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How Brexit is breaking the British constitution

Leavers are targeting all those deemed ideologically impure: MPs, the judiciary and the civil service.

In 1945, after Winston Churchill proposed holding a referendum on the extension of the wartime coalition, his then deputy, Clement Attlee, replied: "I could not consent to the introduction into our national life of a device so alien to all our traditions." The Labour leader feared that such an act would subvert the UK’s delicate, unwritten constitution.

Two referendums - on the European Economic Community in 1975 and on AV in 2011 - would eventually follow. But the EU vote on 23 June 2016 was the first that did not affirm the status quo. As Attlee warned, this act of direct democracy is upending once cherished traditions.

For decades, eurosceptics revered the UK's unwritten constitution: its sovereign parliament, its independent judiciary, its neutral civil service. But an alternative centre of power - the people - has now been established. Rather than their loyalty to the constitution, institutions are now judged according to their loyalty to the demos (nearly half of whom voted to Remain).

Brexiteers hailed the resignation of EU ambassador Ivan Rogers, one of the UK's few European experts, on the grounds that he was insufficiently pro-Leave. "No organisation has done more to give away our democratic rights than the Foriegn Office," declared Nigel Farage. "They've been doing it for decades and I very much hope that Sir Ivan is the first of many to go."

There is no evidence that Rogers was seeking to block Brexit. Rather, he warned that it could take 10 years to finalise a UK-EU trade deal (a view echoed by other experts). It is not, after all, in Britain's gift to determine how long the negotiations take. That depends on 27 others (all the more reason, perhaps, to value someone who understands them). But Roger's successor will seemingly be valued for ideological purity, rather than expertise. Ministers, including Boris Johnson, are reported to believe that the next ambassador must be someone who backs Brexit "wholeheartedly". A government source tells the Telegraph that Theresa May wants the next ambassador to be someone with the "same attitude [to Brexit] as the current government."

Yet as Rogers notes in his leaked email to Foreign Office staff: "The great strength of the UK system - at least as it has been perceived by all others in the EU - has always been its unique combination of policy depth, expertise and coherence, message coordination and discipline, and the ability to negotiate with skill and determination. UKRep has always been key to all of that. We shall need it more than ever in the years ahead."

The Brexiteers' Bennite-esque dismissal of the "neutral" civil service is of a piece with their attitude towards parliament and the judiciary. When the High Court ruled that MPs must vote on the triggering of Article 50, its judges were branded "enemies of the people". The Ukip leadership candidate Suzanne Evans suggested that they should be "subject to some kind of democratic control". Communities Secretary Sajid Javid warned of "an attempt to frustrate the will of the British people".

The elected Commons is no more respected. There is only one parliament that is currently guaranteed a say on the final Brexit deal - and it is not the British one. Brussels' much-maligned MEPs, unlike MPs, are assured a vote.

Like past revolutionaires, the Brexiteers are seeking to remake national institutions in their own image. But as they contend with the biggest task facing any government since 1945, they may yet regret their dismissal of accumulated wisdom.

George Eaton is political editor of the New Statesman.

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Hopes of an anti-Brexit party are illusory, but Remainers have a new plan to stay in the EU

Stopping Brexit may prove an impossible task. Remainers are looking to the "Article 49 strategy": reapplying for EU membership. 

The Remain campaign lost in the country, but it won by a landslide in parliament. On 23 June 2016, more than two-thirds of MPs voted for EU membership. Ever since the referendum, the possibility that parliament could thwart withdrawal, or at least soften it, has loomed.

Theresa May called an early general election in the hope of securing a majority large enough to neutralise revanchist Remainers. When she was denied a mandate, many proclaimed that “hard Brexit” had been defeated. Yet two months after the Conservatives’ electoral humbling, it appears, as May once remarked, that “nothing has changed”. The government remains committed not merely to leaving the EU but to leaving the single market and the customs union. Even a promise to mimic the arrangements of the customs union during a transition period is consistent with May’s pre-election Lancaster House speech.

