At the end…

Will Theresa May’s gamble pay off?

As with the past two elections, the exit poll will be the big shock moment. Exit polls haven’t been bad in recent years – or to put it another way the ordinary polls have been so poor that the exit poll is a big step up in quality of information. If this says 50+ Tories, and you’ve got a big meeting tomorrow, you can afford to take the night off.

But if you do want to stay up for the whole thing, then watch out for the following:

  • The Tory win depends on winning a lot more votes in the north, and locking down the Midlands. You get your first sign of how well this will work when the first result comes in from Sunderland. I’ll be watching the total number of Tory votes here – if there’s a big rise (or equally, if there isn’t), this is the time to place any last-minute election bets.
  • In the West Mids, there is potential for a lot of permanent-Labour constituencies to elect their first Tories ever. Coventry hasn’t elected a Tory since at least 1964 – if the Tories are doing well, they’ll pick up two tonight.
  • Equally, if you want to see the limits of what the Tories can do, look to South Yorkshire. Seats like Don Valley, Rotherham and (in some of the wilder dreams) Ed Miliband’s Doncaster were looking vulnerable once. I doubt they will fall, but strong Labour holds here bode poorly for the blues.
  • A totemic win for the Tories would be Sedgefield, Tony Blair’s old constituency. With a Labour majority of just under 7,000, and 6,400 UKIP voters, this is within the bounds of possibility.

Will the revolution eat its children?

One of Labour’s problems in the 2010 election was that its top figures were getting ready for a succession contest rather than government. The same is true now. Both pro- and anti-Corbyn people will try to spin the results to blame the other side for what went wrong.

  • For Corbynistas, the key question is how high is the overall Labour share of the vote? Higher than Brown (29%)? Higher than Miliband (30.4%)? Higher than Blair in 2005 (35.2%)? The answer to this could well be ‘yes’ on all counts, given the collapse in third party voting. This is the most likely defence from the idea that the election has been a disaster.
  • The counterargument will be based on seats. A good share might not be reflected in the seat total – given that Labour votes are in the wrong seats. Under 200 would come across as a very bad result indeed, after a campaign that has gone very well. The number of ‘deep Labour’ seats that fall, having never voted Tory before, will be especially sensitive here.
  • And how well do Corbyn’s enemies do? People like John Woodcock in Barrow and Wes Streating in Ilford North are sitting on majorities that should make them dead men walking. If they survive, they will have a personal mandate devoid of Corbyn, which will be very important in the Westminster power game.

Where did all the Lib Dems go?

This has been a dire campaign from the Lib Dems, so any wins will feel sweet. But they may be scant.

  • The best chances of pick-ups will be in South West London. Based on my local soundings, I’m reasonably confident that they will hang on to Richmond and regain both Twickenham and Kingston. If you want to put money on this, Kingston feels the most certain on the strength of a very strong local campaign.
  • The next test is what happens in the university seats. Cambridge is a rare battleground between the Corbynite young and hard-core Remainers – and while it should have been a Lib Dem cert, it’s now competitive.
  • Then there may be some old Lib Dem seats that flip back outside of London. I’d watch Bath (probable gain) and Lewes (probably stays Tory). But the vast majority probably aren’t coming back.

Special Places

  • Scottish politics are weird. I have no idea how many seats the SNP will lose, so there’s potential for a few surprises. Whether the SNP loses seats (or how many it loses, and who the sitting MPs are) will be important to the moral case for a second indy ref.
  • Beneath the radar, Welsh Labour has allegedly had a very good campaign. That could mean some surprise Labour pick-ups. I’m watching both Newports.
  • London has been increasingly strange in recent elections. The reasons for this are even stronger in a Corbyn world. Croydon Central, Brentford and Ealing Central are all currently very close. Kensington could be a surprise Labour pick-up based on local politics. Equally, out to the east you could see heavy Leaving constituencies like Dagenham turning blue.

One last thing

Don’t bother with telly news. Everything you need to know will be on twitter a good 15 minutes earlier. The dog hours of the night, from 11:00 to 1:00, will be nothing but talking heads with nothing new to talk about; but out on Twitter you’ll be right in the thick of it.

Have fun.

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No complaints!

imageSometimes the English courts, in their idiosyncratic glory, produce a result that makes you proud to be British. Today is one of those days. I say that partly because the High Court has made a fundamental assertion of individual rights in the face of executive action, upholding centuries of proud constitutional tradition. But mostly I say it because it’s bloody funny.

Before getting into the detail, an important caveat. This court case does not stop Brexit. If it did, I would feel much less warmly towards it. What it does mean is that the decision to leave has to be debated in parliament first – more on what that means below – and once that is done Brexit can of course proceed.

The reason to be truly proud of this judgment is not because it delays us leaving the EU (if it does), but why it has stopped the government from doing this on its lonesome.

To explain, I’d better start with a bit of constitutional background.

The central tenet of British constitutional law is parliamentary sovereignty – the idea that there is no body that can overrule Parliament once it has made up its mind. That includes the monarch, and it includes the prime minister and government of the day – known collectively as ‘the Crown’.

