Party first, country second.
As a Tory tribalist, May’s priority was to prevent a party split, while locating herself on the party spectrum as a soft Remainer with her prime sympathies going to the majority Remainer MPs. This was evident in the composition of her Cabinet: the majority were Remainers, while the three Brexiteer ministers were provided with Potemkin village jobs -Johnson as Foreign Secretary, a job that would keep him out of the country, and hence out of mischief; David Davis as “Brexit Secretary”, but flanked by the high flyer and pro-federal Europe senior civil servant, Olly Robbins, who reported to May; and Liam Fox as International Trade Secretary, without any powers to negotiate trade deals until the UK left the EU-if ever. The whole process, May hoped, would be managed via use of the royal prerogative. Powers ceded over the decades to the EU would be repatriated, and distributed around the devolved administrations by executive fiat, much as the executive had proceeded in governing the country over the past forty three years.
That proved to be the first hitch. In June, Gina Miller, a pro-Remain business person, funded a case challenging the authority of the British government to use prerogative powers without consulting parliament. In November, the High Court ruled that according to the UK Constitution-the High Court explicitly mentioned the Glorious Revolution of 1688/89-parliament had to legislate before the government could invoke Article 50. In January, 2017, the Supreme Court upheld the High Court ruling. Having announced her intent to invoke the withdrawal process at her speech to the Tory party conference in October 2016, May triggered the Article on March 29, 2017, complete with promises to submit her final “deal” to a “meaningful vote”. She did so, it is alleged, without a clear strategy of what Brexit would look like. This assumes she was not aware of what the EU’s negotiating position was. If that is the case, then she was delinquent; it is equally possible to argue that she knew very well what the EU’s position was, but was exploring how to bring the Tory party, without splits, to a position where the party and the EU27 could agree. Her later conduct indicates that she feared, but never contemplated implementing her promise that “ no deal was better than a bad deal”.
May’s political trajectory: from Prime Minister to EU Governor.
May’s political trajectory over the two and a half years from her taking office in July 2016 to presenting the Withdrawal Agreement Bill (WAB) in November 2018 may be traced through her five major speeches: her October 2016 speech at the Tory party conference; her January 2017 Lancaster House speech; her September 2017 speech at Florence; and her Mansion House speech of March 2018. She started out with the elliptical slogan that “Brexit means Brexit”, and ended with a draft Treaty which her opponents dubbed “Brexit-in-name-only”, and Leavers categorically described as a surrender document. 
The main event along this trajectory was May’s decision to seek an election on June 8, 2017. Her reasons for doing so were not difficult to assess:
- The negotiations were shaping up to be tough; the outlines of the EU’s mandate were clear-negotiate first the divorce, then the future relationship;
- May needed maximum flexibility to be able to ditch the arch-Leaver faction. Her bed-rock support would be in the Remain coalition in Whitehall, the media or business, and especially in the parliamentary party.
- the opportunity to win a landslide parliamentary victory seemed to present itself in view of the unpopularity of Jeremy Corbyn, and his anti-western, Marxist supporters.
- A half-in, half-out of the EU future for Britain would be the minimum condition needed to avoid a further bid by the Scottish Nationalists for independence; a large majority in parliament would facilitate a settlement of the Irish border issue.
In other words, a large parliamentary majority would enable May to ditch the Unionists in Northern Ireland, opening the prospect of a special status for Scotland. Through Northern Ireland and Scotland, England and Wales could be hitched as close as possible to the EU. Brexit would be in name only.
May started the campaign with a huge lead, which soon melted in the light of her wooden performances. She lost the majority inherited from Cameron and thereby forfeited all flexibility. On Irish issues, she would depend on the support of the Ulster Unionists; on the content of the withdrawal agreement, she would have to placate the arch-Leavers and keep the Remainer majority sweet. The only way to do this was through words in speeches. “Brussels”-well informed by Remainers of the minutiae of Westminster politics- determined to hang tough. Along the way, the words moved ever closer to the Brussels script. From starting out as Prime Minister of the UK, May ended as the EU’s Governor in London, insisting-as did the EU27-that this was the only deal on the table. Parliament, it was implied, had to sign along the dotted line.