EU supporters once drew consolation from the disunity of their opponents. While Leavers have united around several defining aims, however, the Remainers are split. Those who campaigned reluctantly for EU membership, such as May and Jeremy Corbyn, have become de facto Brexiteers. Others are demanding a “soft Brexit” – defined as continued single market membership – or at least a soft transition.

Still more propose a second referendum, perhaps championed by a new centrist party (“the Democrats” is the name suggested by James Chapman, an energetic former aide to George Osborne and the Brexit Secretary, David Davis). Others predict that an economic cataclysm will force the government to rethink.

Faced with this increasingly bewildering menu of options, the average voter still chooses Brexit as their main course. Though Leave’s referendum victory was narrow (52-48), its support base has since widened. Polling has consistently shown that around two-thirds of voters believe that the UK has a duty to leave the EU, regardless of their original preference.

A majority of Remain supporters, as a recent London School of Economics study confirmed, favour greater controls over EU immigration. The opposition of a significant number of Labour and Tory MPs to “soft Brexit” largely rests on this.

Remainers usually retort – as the Chancellor, Philip Hammond, put it – “No one voted to become poorer.” Polls show that, as well as immigration control, voters want to retain the economic benefits of EU membership. The problem is not merely that some politicians wish to have their cake and eat it, but that most of the public does, too.

For Remainers, the imperative now is to avoid an economic catastrophe. This begins by preventing a “cliff-edge” Brexit, under which the UK crashes out on 29 March 2019 without a deal. Though the Leave vote did not trigger a swift recession, a reversion to World Trade Organisation trading terms almost certainly would. Although David Davis publicly maintains that a new EU trade deal could swiftly be agreed, he is said to have privately forecast a time span of five years (the 2016 EU-Canada agreement took seven). A transition period of three years – concluded in time for the 2022 general election – would leave the UK with two further years in the wilderness without a deal.

A coalition of Labour MPs who dislike free movement and those who dislike free markets has prevented the party endorsing “soft Brexit”. Yet the Remainers in the party, backed by 80 per cent of grass-roots members, are encouraged by a recent shift in the leadership’s position. Although Corbyn, a Bennite Eurosceptic, vowed that the UK would leave the single market, the shadow Brexit secretary, Keir Starmer, and the shadow chancellor, John McDonnell, have refused to rule out continued membership.

A group of Remainers from all parties met in the Labour MP Chuka Umunna’s office before recess, and they are hopeful that parliament will force the government to commit to a meaningful transition period, including single market membership. But they have no intention of dissolving tribal loyalties and uniting under one banner. A year after George Osborne first pitched the idea of a new party to Labour MPs, it has gained little traction. “All it would do is weaken Labour,” the former cabinet minister Andrew Adonis, a past Social Democratic Party member, told me. “The only way we can defeat hard Brexit is to have a strong Labour Party.”

In this febrile era, few Remainers dismiss the possibility of a second referendum. Yet most are wary of running ahead of public opinion. “It would simply be too risky,” a senior Labour MP told me, citing one definition of insanity: doing the same thing and expecting a different result.

Thoughtful Remainers, however, are discussing an alternative strategy. Rather than staging a premature referendum in 2018-19, they advocate waiting until the UK has concluded a trade deal with the EU. At this point, voters would be offered a choice between the new agreement and re-entry under Article 49 of the Lisbon Treaty. By the mid-2020s, Remainers calculate, the risks of Brexit will be clearer and the original referendum will be history. The proviso is that the EU would have to allow the UK re-entry on its existing membership terms, rather than the standard ones (ending its opt-outs from the euro and the border-free Schengen Area). Some MPs suggest agreeing a ten-year “grace period” in which Britain can achieve this deal – a formidable challenge, but not an impossible one.

First, though, the Remainers must secure a soft transition. If the UK rips itself from the EU’s institutions in 2019, there will be no life raft back to safe territory. The initial aim is one of damage limitation. But like the Leavers before them, the wise Remainers are playing a long game.

George Eaton is political editor of the New Statesman.

This article first appeared in the 17 August 2017 issue of the New Statesman, Trump goes nuclear