Fall Out: A Year of Political Mayhem. Tim Shipman
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was an issue of ‘treaty making and unmaking’ and treaties were the sole preserve of the executive. The plaintiffs, represented by David Pannick, argued that it was the 1972 Act which gave effect to the treaty of accession and that another Act of Parliament would be required to reverse it – since the legislation conveyed rights on the British people that could not be removed at the stroke of a pen by the executive.
On 24 January, the president of the Supreme Court, Lord Neuberger of Abbotsbury, announced, ‘By a majority of eight to three, the Supreme Court rules that the government cannot trigger Article 50 without an Act of Parliament authorising it to do so.’ There were predictable fulminations from the Eurosceptics, largely calmed when Davis made a Commons statement announcing that he would publish a bill in the coming days, declaring that Britain was ‘past the point of no return’ on Brexit.
There would have been considerably more angst had they known the argument the law officers would have liked to make in court: that Article 50 was revocable. Pannick’s case was that, once triggered, Article 50 was ‘like firing a gun – the bullet will reach its target’ and Britain would leave the EU. A minister said, ‘We could have said to Pannick, “You’re talking rubbish, it’s not like firing a gun, because at any time the British government can stop this.” Legally, that would have been a great argument and I think it would have really undermined Pannick’s argument. But politically it would have been disastrous.’ If Wright and Eadie had made that case, the Supreme Court would have ruled on whether or not the Brexit negotiations could be stopped and abandoned. ‘The nightmare scenario would have been a delay while the European Court of Justice would have then had to decide,’ the minister said. The reaction of Eurosceptics to the prospect of the Luxembourg court ruling on the rights and wrongs of Brexit can be imagined. Fiona Hill told friends the case was ‘a pain in the head’.
May and Davis were now confronted with the challenge of passing a Brexit bill quickly enough to hit the prime minister’s 31 March deadline to trigger Article 50. They did not doubt that the plaintiffs had brought the case to put a spanner in the works. ‘Gina Miller really wanted to stop Brexit, it was nothing to do with giving Parliament its say,’ a DExEU minister said. The Supreme Court loss bred a team spirit at the top of government. ‘What brought the cabinet together was a sense of us having enemies everywhere,’ another minister said. ‘We were all in this together. If it went wrong, we would all go down.’
The day after the Supreme Court ruling, 25 January, Davis’s original plan began to unfold as May sought to dissuade the Team 2019 rebels from amending or opposing the bill. In response to a question from Anna Soubry at Prime Minister’s Questions, May announced that she would publish a white paper after all. The following day, continuing the choreography, Davis published the European Union (Notification of Withdrawal) Bill. It was just two clauses and fifty words long.
The following week, on 2 February, the government produced its long-awaited white paper. This did little more than turn May’s Lancaster House speech into a formal document. One of the seminal rows of the autumn was proved pointless. ‘We were always going to do it,’ a source close to May said. ‘We couldn’t give a monkey’s about the white paper.’ The prime minister was amused to receive a call from Angela Merkel, who praised her political craft. ‘Merkel congratulated Theresa for the white paper being identical to the speech,’ a senior Downing Street official revealed.
There was a last-minute panic over the bill when officials pointed out that, under the EU treaties, leaving the European Union would also entail Britain leaving Euratom, the atomic energy community which regulated nuclear security. Desperate to keep the wording of the bill to a minimum, DExEU and Downing Street felt bounced into a situation where they might have to add another clause, handing their opponents a greater chance of tabling successful amendments. Fiona Hill told friends it was one of the biggest ‘Fuck! moments’ of the whole process. ‘Euratom was the most complicated decision we’ve had to take,’ a source close to May added. ‘It resulted in a late night meeting that went on for hours where there was a collective head banging. It was like one of those brain teasers, literally contorting the innermost parts of your brain matter.’ In the end, senior figures in the nuclear industry were reassured that while Britain had to leave it would negotiate its way back into a parallel arrangement with Euratom. To avoid creating a rod for their own backs with Parliament, May’s team decided to add that plan to the notes accompanying the bill. It was an elegant way of fulfilling her instructions. A cabinet minister said, ‘One of the points that the PM makes constantly is, “Everyone is concerned about process, I am concerned about ends.” Whether or not you are in the customs union or Euratom is less important than: have you got nuclear safety or near frictionless trade?’
The Tory rebels did not wish to be labelled as Brexit deniers, so they voted with the government on 1 February, at the second reading of the bill – the crunch moment at which legislation lives or dies. The narrow drawing of the bill put the Labour Party on the spot. Europe was seen by Jeremy Corbyn’s senior aides as being ‘in the “too difficult” box’, one said. Now the leader of the opposition had to make a decision.
Ever since the High Court ruling in November, passions had run hot in the Labour Party. ‘You had passionately pro-EU MPs,’ a frontbencher said. ‘You had those who always wanted to leave, you had a group in the middle who genuinely didn’t want to leave but thought we had to accept the result and move forward. That became genuinely difficult to manage. It was a real conscience issue for people.’ MPs were divided by their seats as well as their views. ‘In one ear people were saying, “I represent a heavily Leave area, if you don’t back Article 50 fully I’m a goner.” And then lots of people saying, “I’m in a heavily Remain area and if you do back Article 50, I’m a goner.”’
Some wanted Labour to abstain, but both Corbyn and Keir Starmer thought that would make the party look ridiculous. ‘For the opposition to abstain on an issue as important as this would not be right,’ a frontbencher said. ‘The danger was we would be neither appealing to the 52 per cent nor the 48 per cent, Labour would have been the party of the 0 per cent.’
At a shadow cabinet meeting in late January, Corbyn argued that Labour had to vote for Article 50 and that he would impose a three-line whip compelling his party to do so. ‘Jeremy argued for it as did the majority of people,’ a Corbyn aide recalled. ‘There were dissenting voices. Clive Lewis, Dawn Butler.’ Those subject to the collective responsibility of the shadow cabinet were told they would have to resign if they disobeyed.
At the second reading, the bill passed by 498 votes to 114. Apart from Ken Clarke, every Conservative MP voted to trigger Article 50, but forty-seven Labour MPs defied their three-line whip. Dawn Butler, the shadow minister for diverse communities, and Rachael Maskell, the shadow environment secretary, both resigned their frontbench jobs. When the third reading of the bill was voted on, eight days later, the bill passed its Commons stages by 494 to 122. Fifty-two Labour MPs dissented, including Clive Lewis, the shadow business secretary, who also quit the shadow cabinet. Frontbenchers who were not part of the collective decision-making meeting were sent a letter of reprimand but allowed to keep their jobs.
Corbyn’s three-line whip was presented as a principled respect for the referendum result, but there was another reason for it. ‘If we didn’t support Article 50, then the Tories would have called a general election there and then,’ a source in the leader’s office said. ‘Labour would’ve been wiped out.’ A shadow cabinet minister added, ‘I think they were itching for us to vote against. That would have been the Brexit election.’ When Theresa May came to call an election, she would find it far harder to convince the electorate that it was about Brexit.
The high drama on the Conservative benches came on 7 February, with a vote on amendment 110, tabled by the Labour MP Chris Leslie, which called for ‘any new deal or treaty’ with the EU to be put to a vote before both Houses of Parliament. Gavin Williamson and May’s parliamentary aide, George Hollingbery, found themselves negotiating hard. Up to twenty Tory MPs were threatening to back the amendment. Alistair Burt, Dominic Grieve and Nicky Morgan – her Trousergate ban now rescinded – went in to Downing Street to see May and Nick Timothy. A government lawyer was also waiting for them. After a discussion, May pushed a sheet of paper across the glass-topped table