This principle was established over a long period of time – one king lost his job over it; another lost his head. But because this was done slowly and contingently, there are a few leftover areas where for reasons of expediency the Crown is still allowed to do what it likes, known as ‘prerogative powers’. These mostly relate to international diplomacy: and crucially includes the signing or abrogating (unsigning) of treaties.

The complexity in today’s case comes from the fact that in 1972, ahead of joining the European project, Parliament passed a law saying that all relevant future European legislation would be adopted into domestic law. In triggering article 50, and effectively overruling that act, are you also overruling Parliament? If so, the constitutional precedent is clear that it can’t be done without going back to Parliament and getting them to repeal the act.

The Petard-Hoist

The plaintiffs were smart here. I’d expected their case to be based on the minutiae of prerogative powers versus parliamentary sovereignty. So, to judge by their submission, did the government’s lawyers.

But instead, the plaintiffs made a much more fundamental appeal. They point out that the 1972 Act didn’t just absorb European law – it gave people rights. The right to live and work in other places; the right to appeal to a set of courts; the right to be protected from the government interfering in their lives. And one point on which the history of prerogative powers is exceptionally clear, is that the crown has absolutely no right to unilaterally deprive people of rights given to them by Parliament and the law.

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Precedent on this point has been established. Ask Charles I.

I suspect that there will be a lot of grumbling in the Leaver camp about the unpatriotic nature of this legal challenge. But the simple truth is that only someone who truly understood the British constitution and its protection of individual liberty could have even thought of such an argument. You can trace its ancestry straight to the Bill of Rights and Magna Carta.

The Punchline

And this is hilarious. I have spent years patiently putting up with Europhobic bores endlessly moaning about the way in which the EU has been taking away fundamental British liberties.

People like Jacob Rees Mogg or Daniel Hannan have droned relentlessly about how they are standing up for the fundamental rights of British people under the common law. And now those rights have come back to bite them on the fundament.

The logic is impeccable – there is no more basic principle of the British constitution than the idea that parliament will protect individual rights from being taken away by the government. This is what we were taking back control in order to protect! The look on their faces!

Whatever your views on Brexit, we should all be profoundly glad we have a court system that prevents the government taking away our rights without getting the permission of Parliament. It doesn’t matter how loudly the public call for it, or how strong the case for taking those rights away is made. They cannot come for you or me without the consent of our elected representatives.

The Politics

Stepping back into the more practical business of government, what does this ruling actually mean? Let’s assume that the Supreme Court upholds the ruling (which is not guaranteed – there are other fundamental points of law that could be brought to bear). What next?

First, government doesn’t have a choice about going back to Parliament; without its approval we don’t meet the provisions to trigger Article 50. So expect government to bring forward emergency legislation – quite likely sooner rather than later.

In one sense, this isn’t complicated – pass the legislation and we’re back on track to leave. And even if remain MPs have a notional majority of over 300, in practice most MPs belong to the ‘Brexit means Brexit’ camp. Brexit won’t fail in the Commons. But…

Just because Brexit passes the Commons, it doesn’t mean it passes without conditions. If legislation is needed, that legislation can be amended by MPs to make it match their wishes.

Those conditions won’t say ‘no’. But I could easily imagine them requiring government to share a plan and convince people it is credible before Article 50 is triggered – which would in practice be a big delay. Involving Parliament changes the tone of the debate, away from the simplicity of ‘Brexit means Brexit’ towards the much trickier question of how much you trust the government to get Brexit right.

This will create a climate of deal-making and influence trading, and probably new groupings who are willing to attach particular conditions to Brexit – either to soften its edge or to keep it ‘true’ to the referendum result. That pushes us towards whole new parliamentary alignments, which probably cross conventional political boundaries. The debate on Article 50 could see parties made and unmade live on television, as hardcore leavers and remainers fight for floating voters. Even if you forget the majority of 16, it’s probably the hardest vote the Tory party has faced since the abolition of the Corn Laws – and that split the party in half and kept them out of power for thirty years.

If it’s a free vote, parliament writes its own Brexit; if it’s a whipped vote then a few remainers rebel and government loses; and if it’s a vote of confidence, the government will fall. It’s a no-win scenario for Theresa May.

Second, even if it makes it through the Commons, it has to get through the Lords. That’s even harder. The government doesn’t have a majority here, and the red benches are packed with remainers. There are constitutional precedents about what the Lords has to say yes to – notably around enacting manifesto commitments in an election. This decision doesn’t fall into this category.

Now, in practice the Lords isn’t going to stop Brexit this way – blocking a legitimate referendum result would be the best argument possible for abolishing the Lords altogether. But again, the Lords can attach conditions, and send the legislation back to the Commons. This isn’t a viable delaying tactic, but if you assume a bloody fight in the Commons, the Lords can start exactly the same thing up again.

The conclusion is this – Brexit is now parliamentary property, and will have to be negotiated in the open. Don’t expect it to start in March, as promised. And don’t be surprised if 2017 is the year that all our politics changes.