Defeat, deal, or no deal?

‘If we know one thing about Theresa May, it is that she always wants to carry on, however bad the outlook’

Michael Mosbacher

Theresa May defends her deal: Her chances of getting it through increase once an election and referendum are ruled out (© PA Images)

As I write this, Theresa May is on her feet in the Commons defending the Withdrawal Agreement she brought back from the EU’s Brexit summit in Brussels. The Withdrawal Agreement will be voted on in the House on December 11, with three days of debate the previous week. Since this issue of Standpoint will remain on sale until the end of January, its readers have a certain advantage in knowing where we stand with Brexit — but I will, perhaps foolishly, consider where we are heading and where I think we will be by early 2019.

It is looking extremely unlikely that the Withdrawal Agreement will be approved by the Commons at the first attempt. At the time of writing 95 Conservative MPs have pledged to vote against May’s deal along with the 10 DUP MPs. From the opposition benches, the MPs likely to support her at present seem limited to independent Unionist Sylvia Hermon, ex-Labour MP John Woodcock and still Labour MP John Mann. If the vote turned out like that, roughly 224 MPs would support the deal and 415 would oppose it — the actual vote figures would be slightly lower on both sides due to Tellers and a limited amount of pairing.

The number of Tory rebels will almost certainly be whittled down and May may win over a few more opposition MPs — but it is still an extraordinarily steep hill to climb. The more certain it is looking that the government will lose the vote, the larger its defeat will be. The greater the number of Conservative rebels, the less risky it is to the individual Tory MP to rebel. The more certain the government is of losing, the less attractive it is for opposition MPs to support the Withdrawal Agreement — why risk one’s political future if what one is voting for will be defeated anyway? The government, if it is facing certain defeat, may be tempted to pull the vote, or rather delay it until after Christmas in the hope that something, anything, happens in the meantime. This is a tried and tested formula, much loved by May — but after all the hype this would be almost as humiliating as losing a vote in the House.

What happens after the initial defeat? The government will have to state very swiftly what it intends to do next. May could state that her policy has been rejected and it is thus up to others to offer solutions — and resign. On past performance this seems unlikely. If we know one thing about May, it is that she always seems to want to carry on however bad the outlook. Look at her response to the disastrous 2017 general election.

The government will really have three choices. It could announce that its attempt to find a negotiated Withdrawal Agreement has failed and it is going for a no-deal WTO terms Brexit. It could argue that, since its preferred policy had been rejected, it would now be pursuing a Norway-style option and seeking membership of EFTA. This solution would find wide favour in the House — even among some Brexiteers as it certainly gives a smaller role to the European courts and returns greater sovereignty to the UK than May’s agreement — but it would preserve free movement to a significant extent.

It is difficult to see May surviving under these circumstances because her interpretation of the EU debate and the referendum result is that it is all about immigration. This is not a view shared by most of the Conservative Brexiteers in parliament — for most of them sovereignty is the issue — but both May and Cameron before her have seen it as primarily an immigration debate. This goes a long way to explaining why both prime ministers have come back from Brussels with such botched deals. The difference between them is that for Cameron this was merely his interpretation of what was aggravating public opinion about the EU and not his own personal position; May is undoubtedly a true believer in restricting immigration. The Norway option thus is an unlikely one for the current Prime Minister to countenance — although a new Brexiteer Tory leader could embrace it as a temporary solution and gain majority support for it.

Finally, the government could state that, while it is ramping up preparations for a no-deal Brexit, it will continue to pursue the Withdrawal Agreement while seeking tweaks from Brussels. The odds must favour the latter course. Whatever choice May makes, more letters asking for a confidence vote in her as Conservative party leader will be generated. They would just come from opposing wings of the party. An internal confidence vote among Tory MPs must be highly likely at this stage. 

A second referendum is the least likely consequence of the Withdrawal Agreement being defeated. If the Speaker allows such an amendment to be put during the meaningful vote debate, the proposal is already likely to have been defeated in the House before the main resolution has been voted on. Even if there were a parliamentary majority for a so-called “Peoples’ Vote”, it could only be implemented if there was a pro-second- referendum government. Such a referendum would require primary legislation and without government support, and the necessary programme motion timetabling the debates on the Bill, it is simply impossible to get controversial legislation onto the statute books. Governments can lose legislation they support, but in the British system it is close to impossible to get legislation a government opposes onto the statute book.