The options May did not take.
May inherited a difficult situation in June 2016; that situation became dire following the June 2017 general election results. There are two broad interpretations of her approach to the negotiations: one holds that May was out of her depth; the other holds that the EU held all the cards. Which was it? Incompetence or doing her best from a position of weakness? To assess whether it was one or the other, or even some alternative explanation, I ask the question about the options she did not take.
There were essentially two options she did not take, and her decisions all flowed from her definition of the challenge: the result of the referendum, she insisted, was a mandate; the outcome had to be a deep, close and special relationship with the EU; and Leave had won largely because of growing opposition to mass immigration. This series of definitions had the following consequences: Remain was off the cards (an unexamined hypothesis) ; the adjectives “deep, close and special” suggested to the EU27 that the UK was “cherry-picking”; control over immigration would infringe the EU’s four freedoms, if the UK were to stay in the single market.
From the start, May disregarded cardinal rules of diplomacy: keep all options open as long as possible; start with a simple and smart suggestion, because if you start with a host of contradictory requirements, you end mired in complexity and details, as evidenced in the 585 pages of the WAB; determine where your efforts may be deployed with the least hassle and optimum results.
Instead, her public suggestions, designed to placate Tory party factions, closed options; started her on the process with a host of contradictory requirements; and she dismissed the simple solutions such as membership in the EEA, or a free trade agreement along the lines of the EU-Canada trade arrangement. The two major options she did not take are: defining the result of the June 23 2016 referendum as at root constitutional; rejection of more readily negotiated exits, such as an EEA or Canada-EU type formula.
At root, Brexit was about the constitution.
The first option May did not take is not to define the problem of the UK’s relationship with the EU as rooted in matters constitutional. She mentioned these in her speech of October 2016 to the Tory faithful. This is what she said:
“We are leaving to become, once more, a fully sovereign and independent country.” Her government would trigger Article 50, “no later than March 2017;A Great Repeal Bill to get rid of the European Communities Act – introduced in the next Parliamentary session. Our laws made not in Brussels but in Westminster. Our judges sitting not in Luxembourg but in courts across the land. The authority of EU law in this country ended forever. The people told us they wanted these things – and this Conservative Government is going to deliver them.”
In her Lancaster House speech of January 2017, she stated, that “our political traditions are different. Unlike other European countries, we have no written constitution, but the principle of parliamentary sovereignty is the basis of our unwritten constitutional settlement”. Aside from the fact that it is not strictly true that the UK has no written constitution, and that the principle of the Crown in parliament as sovereign is a more accurate description, May correctly isolated the major difference between the UK, and the EU27. Why is it she did not build her strategy on this bedrock?
The first reason is that the Tory party is the party that brought the UK into the EEC in 1972. It did so to recuperate the position it considered that the UK had lost in 1958 by failing to sign up to the Rome Treaty. Since MacMillan, the party had bought into the idea of “pooling sovereignty” in order to exercise more joint influence over its own affairs. In the 1972 European Communities Act, Section 2 had underwritten the primacy of EEC/EU law over the sovereignty of the Crown in parliament. Many people in the UK agreed with John Locke, the bard of the 1689 Glorious Revolution, that it was never in the power of the Crown in parliament to do what it didi because ultimate authority rested with the electorate. But now, May affirmed in the light of the referendum result, the Tory government would make amends. The UK would again become a sovereign country.
Second, she promised to get rid of the European Communities Act in the next parliamentary session, not in the ongoing session when it was most needed. It was most needed immediately before negotiations formally opened with the EU27. As Article 50.1 states: “Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements”. May decided to negotiate with the EU27 while 1972 ECA Section 2.1. was still on the books. As the UK parliamentary website states, “Section 2(1) means that provisions of EU law that are directly applicable or have direct effect, such as EU Regulations or certain articles of the EU Treaties, are automatically “without further enactment” incorporated and binding in national law without the need for a further Act of Parliament.” Because Article 50.2 states that “in the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”, May was negotiating Brexit in the knowledge that 1972 ECA Section 2 stated that EU law trumped UK law. She was not saying so, but then her words were not directed to the EU27; they were directed to her party.
