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Theresa May: She faces two sets of problems now (Raul Mee (EU2017EE) CC BY 2.0)


Can Theresa May deliver Brexit and hold the Conservative Party together? She has two sets of problems: finding a way forward on the UK’s future customs relations with the EU after Brexit, and getting the necessary legislation through parliament.

The key piece of Brexit legislation — the European Union (Withdrawal) Bill — made its way through the Commons largely unscathed. In the House of Lords the story has been rather different. The overwhelming Remainer majority in the upper house have made their weight felt during Report stage and Third Reading; the government was defeated 15 times.

The Bill now goes back to the Commons to consider these amendments. Ministers may choose to live with some of them. But others are incompatible with delivering the Brexit that the government has promised.

They include: Amendment 1, which makes the passing of the legislation conditional on the government seeking to “negotiate a customs union as part of the framework for a future UK-EU relationship”; Amendment 49, which creates a mechanism for the government to be forced by parliament to renegotiate its withdrawal agreement under a set of circumstances; Amendment 51, which means the government would need to get parliamentary approval for its negotiating stance; and, most spectacularly, Amendment 110A which mandates the government to negotiate continued membership of the European Economic Area (EEA), i.e. the Norway option, meaning that the UK would have to continue to adhere to all EU regulations and maintain free movement.

The government has control over the Commons timetable, so can delay when these amendments go back to the floor of the House. This is the tactic Theresa May has repeatedly employed in the hope that somehow a rabbit can be pulled out of a hat at a later point. Her ability to delay matters is now limited: the legislation needs to be passed well before the withdrawal date of March 29, 2019 and the government has announced the amendments will come back to the Commons this month.

The government should have little difficulty overturning the amendment which keeps Britain in the EEA. Labour’s policy is to support Britain leaving the Single Market; and even if that policy is reversed a significant number of backbench MPs in pro-Leave constituencies would certainly rebel — continued free movement is a non-starter.
On the other Lords amendments the government is in trouble. Tory Europhiles in the Commons have been emboldened and the whips believe that up to 20 Tory MPs will rebel when they are asked to overturn them. The government, with the DUP’s support, has 326 votes and the opposition (without Sinn Fein who are abstentionist and hence irrelevant) has 313 votes.

A few Labour Eurosceptics should vote with the Conservatives — certainly Frank Field, Kate Hoey and Graham Stringer — and there may be a few more, such as Caroline Flint, who would abstain. But other Eurosceptic Labour MPs would not vote with the Tories if they have a chance of defeating them. Dennis Skinner, for example, a lifelong opponent of European integration, will swallow his scruples if there is any chance of defeating the traditional enemy. In an ordinary vote on these amendments, May simply does not have the numbers to overturn the Lords amendments.

The Tory whips believe that the only way they can win is to turn the votes into a confidence issue for the government. It is their belief that under those circumstances no Conservatives would rebel and that they could then still rely on the votes of up to three Labour MPs.

The Fixed Term Parliaments Act, passed by the Coalition government, complicates matters. It means that the only thing that would cause the government to fall, regardless of what the whips might say, is losing an explicit vote of confidence. That means Tory Europhiles could rebel on the Lords amendments and then troop through the government lobbies the next day when a confidence vote is called.

Kenneth Clarke has already made clear that this is his plan; the party could threaten to withdraw the whip from him and any others who follow his lead, but that would not necessarily stop them.

Some of the more hardline sceptics in the European Research Group of MPs are convinced that May is playing a cunning game with her party’s Europhiles and will use the lack of a parliamentary majority for a proper Brexit as an excuse to do what she would really wish to do anyway, namely deliver the softest of soft Brexits.

That is why talk of bringing down the government is growing among the Conservatives’ hardline Brexiteer MPs. They are doing their best to make clear that a compromise with the EU on a future customs partnership or on the Lords amendments threatens the survival of the government. The Eurosceptics have the 48 MPs necessary to trigger a vote of no-confidence — but they believe that May, if she had compromised on Europe, would then win such a ballot.
The only way then to bring down a May government would be the nuclear option — voting against it in a confidence vote on the floor of the House. The consequences of this would, of course, be disastrous for the Conservatives. It would either mean that Jeremy Corbyn could cobble together an extremely unstable minority government if the Brexiteers agreed not to vote it down, but which they could bring down at any time of their choosing, or — more likely — bring about an early election.

Such an election would be an extremely messy affair. Brexiteer Conservative MPs would be readopted by their Eurosceptic Conservative associations and the central Conservative Party would have to choose whether or not to run candidates against them.

If the central party did put up candidates the Brexiteers would certainly also put up rival candidates against May loyalists, and the Conservative Party would be irrevocably split. If the central party did not put up candidates it would permanently demolish the authority of the whips’ office, with MPs remaining in the party even if they had committed the most heinous of crimes, voting to bring down their own government.

In the end, most Eurosceptic MPs would probably draw back from taking this nuclear option — but the government’s majority is so small that it would only need seven or eight to do so for the government to fall. It is significant that many more than that are even contemplating such a path. May really does have some tough choices to make.
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