19 Dec 2018

Dry January? The next stages in the seemingly endless Brexit saga

D124B181-B1EB-4BDF-B45DB3CA36814A0F.jpg

The House of Commons will conclude its business for 2018 tomorrow. It will not return again until 7 January 2019. Its departure will be received with relief in Whitehall. It affords some time for the Prime Minister and her team without the prospect of being obliged to spend several hours every week addressing what are essentially the same questions from essentially the same people with essentially the same political motives as the last time Theresa May stood at the despatch boxes.

The month of December was not a kind one for the Prime Minister. She always knew that driving a Withdrawal Agreement through the House of Commons would not be a straightforward exercise. She was entitled to think, though, that it would be somewhat less challenging than it proved to be.

Her efforts in this regard were doomed by three factors. The first was the absence of any kind of ‘exit clause’ from the Irish backstop, even one which would have involved such consequences and costs if exercised that Brussels and (especially) Dublin could have been confident that it was most unlikely ever to be mobilised. The lack of such a device (even if incredible in practice) is what led to Dominic Raab’s resignation as Brexit Secretary and a huge revolt among anti-EU Conservative MPs.

The second element of misfortune was timing. The Prime Minister launched what was billed as a two-week national campaign in favour of her deal with, in fairness, a degree of gusto and with an element of evidence in the opinion polls that she might be making an impression on the country. All of this was killed stone dead when she had to abandon that quest to make the very long journey to and from Buenos Aires, Argentina for the G-20 summit (an occasion of almost no real consequence). Finally, she could not separate the Brexit issue from the enduring debate about her own leadership.

Despite all that, she is still here. She has survived the humiliation of having to withdraw her own proposed treaty from the House of Commons for fear that it would be defeated by a wide margin. She has swerved the bullet of a confidence vote from her own colleagues if not entirely convincingly. She has had to endure an EU Council in which Jean-Claude Juncker was not at his most helpful. She will make it to January and hence 2019 as Prime Minister. In truth, this is almost certainly merely a stay of execution. Where there is life, nonetheless, there is hope. How might January play out now?

Act One: A revised version of the Withdrawal Agreement returns to Westminster

Mrs May asserted on Monday that the Withdrawal Agreement would return to the floor of the House of Commons in the week starting 7 January and that a vote would take place in the week thereafter. This is a formula which allows a little flexibility in terms of the actual dates but not very much. It has been designed to produce a result of some kind before 21 January when the law states that if there is ‘no deal’ by that moment then the Government must set out in a motion what it intends to do next. That motion, which strictly speaking has no legal status as it is not statute, can now be amended by the House of Commons, although, once again, such amendments are no more legal instruments than the original motion set out by ministers would be. At its crudest, the motion put before the House as to ‘what next?’ could be the one word ‘nothing’ while a majority might be assembled among MPs to replace this with the one word ‘something’. Stalemate would then occur.

The delay to January makes the clock a crucial part of the equation. The law already insists that the UK will leave the EU on 29 March 2019 (at 11pm local time). Unless something is changed in law and through the laborious process of enacting a law, that is what will happen and unstoppably. This is an underestimated card in the hand of the Prime Minister. The default outcome is set and it is not simply a requirement for a majority in the House of Commons to emerge in favour of something else, but ministers have to be willing to introduce measures to secure that alternative outcome.

For that reason alone, the near universal view among political commentators that there is no chance of a Withdrawal Agreement 2.0 (if actually more akin to 1.1) being enacted in January should receive a little scepticism. This opinion is based, entirely reasonably, on the fact that barely 10 days ago the first version of the Agreement had to be abandoned under fire from three fronts: the Democratic Unionist Party, the pro-Brexit Tory Right and the pro-Remain (via a second referendum) Tory Left. If this somewhat unholy Triple Alliance is still in play come January, then the Agreement will be lost.

There is a chance that life will be more complicated than that. To procure a prospect of an unlikely victory requires three developments. The first is that the EU offers slightly more than it has done as to reassurances (more political than legal) than the Irish backstop will not be triggered. The second is that a formula is found to allow Parliament far more influence in the choice between the backstop and an extension of the transition period (and possibly some other options) if no free trade deal is deemed available come June 2020. The third is that Mrs May revisits her pledge of last week to stand down as Conservative Party leader before 2022 with something much more imminent and explicit such as a statement to the effect that she will stand down well before the end of 2019.

The critical actors in the next stage of this drama will be the Democratic Unionist Party. If they can be persuaded that the provisions around the backstop have become less unappealing then that will have an impact well beyond their numerical standing. It would leave the European Research Group pro-Brexit camp of Conservative MPs in a significantly more exposed position, particularly if they knew that they would have the chance for an orderly assumption of the party leadership in 2019. That would then leave the ultra-Remain faction of Conservative MPs, but their numbers are small enough to be cancelled out by pro-Leave Labour MPs, anti-Corbyn Labour MPs and a few others. The chances of Mrs May winning are not much better than one-in-three but it is not quite inconceivable.

Act Two: Labour moves and loses a real Vote of No Confidence in the Government

If the DUP cannot be shifted and there is a vote on 14 or 15 January then Mrs May’s Agreement will be defeated. At that point, whether it likes it or not, Labour will have to put down a full-blown vote of no confidence in the Government. Its own supporters will demand nothing less. Yet as the DUP has made it plain that it would not support Jeremy Corbyn in such a venture, it will not pass muster. This will be not only a tactical defeat but it will take the theoretical prospect of a general election off the table.

It would also mean that there is no chance of a referendum being held before 29 March so one could only happen if the current Government were to ask for an extension of Article 50 solely to allow the time for such a plebiscite to be organised. It is close to unimaginable that Mrs May, or anyone else as leader of the Conservative Party, would commit to such a proposition. At most, Labour might find itself moving towards the stance that, come the next election, it would be in favour of a ballot on re-entry to the EU but that would not matter much in the immediate context.

Act Three: The political class in Westminster is finally compelled to make some choices

By the end of January, therefore, unless Act One sees the Withdrawal Agreement embraced, the political class in Westminster will finally be forced to make choices. Mrs May will have to choose whether to attempt to remain in place. The Cabinet will have to ask itself whether to allow her to. Informal discussions will lead either to indicative votes or a cross-party consensus. The options will narrow to extending Article 50 (implausible under this Prime Minister, credible for another one), a patchwork quilt of short-term arrangements that allow the UK to leave the EU as planned on 29 March but enter a de facto short term transition period (which would involve the financial settlement and citizens’ rights aspects of the Withdrawal Agreement being respected), or the ‘Norway Plus’ interim idea that is the ultimate fallback, albeit one that might also need a short deferral of Article 50 to negotiate.

Much of the politics of the parliamentary recess that is almost with us will be about personal and party positioning in advance of those choices. Mrs May will cling to the hope if not the expectation that all concerned will conclude that they might be better off returning to her bargain.


×

Update your login details

We updated our website and supporting systems on 12th December. 

If you previously had an account, please reset your password. If it's your first-time logging in, please register to create an account. For assistance, please contact the BVCA Membership Team

Login