Negotiating the UK’s withdrawal from the EU under Article 50, and with ECA 1972 still on the books, meant recognizing that the EU’s negotiating mandate would determine the outcome, and from the very start. Sir Martin Jacomb, in a letter of May 13, 2019, and printed in the Daily Telegraph, stated correctly that “Article 50 provides for a negotiated exit, but it gives all negotiating power to the continuing EU. The idea that we, the exiting nation, can demand reasonable terms is misplaced. It is either the EU’s terms or a non-negotiated exit”. There was no effort by the May government to repeal the 1972 Act’s consecration in EU law of the EU’s supranationality. May chose to negotiate exit under conditions defined by her predecessor Edward Heath. There was no attempt at all to ensure that the negotiations were between equals: the negotiations were, and May subscribed to this, between an imperial power and a rebellious province. Because the Lisbon Treaty was the UK’s constitution, EU law was always a tool solely at the disposal of the EU27.
May rejects Brexit-lite formulae.
It would have been reasonable for May’s government, after the loss of their majority in the June 2017 general election, to opt for some Brexit-lite formula. Such an approach would have the benefit of reflecting the 52/48 margin of the June 2016 referendum, giving something to all, but denying complete victory to either side. Given the fact of her minority government, and its vulnerability to blackmail by the Tory hard Remain or hard Leave wings, she would have had to be imaginative in offering palliatives. But she opted not to do so. This is what she said in her Florence speech of September 2017, when insiders were already reporting that the negotiations were heading straight into a brick wall.
“I do not believe either of these options (EEA membership, or an EU-Canada type deal) would be best for the UK or best for the European Union.” “ European Economic Area membership would mean the UK having to adopt at home – automatically and in their entirety – new EU rules. Rules over which, in future, we will have little influence and no vote. Such a loss of democratic control could not work for the British people. I fear it would inevitably lead to friction and then a damaging re-opening of the nature of our relationship in the near future: the very last thing that anyone on either side of the Channel wants.”“As for a Canadian style free trade agreement, we should recognise that this is the most advanced free trade agreement the EU has yet concluded and a breakthrough in trade between Canada and the EU.”
Two points are worth making here.
First, May grossly understates the benefits of membership of the EEA-set up in 1994 to extend the EU’s single market to Iceland, Liechtenstein and Norway. True, the EEA means that single market legislation applies throughout the whole of the 31 EEA states; that the four freedoms be respected, and that competition and state aid rules of the EU be followed. Against that, non-EU members of the EEA participate in EU joint research and education programmes; the UK as an EEA member would recuperate control over agriculture and fisheries; non-EU members of the EEA can conclude trade deals with third parties; they do not have to subscribe to the EU’s foreign and security policy, to their justice and home affairs measures or to harmonisation of taxation or participation in the monetary union; their financial contributions are minimal compared to the UK’s as a full EU member; not least EEA membership leaves open the option of the UK being in the customs union.
A Canada-EU style trade deal could operate as a template for the UK’s trading relationship with the EU post-Brexit. Some 98% of all tariffs on goods traded between Canada and the EU are duty free. Public contracts are opened to tender from companies from either signatory. Intellectual property rights are protected; the EU and Canada co-operate on standards; professional qualifacations are mutually recognised. The two parties are free to do trade deals with third countries. It does little for trade in financial services that is not already covered by WTO rules. The accord does not do away with border controls, but it does sanction electronic surveillance methods.
Second, why does May reject either of these options? After all, they are achieved with much less effort, much less market disruption, and without any major challenge to business expectations. They of course do not satisfy Whitehall’s appetite for prestige-but then the hard-nosed position is that you cannot eat prestige.
