if an election was held this year it would mean  funding three elections in two years) and   individual MPs for  the fear of losing their seats.

There is one way the Tories might be able to cut this Gordian knot; because they are so close to a majority in the Commons, the Government is in a much stronger position than might be thought from the media and general political response following the failure of May to gain a majority.  May or a successor could try governing without a majority.

The number of MPs needed for a Commons majority is pedantically 326. But this is misleading because the seven Sinn Fein MPs will not take their seats as a matter of principle (they refuse to swear an oath of allegiance to the Crown) and the Speaker only votes in the event of a tie (when by convention he votes for the status quo). Hence, the figure in practice for a Commons majority is  322. This means the Tories area mere 4 MPs short of a majority.

The Tories could probably govern as a minority government without any support most of the time, because any defeat of  government legislation would require almost every non-Tory MP  to vote against the government. That is not easy to organise day in day out, week in week out.  Moreover, it is most unlikely that MPs from Scotland, Wales and Northern Ireland would want to hold up many of the  money Bills because that would mean their countries  would not get their  part of the money .  In addition, it is likely that the DUP would support the Tories on most occasions simply because they agreed with Tory policies and for the fear of something worse, that is, a Corbyn government. .

The main danger for the Tories  would be a  vote for a motion of No Confidence.  But it would not be easy to marshal the disparate MPs who make up the opposition.  It is possible that some Tories might abstain or even vote against on individual Tory policies ,but improbable  that they would vote for a motion of No Confidence.

It is conceivable that a few Tory remainers might cross the floor of the House of Commons and join a Corbyn government. This idea is unlikely  but  not absurd because Brexit is one of those rare defining issues which could cause remainer  Tory MPs to defect.  More probable would be Tory remainers being willing to vote on Bills put forward by a Corbyn government which relate to Brexit.

But let us assume that a motion of No Confidence was passed, what then?  Could Corbyn form a government with a majority? He might well struggle because he would have to take all the Ulster Unionist MPs with him. Given Corbyn’s record of enthusiastically consorting with Irish Republicans of dubious provenance it is unlikely he would be able to bring them on board even on the basis of confidence and supply. But even if he could cobble together a government of all MPs other than Tory ones, it would be hopelessly unstable because of the vast spread of political opinions it would have to encompass and the fact that the Labour Party is nowhere near to being able to form a government on its own.   The proposed hook-up between the Tories and the DUP has a much better chance of surviving.

It is possible that no government could be formed which could command the confidence of the Commons. That would create an interesting constitutional problem because the Fixed Term Parliaments Act would mean that Parliament could not be dissolved unless two thirds of the Commons voted for it. That would mean that any new election could not be painted as the responsibility of the Tory Party as many MPs other than Tory ones would have to vote for it. That would remove part of the toxicity of an early election for the Tories.

If May (or a Tory successor) could get through another 18  months in power that might be enough for the public to turn against Corbyn and/or simply get bored with his antics and those of the likes of McDonnell. It would also allow enough to time get the negotiations for Brexit so well entrenched that it would be difficult to overturn them even if a different government took office. The fly in the ointment is of course the likely attempts at betrayal by the present Government or any successor government headed by a Tory other than Theresa May.

If the Tory government does survive it must operate for the foreseeable political future on the basis that Brexit comes before everything else apart from maintaining the functions of the state and civil order. Any legislation in policy areas other than Brexit which is contentious should be shelved until Brexit is completed.

There must also be red lines drawn. One of the primary problems with May was her refusal or inability to spell out what she would and would not accept when negotiating with the EU. The government whether led by May or someone else must make clear the following:

  • That there is no hard and soft Brexit there is simply Brexit
  • That the UK will leave the single  market.
  • That the UK will leave the customs union .
  • That the UK will have full control over her borders for people, goods and services.
  • That the UK will have full control of her territorial waters including those relating to the 200 mile limit.
  • That after leaving the UK will not be subject to the European Court of Justice or any other judicial body  linked to the EU or the EEA.
  • That the UK will not pay any leaving fee.
  • That the UK will be paid a proportionate share of the EU’s assets.

That would both reassure the majority who voted of Brexit and make any backsliding by the government very difficult.

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