Following last week’s general election result Theresa May is likely to face severe difficulty in negotiating Brexit successfully unless she seeks cross-party consensus. In this post Jim Gallagher suggests that consensus could be achieved through a special committee of the Privy Council, the membership of which would reflect the House of Commons and also contain representatives of the devolved legislatures.

It will be impossible for a minority government with a weak Prime Minister to negotiate Brexit successfully, against a ticking clock, if it deals with the issue in the normal way of British politics. Government cannot formulate policy privately, then seek to sell it to the House of Commons while talking fitfully to the devolved administrations. Theresa May’s administration can be held to ransom, if not by the DUP, by factions in her own party. The opposition will sense blood and might be keener to bring down the government than do a European deal. The devolved will stand on their rights to consent. So even if she can negotiate some agreement with Brussels, she will fail to secure a domestic legislative consensus and the deal will fail.

The government has already used up two of the 24 months allowed for this negotiation and succeeded only in weakening its position. As a result, the UK is faces a high risk of crashing out the EU in an unmanaged way.

Leaving the EU presents the British state with an unprecedented problem. It must be handled in an unprecedented way. Other countries might consider a government of national unity to give the negotiators authority to commit to a deal. We seem too partisan for that, but some senior figures in both government and opposition parties are already saying openly that a cross-party consensus will need to be built on this question. To build such a consensus, however, is anything but straightforward and will require a degree of trust and information sharing that is wholly alien to our normal way of doing government business – to which Westminster and Whitehall will default unless something radically different is devised.

If government tries to develop policy behind closed doors, keeping the devolved at arms-length and negotiating tactically secure a day-to-day majority in parliament, it will almost inevitably fail. There is certainly very little chance of completing the process in time for the agreement to be settled and ratified in Europe as well as here.

Our notoriously flexible constitution offers one mechanism which might avoid that risk. The Privy Council is something of a fossil: more part of the dignified than the effective constitution. But it is not wholly extinct, and has strengths. It contains senior politicians from all sides, and can be added to will. It has tradition of secrecy (‘privy counsellor terms’) and its membership and ways of working are entirely flexible. Notionally, the cabinet is already a committee of the Privy Council.

A new cross-party, and cross-legislature, committee of the Privy Council could be set up to create the maximum consensus on the terms of Brexit, so that they can be delivered domestically. When consensus needs to be built at a time it is not an exaggeration to describe as a national crisis, the senior politicians in our country need access to the best information and advice the country has to offer. So it should have open access – on the normal confidential terms – to civil service information and advice, as the negotiations proceed, and should be serviced by the Cabinet Secretary. It might also draw on outside experts, but cannot be a talking shop.

The committee’s membership should first reflect the composition of Commons. So Conservatives – most likely ministers – will be the largest group, but not a majority. Labour would be substantially represented, and so would the minor parties, including the SNP and possibly the DUP. But the committee should also include representatives from the devolved legislatures. Since no party has an overall majority in the devolved legislatures in Scotland or Wales, their representation too should be cross-party. It might be argued that this over-represents the Scots and the Welsh, but that is the nature of the Union: and while – as the Supreme Court has confirmed – the Scottish Parliament and the Welsh Assembly do not have a legally binding veto over Brexit, they will have to legislate to put it into practice within their responsibilities. In any event, the Conservatives might welcome the arrival of the redoubtable Ruth Davidson on the scene. (The absence of devolved government in Northern Ireland is a problem here, as the DUP might not be the best or only interlocutor for its interest.)

Such a committee would be advising the executive, and not exercising executive authority. But its discussions (which are ‘privy’, and hence can be frank) would make plain what sort of settlement would command consensus, and it would also inform domestic politicians outside government of the realities of the negotiations. Its first task would be to agree the overall shape of Brexit that might be achieved. The agenda has already been set by Brussels – inevitably. The UK will have to accept that the terms of departure and the nature of a future relationship are two different questions. The most obvious way of dealing with that is to begin with an interim arrangement which accepts the single market and customs union after departure, until some alternative might be agreed.

Setting up such a procedure would actually strengthen the government’s position. It would demonstrate that the position advanced in Brussels can secure consent at home. Otherwise, if we rely on the normal processes of government policy-making, parliamentary scrutiny and devolved negotiation we are setting ourselves up to fail the biggest peacetime challenge which has faced the UK state.

About the author

Jim Gallagher is an Associate Member of Nuffield College, Oxford, and visiting Professor of Government at Glasgow University. He was Director-General, Devolution Strategy, at the Cabinet Office from 2007 to 2010. He tweets @ProfJimG.