In her Florence speech, she stated that “..compared with what exists between Britain and the EU today, it would nevertheless represent such a restriction on our mutual market access that it would benefit neither of our economies”. If May were to follow through on the logic of this statement, she would have to conclude that no option is better than Remaining. But she does not; she goes on to affirm that “I am optimistic about what we can achieve by finding a creative solution to a new economic relationship”- a new economic relationship which the EU27 consistently declared they were not discussing until the divorce terms had been agreed. The EU27 called this ‘having your cake and eating it”. Another way of expressing it would be to say that May is so determined to bridge the gap between her party’s three factions, that the only way to reconcile them is for her lead them upwards, Pied Piper-like, to Lalaland.
To summarise: we may conclude that May, and May’s advisers, knew from the start that the way the negotiations were set up, all the cards were in the EU’s hands. She could have done otherwise, followed the terms of Article 50.1, and insisted that the UK negotiate as an equal, not as a province. She did not. She accepted the EU sequencing of negotiations. She rejected easier-to-achieve Brexit-lite formulae on specious grounds. Brexit-lite formulae would have served well; bought time for the UK and the EU to work out their own paths ahead; and placed the longer term matter of the UK-EU relationship comfortably in the future, to be decided either way. This could have greatly defused tensions between Remainers and Leavers across the length and breadth of the UK; and it would have eased relations between London and the EU27.
But as May intimated, Brexit-lite did not meet the Remain preference of Whitehall-in- Brussels, nor of the Tory Remainer majority. Negotiating as a province did meet the preferences of Brussels-in-Whitehall. Lord Kerr, who claimed authorship of Article 50, as Giscard’s factotum during the 2002-2004 Convention of a European Constitution, was reported as saying that the UK would be brought to heal.
A litany of May’s concessions.
Over the negotiations, May always remained ambiguous, until the very last when Barnier metaphorically thumped the table, and the EU 27 said to a Remainer leaning Prime Minister and Commons that it was take it, leave it, or repeal Article 50. That was May’s prime error. The referendum result of June 2016 allowed for no ambiguity. The vote was about the crucial matter of who governs the United Kingdom. Over 48% answered that the UK should continue to pool its sovereignty with other member states, and co-manage common policies with its partners. About 52% voted Leave, and in favour of self-government, in particular that UK voters should be able to sanction their lawmakers through the ballot box. They could not do so as member of the EU.
In her first two speeches-the October 2016 speech to Tory party conference, and her Lancaster House speech of January 2017, May had her prepared speeches larded with red meat for Leavers. The UK was taking back sovereignty; “Brexit means Brexit”; “control of immigration”; “no deal is better than a bad deal”. But this was offset by red-meat to Remainers: “we will seek to avoid a disruptive cliff-edge, and we will do everything we can to phase in the new arrangements we require as Britain and the EU move towards our new partnership.” It would not have been difficult for Barnier , Selmayr and Weyand, Barnier’s details guru, to discern flannel when they heard it.
One of the major demands of the Leave campaign was that the UK should not be bound by the EU’s formal exit procedure. As Michael Gove and Boris Johnson argued during the campaign, “We will negotiate the terms of a new deal before we start any legal process to leave”. That path was closed by the EU27 refusal to talk before the Article 50 process was triggered; from the start the Commission had the process inverted: negotiate the divorce terms first then we’ll discuss the future relationship. As former Greek Finance Minister Yanis Varoufakis notes, this was in effect a declaration of war by the EU establishment on the UK. We will have a two phase negotiation, they said: you give everything we want in the first phase, and then we’ll discuss what you want in the second phase. May could have said no, we’ll have a simultaneous negotiation, and nothing will be agreed until everything is agreed. But May yielded to the EU’s demands: as a result, there was no reason for the EU, having received in advance what it wanted, to yield anything in the second phase.
Why then did May concede this exorbitant demand? There was nothing in the wording of Article 50 that suggested such a structure for the negotiations. Article 50, as we have seen, stated that the country leaving the EU could do so through its own constitutional arrangements. Johnson was in the Cabinet as Foreign Secretary, so the same advice would have been available. May in the early stages before the general election of June 2017 was talking tough, at least some of the time. Yet May caved to Barnier’s demand on the sequencing of the negotiations. This decision chimes with her preference, that of the majority of the Cabinet and most Tory MPs for Remain; with her acquiescence in negotiating under the terms of the 1972 Act whereby EEC/EU law trumps UK law; with the advice coming from Nick Timothy, whom she brought to 10 Downing Street from the Home Office to do her thinking for her; and from her habit of kissing her EU counterparts whenever in Brussels, despite their determination to shaft the UK. The simple conclusion is that her yielding on the EU’s demand is of one with her negotiating not as Prime Minister of an independent country, but as the chief officer of a local council.
