21 Nov 2018

What Next? Will it be Brexit Plan A1, A2(a), A2(b), B1, B2 or B3 or something else?

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In politics, like comedy, timing is everything. Alas, this is not the only point of similarity between public administration and alternative humour that can be witnessed in the UK at the moment.

Farce is also making an appearance, not least in the spectacle of the European Research Group section of Conservative MPs throwing down the gauntlet at the Prime Minister on Thursday, with the strong implication that they could deliver the required 48 letters needed for a confidence vote in Theresa May within a day if not inside hours, and then distinctly failing to deliver on that assertion. They may still manage to meet the magic number but because timing is so important in political intrigue, the arrival of the 48th letter now will not have anything like the impact that it would have had last week.

It is the interaction of the rules of the Conservative Party as they relate to its leadership, the precedent of 2003 - which is the only example of an attempt to oust an incumbent by those means – and, additionally, the mundane requirements of parliamentary schedules and life that are critical to understand.

The rules are that 15% of Conservative MPs must formally seek a vote of confidence via a letter to that effect delivered to the Chairman of the 1922 Committee (currently Sir Graham Brady) for a ‘yes’ or ‘no’ ballot on the fate of Mrs May to occur. Those letters have no time limit on them so one that was sent two years ago is as valid as another that is dispatched 10 minutes ago. The letters can be withdrawn at any stage. Letters could be sent by supporters of the leader as well as their opponents.

The precedent comes from 2003 when an ultimately successful attempt was made via these means against Iain Duncan Smith. The rules stipulate that the decision on when the ballot should occur is made by the Chairman of the 1922 Committee (as the Returning Officer) in consultation with the leader. In 2003, the precedent was set that the ballot took place at the earliest parliamentary opportunity, which back in November 2003 meant that the vote was held the very next day.

We then come to the necessities of parliamentary existence. While the rules do not explicitly state that the House of Commons has to be in session for a confidence vote to be conducted, it is widely assumed that it would be extremely impractical to assemble Conservative MPs if they were not in Westminster collectively. In effect, therefore, a sitting leader is safe from challenge in a recess.

If the House is sitting (which it clearly is now), other factors come into consideration. A Monday would be a difficult day to hold such a vote as many MPs would be travelling back from distant constituencies and (perhaps especially in the UK) at risk of travel disruption. Indeed, as was seen earlier this week, it would be entirely plausible to be an MP representing a seat in Surrey and be so adversely affected.

Tuesday and Wednesday are optimal. Thursday is possible but ideally with a little notice as the norm is that government legislation is not on the Order Paper - the day’s agenda in the House - but matters of internal proceedings are instead. Unless these are of interest to an individual MP, many would ordinarily head home on any Thursday. On Fridays the House is either not sitting or dealing with Private Members bills. No day for a ballot.

Why does any of this matter? There is no hard proof but there is widely held sentiment that the less time that passes between a confidence vote being called and it being held, the better for the leader. Although Mr Duncan Smith was deposed in 2003, it was by a relatively close margin of 90-75 votes.

The first thought of middle-of-the-road MPs is that ejecting a Prime Minister is an extreme measure. If offered the time for second thoughts to enter the frame, however, that opinion can alter. Mrs May was in real danger on Thursday night when it looked as if the letters needed to trigger a ballot would be in by Friday morning at the latest and almost five days would pass before the ballot box closed.

That would leave lots of time for MPs to ask themselves whether a different, more pro-Brexit, leader might have a better chance of changing the deal on the table even slightly and be able to contend that they would approach the second phase of the negotiations after 29th March with an emphasis on securing a Canada+++ settlement which was closer to the instincts of most Conservative MPs. Had that become an emerging consensus then she would have been doomed. Yet the ERG could not produce the numbers. Timing started to work against them. That could prove to be a fatal mistake.

Could there still be a confidence vote?

Yes, certainly, although it is hard to see how the head of steam which seemed to be there last week could be repeated. Another drive at a coup could take place once the political declaration or ‘Future Framework’ addendum to the Withdrawal Agreement is published and it aggrieves a new set of MPs, or if the supplementary meeting of the EU Council due to convene on Sunday went badly off piste.

It is even possible that if the reverse were to transpire – the Future Framework was well received and the Council deemed an unexpected personal success – that Mrs May could, in a variation of a tactic that John Major employed in 1995, instruct some of her loyalists to request a confidence vote at a time of her convenience, allowing her to win by an imposing majority and then be immune to any other confidence vote for another year.

The drawback to that approach (other than it requiring quite a few glasses of whisky before signing off) is again one of tedious practicality. The Prime Minister is either en route to, from or in Argentina for the G20 summit for almost all of next week.

What do her opponents do if they cannot force a confidence vote?

Wait and see is about the only strategy open to them. Having ignominiously failed to strike swiftly and decisively, they can hardly afford to try again and fall short once more without looking feeble. If they are to restore their credibility to any degree, they need to avoid fratricide over who did not tell the truth to whom about letters which in the end were not submitted or else they will fall apart as a faction.

They also need a coherent line as to whether they actively favour a ‘No Deal’ on 29 March which involves moving straight to WTO rules (and a viable explanation as to why this would not be an invitation to chaos) or they need a convincing argument that ministers are bluffing about ‘No Deal’ in the full knowledge that there are short-term fixes which would avert it. Finally, they need a compelling alternative to the existing EU-UK proposed deal which could be implemented by March.

Does any of this change the fundamentals as to how the UK leaves the EU?

Not really. Plan A for the Prime Minister and the Government is to take their preferred package to the House of Commons in early December and prevail at the opening attempt. This still looks like a long shot.

Moving all of the DUP, the ERG and ultra pro-Remain Conservative MPs into the same voting lobby alongside the clear majority of Conservative MPs in about three weeks would be tough. Plan A2(a) would then come in to play which involves losing in the House (or pulling the measure as defeat was certain), seeking to extract one more concession from the European Council meeting of 14 and 15 December, and then returning to muscle it through the House before the Christmas break. Plan A2(b) would be the same in terms of content but involve delaying a vote until January.

And if that does not work? After 21 January, the date in law by which a Withdrawal Agreement needs to have been enacted, the debate would be which of the various ‘Not Deals’ rather than ‘No Deal’ would be the most appealing road to travel.

Plan B1 would require the extension of Article 50 (which Mrs May would naturally recoil from). Plan B2 is the sticking plaster of an emergency series of mini-deals covering essential services to avoid a cliff edge Brexit. Plan B3, quietly acquiring more enthusiasts, would be for the UK to become a member of the European Free Trade Association (EFTA) pillar of the European Economic Area (EEA) for a period. There are more votes in Parliament for any of these possibilities than a disorderly Brexit in March.

Tim Hames
Director General, BVCA


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