May would not survive as leader of the Conservative Party if she changed her mind and endorsed a second referendum — and, what is more, there is no sign that she has any appetite for doing so. In a Conservative leadership election, any candidate who declared that they would support a second referendum would have zero chance of being elected. If Jeremy Corbyn became Prime Minister before March he would seek an extension of Article 50 to delay Brexit while negotiating his own “People’s Brexit”. While the final deal would probably be remarkably similar to what May has negotiated, Corbyn would not be pursuing a referendum but arguing that he had a mandate to renegotiate Brexit. The most imaginable scenario leading to a second referendum is if a Brexiteer Tory such as Boris Johnson became Prime Minister — and then thought that the only possible way forward would be holding a second vote. It is, however, a very remote possibility — they would have ruled out just such a move during their own leadership campaign and would immediately be denounced as a traitor to the Brexiteer cause.

Slightly more likely, but still an outside possibility, would be an early general election fought around Brexit in January or February. Under the Fixed Term Parliaments Act the next election is scheduled for May 5, 2022. For an early election either at least 434 MPs out 650 have to vote for it (this is what happened in 2017, but is extremely unlikely to happen now as the vast majority of Conservative MPs have no desire for an early election), or the government has to lose an explicit vote of no confidence in the House, and no new government wins a vote of confidence within two weeks.

The Labour Party will certainly table a motion of no confidence after May loses the meaningful vote. How the voting on this motion goes depends on what the government has stated its next step will be. Continuing to pursue some version of the Withdrawal Agreement would make it very difficult for the DUP to support the government. If the DUP were to abstain on such a vote, the government would win it with a majority of three, or more likely five — depending on whether Herman supported the government — provided all Tories voted in support. Matters are likely to be more complex. Some Tories are very likely to withhold their support, with the notion that a more amenable Conservative government would emerge in that two-week period. A handful of opposition MPs might support the government, regarding a Corbyn government as a greater risk than anything May and the Withdrawal Agreement represents.

On the other hand, if the less likely option happened and May announced that she was going for a no-deal Brexit she could rely on the support of the DUP, all the Tory Brexiteers and up to five Labour hard Brexit supporters for whom the issue is so important that they would be willing to end their political careers over it. This would ensure a comfortable government majority of 23 or so — if all Tories remained onboard. But Conservative Remainers such as Anna Soubry, Dominic Grieve and Heidi Allen would probably find it impossible to vote for the government. If they actually believe their own rhetoric about what a hard Brexit means, they would indeed be quite wrong to vote for a continuance of a government which they claim is heading for national calamity. If under this scenario 12 or so Remain-supporting Tories voted against the government it would fall; it would require more to do so if most only abstained. It seems unlikely that there are sufficient committed hard Remainers on the Tory benches to bring down the government.

If the May government lost a vote of confidence in either scenario then another Tory leader — an agreed candidate as there would be no time to hold a leadership election — winning a second vote of confidence is the most probable outcome. David Davis seems a likely option. He is a Brexiteer, at 70 in December likely to be a short-term Prime Minister and thus acceptable to younger challengers, and he is less frightening to Remainer Tory MPs than a Boris or a Jacob Rees-Mogg.

Nevertheless, once a government loses a confidence vote it will be very difficult to manage the process and more by accident than anything else we could fall into an early general election. What is sure, if such an election were to be held, is that it would be confused and break our party system. There would undoubtedly be Conservatives standing against each other on pro- and anti-deal tickets, and the party would be split, perhaps irrevocably. It is also a fairly sure thing that the much-hyped new centre party would launch, running on an anti-Brexit platform, and putting forward a well-funded slate of candidates in some form of alliance with the Liberal Democrats. An early election would change the party landscape in the UK to a greater extent than it has shifted for 100 years. That is the strongest reason why it is unlikely and why so many MPs, especially but not exclusively on the Tory side, will be doing their utmost to prevent it.

May’s chances of getting through some version of her deal become much stronger once both a general election and a second referendum have been ruled out — and once MPs collectively accept that. Under those circumstances, many more Labour MPs will be tempted to support her deal as their preferred options will not be on the table and a no-deal Brexit — for which they fear being blamed if they have blocked the alternatives — will otherwise be the default position. The same logic will apply to the Tory hard Remainers. The EU will also have to think hard about how many concessions it is willing to offer to May to enable her to get her deal approved.

If the EU offers little or nothing that May can present as a compromise we are probably heading for a no-deal Brexit. There clearly is no parliamentary majority for it — but it remains the default position if nothing else can be approved. It is more probable that the EU will be able to offer just enough for May to be able to push through a version of her deal once the other options have been ruled out.

Where are we likely to be in early 2019? In order of likelihood I would suggest we will be heading for: a version of the May deal; a no-deal Brexit, either under May or more likely under a new, interim, Tory leader; the Norway option and EFTA membership under a new Conservative Prime Minister; a general election; and, least likely of all, a second referendum. It won’t take long for me to be proved right or wrong.

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