May regularly appealed to what she hoped would be the EU’s better instincts. Her assumption was that they would come round to appreciate the mutual interest in reaching a deal satisfactory to all parties. She regularly stated that it was in the UK’s national interest that the EU should succeed. She never bothered to explore whether this was a reasonable statement; definitely, it did not chime with the constant refrain coming out of Berlin or Paris that Realpolitik was alive and well in Whitehall and that the UK was back to its old habits of divide and conquer. She did recognize that Realpolitik was alive and well in Berlin, Paris and Brussels, though: “I know that there are some voices calling for a punitive deal that punishes Britain and discourages other countries from taking the same path. That would be an act, she opined, of calamitous self-harm for the countries of Europe. And it would not be the act of a friend. Britain would not- and indeed could not(here she was 100% correct) accept such an approach”. But she eventually did.
In a similar vein, she stated in her Florence speech that the UK was unconditionally committed to maintaining Europe’s security. “We will also want to continue working together in ways that promote the long-term economic development of our continent. This includes continuing to take part in those specific programmes which are greatly to the UK and the EU’s joint advantage, such as those that promote science, education and culture-and those that promote our mutual security”. Using the UK’s defence capability as a ‘bargaining chip” in the negotiations with the EU was par for the course.. The precedent for such a “bargaining chip” approach to negotiating in the EU was Heath’s deciding to wind down the UK’s fishing industry to the benefit of Basque, French, Dutch and Danish fishing fleets. As in the case of fishing, the EU27 pocketed the commitment, but during the negotiations, the UK was told it could not participate in EU programmes; it would no longer be a member of Galileo, the EU’s Global Navigation Satellite System, which the UK had done much to finance and set up; it could not participate in command of EU forces. Article 8 of the Withdrawal treaty stated baldly: “at the end of the transition period the United Kingdom shall cease to be entitled to access any network, any information system and any database established on the basis of Union law”.
May made a host of other concessions. She started the negotiations withholding monies that Barnier considered the EU’s due. The figures ran as high as E100 billion Euros. May eventually buckled, but the EU has not settled officially on a figure: the figure of E39 billion is a UK figure. She stated initially that the UK would no longer be subject to the ECJ: but in the discussions on citizens rights, the EU insisted that the rights of EU citizens had been acquired under EU law, and therefore the ECJ would in future be responsible for enforcing them. Likewise, May sought to insist that a dispute settlement mechanism that would be supervised by either side’s judicial authorities would not be fair: but the dispute settlement mechanism outlined in the Withdrawal Treaty makes quite clear that the ECJ is the ultimate court of appeal. Likewise May stated that the UK would withdraw from the Single Market and the Customs Union, while proposing a free trade arrangement that looked very much like the Single Market and “a” customs union, rather than “the” customs union. No-one was hood-winked, least of all President Trump who stated that if the UK accepted the EU’s terms, it would not be free to reach a trade agreement with the US.
To summarise, May seeks to sell her “deal” as the best for the UK. It is obviously not the best for the UK. The Treaty treats the UK as a province-and justifiably so, given the 1972 definition of EU law as trumping UK law. The great Repeal Bill has been enacted. But May has gone back on her statement that “no deal is better than a bad deal”. It is more than reasonable to assume that she never meant it. Much easier deals were available along the lines of EEA membership or the EU- Canada trade deal. She caved on sequencing of the negotiations; her appeals to the EU’s better self fell on deaf ears; she conceded on money, and refused to not pay until the EU made concessions; she acknowledged that the ECJ would continue to exercise authority in the UK, and in Northern Ireland. Had she won a majority in the June 2017, it is quite reasonable to presume that she would have agreed to Sinn Fein’s United Ireland policy, through the primacy of EU law throughout the island.
