14 days to constitutional crisis and what can be done to prepare

There are now 14 days or so to go till the ‘meaningful vote’ on the Withdrawal Agreement & Political Declaration agreed by Theresa May, assuming that the government abides by its latest promise.

If, as currently predicted, the government loses, a vote of No Confidence will certainly be called by Labour, and immediately. If that is won, a General Election follows, and events will take their course.

If — and this seems more likely — the government survives, we enter a period of profound constitutional crisis, with No Deal chaos, and the Civil Contingencies Act used to replace democratic rule, a real possibility.

This 14 days to the meaningful can pass in two ways for Remainers.

The more likely way is that nothing much will happen, and the Remain media outlets will overflow with join-the-dots pieces about how a Citizen’s Assembly might be a nice way to fix things (here’s the latest) and about how Labour must stop delaying and back a second referendum immediately (here’s the latest). It will be a long two weeks

The second, less likely way is that, via the myriad of pop-up institutions formed to rage ineffectively against a machine they don’t understand, there will be a sudden understanding that something can and should be done, right here, right now.

That something is the preparation of dozens, even hundreds of Sustainable Communities Act proposals to government to demand — the day the constitutional crisis begins — that the power to create a solution to that crisis be placed by government in the hand of sub-national elected authorities.

The details on and how that can and should be done are below.

It’s now a simple binary choice — do nothing but whine, or do something. It’s late, but not too late.

Notes on the use of the Sustainable Communities Act

There is a mechanism — already on the statute book — which would allow a government to devolve a Brexit deliberation process whilst also allowing it to save face through the argument that it is deploying existing legal provision in the national interest, in the event of a constitutional crisis in which parliament has become ‘stuck’, a No Deal Brexit threatens, and the potential for the interruption of normal democratic rule exists.

That mechanism is the Sustainable Communities Act, first put in place by Labour in 2007, them embraced and amended to give it greater permanence, by the new Tory administration in 2010.

The Act allows councils, right down to town and parish council level, to seek the devolution of powers normally exercised by central government, where those councils can evidence that such devolution of power is in the interests of the well-being of their communities. The government is bound by law to consider such applications and, even if they are dismissed first time round, to seek to come to agreement on the proposals if they are re-submitted via the appropriate route.

The validity of the use of the Act in the Brexit context has already been tested by Plymouth City Council.

Given the grave constitutional crisis we face, and the real threat of disorder, even political violence, it will makes sense for councils to seek permission from government both to manage this kind of deliberative process, and then to submit collective recommendations to the government on future relations with Europe, on the basis that such a process will protect their communities from harm caused by disorder.

Such deliberation, locally conducted and locally focused, would almost certainly produce outcomes far removed from the extremes that the national ‘debate’ has created.

It would also allow whichever government is in power, to avoid the fresh carnage of a second referendum based on exaggeration and lies, while still allowing it a semblance of parliamentary control over the whole thing, through its delegation of powers to the sub-national political bodies over which, under our current constitution, it has overall control.

It is this level of control which might just persuade the government to revoke Article 50, on the legally binding promise that the findings of the national-but-local deliberations will form the basis for a new relationship with the EU — and leaving it would not be discounted at this stage — to be enacted by a calmer, wiser parliament.

The initiative to make such applications lies, of course, with councils themselves, but those parliamentarians with a decent understanding of what is at stake, and those pressure groups set up to make a Remain case, might be well positioned to encourage council leaders to make such a move, in a way which opens up public space for an initial ‘debate’ about how we might avoid the worst, while also working across the House to create the conditions for this type of Article 50 revocation.

Secretary General, Habermasian Labour (UK). Indefatigably focused on the promotion of ethical discourse in the public sphere, except when there's cricket.