Much Ado About Everything No 15: Brexit — May-be, May-be Not

Amid increasing uncertainty, the key to what happens next may be the ECJ's ruling on revoking Article 50.

In one sense, things have moved on in the past 24 hours or so since Prime Minister Theresa May postponed the vote previously set for today on her exit deal with the EU, ie Mrs May is off to see key leaders in Europe today. But, overall, the only thing which has really changed in the immediate past is the ECJ ruling that the UK can unilaterally withdraw its notice to leave, ie revoke Article 50 — which, I think, also means suspending the notification to extent the period before the UK leaves beyond 29 March. This may turn out to be the most important development since Mrs May first concluded her deal with the EU27 and I shall come back to it.

Mrs May does at least appear to be being realistic in her immediate quest for a 'better' deal, ie she is not trying to get the Ireland backstop scrapped — or, indeed, any part of the actual draft treaty changed. Rather, she appears to be restricting herself to trying to tweak the accompanying political declaration in an attempt to mollify some of the less strident critics of the deal on the table in the hope of getting a vote through parliament before the current apparent deadline of 21 January. My best guess is that the EU27 will agree to cut her some slack on the political declaration; but I very much doubt that this will be enough of itself to see her home and dry.

So, what are her options once the 13 December European Council has had its say? Assuming, that is, that leading Brexiteer Jacob Rees-Mogg doesn't get the 48 signatures required for a vote of confidence in herjust yet — and he is still reportedly 22 short of that mark — and then get over half the Parliamentary Conservative Party (PCP) to vote with him.

[Update — 12 December: It does now seem probable that the Brexiteers either already have their 48 letters or, if not, will do in the next 24 hours. We could therefore see a vote of no confidence in Mrs May as early as Monday 17 December. BUT it is not at all clear that the Brexiteers will secure the necessary majority among the 315 members of the PCP (ie 158) which would force her to resign as party leader and prime minister.

If they do succeed — or (less likely, in my view) Mrs May survives the vote but decides to step down anyway, with immediate effect — there will then be a leadership contest, which will take weeks, in circumstances where there is no faction in the PCP strong enough to push its candidate (whoever s/he may be) into a strong position. Nevertheless, a 'top two' would emerge in due course to be put to the party membership at large, which would almost certainly back a 'true Brexiteer', assuming one of the two was such. Meanwhile, the clock ticks down towards 29 March — unless, of course, Article 50 is suspended.

One other point: it appears that even if the Brexiteers cannot force a vote of confidence increasingly unhappy Remainers in the PCP may try to unless Mrs May holds a vote on her deal before Christmas.]

1. Go to a vote

No matter what Mrs May manages to extract from the EU27 this week, this still looks like the "damn the torpedoes" option in that her best hope would likely be not being as heavily defeated as she would have been today (when not only the opposition parties but possibly as many of 100 of her own party looked set to vote against). Last week, the prevailing wisdom was that she could survive a defeat by around 50 votes but not 100. Assuming this is correct and taking into account market reaction yesterday, it may be worth the risk of going to a vote IF she can narrow the margin of defeat on the following basis:

  • The bill is voted down;
  • Markets tank;
  • Mrs May negotiates a few more tweaks to the political declaration with an EU27 now genuinely worried about the seemingly increasing probability of a hard Brexit; and,
  • Mrs May gets the treaty ratified by the UK parliament at the second attempt.

When I was in London last month quite a few of the experts I spoke to favoured a scenario along these lines; but I suspect that fewer do now after the turmoil in parliament this past week. And see point 3 below.

2. Hard Brexit

I don't necessarily agree that the probability of a 'no deal' exit has gone up, as market reaction yesterday suggests to be the case; but it is still a non-negligible probability.

3. Suspending Article 50

This is now clearly a political, not legal, decision. But I don't see the point of doing it unless it is coupled with either a general election or a second referendum. Nevertheless, Mrs May could be forced into going down one or other of these tracks whether she likes it or not now that parliament has secured a significantly greater say in the event that it rejects the deal on the table.

Mrs May ought not to survive such a humiliation; but given the number of her own red lines she has crossed already and the lack of an obvious successor who would have any chance of holding the party together she might. Neither the vast majority of the PCP nor the Northern Irish DUP on which her majority depends wants a general election; so a second referendum appears the more likely.

The technical problems inherent in a second referendum per se are well documented but, in principle at least, this doesn't mean it can't be done (and there does appear to be swelling momentum behind it). But the biggest problem for Mrs May (or her successor were her party to oust her) is that 'simply' suspending Article 50 would likely openly and decisively split the party. This, in turn, may well open the door to the Opposition forcing a general election after all.

On the other hand, we may see a second referendum. But, as opinion polls tend to confirm, there is significant uncertainty over what the outcome of such might be no matter what options are on the ballot paper and how they are phrased.

Alastair Newton