Not least, she signed up to an additional document of broad principles about the future relationship. The Treaty would be binding; the principles would not. The 585 pages of the Treaty provide the EU with a cornucopia of lawyers’ delights to trap the UK for ever in a purgatory, specially designed by the EU, led by France and Germany, to rid themselves of the UK problem. As Hans-Olaf Henkel, the German MEP in the conservative and Reform faction in the European Parliament, opined: The EU was acting as if it expected an unconditional surrender of the UK on the terms of withdrawal.
The conclusion must be that May was quite out of her depth in these negotiations, as Lord Lawson bitingly commented; she got lost in the details; she could not see the wood from the trees; reflecting her middle-of-the-way upbringing in small town England, she had no idea whatsoever about Europe, about the reality of Realpolitik embedded in European politics; she clearly thought that kissing Juncker on the cheek was a good thing; a Remainer at heart, she remained a Remainer, and approached the negotiations with a view to mitigating the downsides. She clearly considered that the downsides of Brexit outweighed the benefits of becoming a Global Britain. Reference to Global Britain was dropped over time. Above all, she bought into the EU27 assumption that having signed the draft treaty, parliament would oblige. She did not even know her own country.
Things go wrong.
Things began to go badly wrong after the June 2017 elections. In December, May caved to EU demands, with which she sympathised, for an Irish backstop. The backstop in effect stated that if an alternative could not be found to ensure the open intra-Irish border, the Northern Ireland would fall under the ECJ’s jurisdiction, Irish unity would be thereby brought closer, and the border checks would be on British territory along the Irish Sea. When the news came through that May had accepted the backstop, Dublin was only too aware that it would not be acceptable to the unionists.
From that moment on, Brussels was aware that May would struggle to get the draft treaty through parliament. When Olly Robbins reminded his EU interlocutors that the Northern Ireland unionists would have laws imposed on them against their consent, the Barnier response was to remark that the EU knew what it was doing. What he was doing is forcing the UK to avaler des couleuvres-to swallow snakes in a translation of the French saying. And he was doing so because Barnier would have known from Remainer information, that May would never act on her assertion that “no deal was better than a bad deal”.
May’s attempt to bridge the divide in the Tory party, while “reaching out” to the EU, came in the summer of 2018 with her Chequers agreement. The idea was to avoid a hard border in Ireland; avoid splitting Northern Ireland from the rest of the UK; leave the single market and the customs union; but keep the flow of goods between the UK and the EU nearly as free as under the UK’s EU membership. The UK, she stated in her Mansion House speech of March 2018, would “mirror” the EU’s requirements for imports from the rest of the world, applying the same tariffs and the same rules of origins as the EU for those goods arriving in the UK and intended for the EU. “. The UK accustoms authorities, in other words, would collect revenue for the EU. “But importantly, we would put in place a mechanism so that the UK would also be able to apply its own tariffs and trade policy for goods intended for the UK market”.
May presented her Chequers proposals to the Cabinet in July 2018. Johnson, Dominic Raab, who had replaced Davis as a Potemkin “Brexit Secretary” resigned, as did 6 other junior ministers. Remainers objected on the grounds that if the UK was to “mirror” the EU single market in effect, it would be much better to Remain. Leavers objected on the grounds that Chequers implied permanent continuation of the EU’s corpus jurisin the UK and that the UK would have to adopt all UK laws in the future;
They need not have bothered. May went to Salzburg in September for the European Council meeting there. May was invited in to explain her deal, and then asked to leave; Donald Tusk dismissed the May proposal: it implied a special UK say in EU affairs, and vice-versa. It was “not acceptable”, he said. Macron went further, calling Brexiteers as “liars”. What is remarkable about this public humiliation of May in Salzburg is that her aides seem not to have warned her that she was heading for the rocks. The only thing left for May to do was to sign the draft Treaty and brazen it out in parliament.
The draft Treaty became public in November 2018. Many MPs did their homwework, and read the document, or consulted with lawyers what it meant. On November 13, the Commons unanimously requested the government to lay before it any legal adice it had received on the draft treaty. May prevaricated, and on December 4, a motion was passed by 311 to 293 votes finding the government in contempt of parliament, for the first time in its history. The government then agreed to published the Attorney General’s legal advice. It showed quite clearly that if no agreement could be reached by both sides over the Irish backstop-the UK and the EU- there was no way that the UK could escape the consequences.
From then on out, it was all downhill for May. Tory Leavers submitted a vote of no confidence in her leadership, which she won by 200 votes to 117. Realising that the draft Treaty could go down to defeat, she postponed the vote in the Commons until 15 January 2019. The draft treaty went down to a thumping defeat- the biggest in British history-by a margin of 230 votes. On 14 February, May suffered another Commons defeat, against a motion endorsing the government’s negotiation strategy. On 12, the draft Treaty was voted down again by a majority of 149 votes, and a third time on March 29 by a thinner majority of 58 votes.
Before the passage of the Fixed Term parliament Act-designed by Nick Clegg to make the UK more “European”, stepped down, and general elections would have been declared.The Act enabled May to to glue herself metaphorically to the railings of 10 Downing Street. Worse than that, the conventions of the House of Commons, written down in Erskine May, the bible of Commons precedures, allowed a motion to be submitted only once in a session. Page 397 of Erskine May defines this 1604 rule-contemptuously dismissed as “antiquated” by Lionel Barber, editor of the Financial Times- thus: “A motion or an amendment which is the same, in substance, as a question which has been decided during a session may not be brought forward again during the same session”. May, with the acquiesence of the Speaker, John Bercow, submitted the same motion three times.
The lesson was clear: EU law and procedure can roughshod over UK constitutional conventions. May by now was in full stride in her new role as the EU’s Governor in London.
Two concluding remarks. The narrative of a triumphant Brussels telling the Brits where to go are deeply misleading. Barnier and his team succeeded in reducing the UK to the status of a province, with the help of the Remainers. May could have avoided the final outcome: she could have opted for an EEA or Canada arrangement. But she chose not to. She yielded on sequencing, and accepted from the start that the UK would not negotiate as an equal with the EU27. The result was a Withdrawal Treaty that proved unacceptable to the Commons. May led the EU27 to believe that the Commons would rubber stamp what in effect was a surrender document. They were wrongly informed. So May, by this time figuratively an EU Governor in London submitted the draft treaty to repeated votes, against the conventions of the Crown in parliament. They, the EU 27, have therefore succeeded in sowing dragon’s teeth. Those teeth may sprout into severe civil conflict in the UK, or they may take the shape of a UK very hostile indeed to the EU. This can scarcely be termed a triumph of EU diplomacy.
It can though be counted a triumph if: 1. The UK caves into every EU27 demand, and grovels. This is clearly what Remainers are ready to accept. 2. The harshness of the Carthaginian pact imposed on the UK scares off any other EU27 member state flirting with the idea of exit.
On the other hand, the June 23 2016 referendum and the subsequent three years blew away the layers of cobweb behind which successive governments have concealed the damage that Heath wraught on the Constitution. He effectively ended the five hundred years of sovereignty of the Crown in parliament, which over the centuries had become embedded in the loyalties and expectations of the electorate. What people witnessed with May was a Prime Minister ready to be duplicitous or confused over the central question: who governs the country? And they witnessed a political class that repeatedly promised to respect the result of the referendum, but then revealed that they did not mean it; an EU that congratulated itself on treating a member state as a province, a colony; a Tory party which flies the Union Jack but is the champion of a federal Europe; a Labour party that claims to represent working people, but ignores their visceral preference to be able to sanction their legislators-a feature of English politics already 600 years old. The charade could not go on indefinitely.
The result has been the rehabilitation of Nigel Farage as the leader of the Brexit party, storming the country in the name of democracy. On the other end of the spectrum are the Lib Dems, the one party which is outright for Remain. The conclusion must be that the June 2016 referendum and the subsequent three years have not resolved the question of Remain or Leave. Those remain the two alternatives. The constitutional question: who governs, and by what right, is central to both. UK membership of the EU is transforming British politics; it may yet convulse it.