9 May 2019

A month has passed since the EU agreed to the 31 October extension at their emergency meeting in Brussels. Despite European Council Donald Tusk’s appeal, “please do not waste this time,” the UK seems to be little further forward in reaching a decision. The Easter recess gave Westminster a short respite from the Brexit debate, while the local elections last week provided a short burst of normal politics. Despite Downing Street’s suggestion that the local election results gave “added impetus” to the need for a deal, the prospect of a rapid resolution to the Brexit impasse remains unlikely. The Government’s cross-party talks with Labour are continuing, and are apparently being taken seriously by both sides, but there are many reasons why they may not succeed. Both parties are being pulled in two directions. Theresa May needs to carry on with the talks to justify staying in office, but in pursuing this option she risks losing more support in her own party – and not just from the Brexiteer wing. The Labour leadership also has many reasons to be cautious about facilitating a “Tory Brexit,” but the longer the stalemate continues the more likely the party’s divisions over a second referendum will be exposed. Now that the UK’s participation in the European Parliament elections has been confirmed, questions of party positioning and strategic advantage will be important factors in the way the parties approach the Brexit deal.

 

The ratification process

 

The Government’s new aim is to ensure that ratification takes place before the new MEPs take their seats in July – or, failing that, before the summer recess. The ratification process still requires the Government to pass a meaningful vote and the Withdrawal Agreement Bill to bring the provisions of the deal into effect: it is possible that this process could be accelerated, but even if a cross-party deal is secured there are difficulties ahead. MPs on both sides of the debate will have an incentive to delay the ratification process until after the elections have taken place. The cooperation of the upper House cannot be taken for granted, given that the Lords are self-regulating and have a Remain majority. Added to this is the likelihood that the WAB will itself be a controversial document. It will give legal effect to provisions such as the backstop and supremacy of EU law during the transition period, and has been described as “dynamite” by one official. MPs may demand a longer period of scrutiny than the Government initially offers, and there is the chance that some MPs who have previously supported the Government in the meaningful votes will not vote for the Bill at all its stages. Most importantly, there is no guarantee that a cross-party deal would produce a sustainable majority for any outcome that has been agreed. The Spectator reports that the Government is working on the assumption that 160 Conservative MPs would vote for a deal containing a commitment to a Customs Union – meaning that 160 Labour MPs would also have to support the deal to ensure its passage through the Commons. Even if Labour MPs are whipped to vote for the deal, securing that many votes would be a tall order. Meanwhile, the Government has said that it will offer further indicative votes to Parliament on the way ahead if a formal deal with the Labour Party is out of reach, but this could also be part of an informal bargain with Labour (especially if it allows the party leaders to avoid a decision on a referendum by letting the Commons decide).

 

European Parliament elections

 

Now that they are certain to go ahead, the European elections could well inject another element of uncertainty into the process. Recent opinion polls have shown The Brexit Party, led by Nigel Farage, performing strongly, and it is possible that Farage’s party could emerge as the largest party just as UKIP did in 2014. If the party outperforms the Conservatives, it is likely to strengthen the position of May’s internal party critics.

On the Remain side, the smaller parties –  the Liberal Democrats, the Green Party and the newly-formed Change UK: The Independent Group – are struggling with messaging and will be competing for votes. The Liberal Democrats and the Green Party have taken some hope from their performance in the local government elections last week, and it may be that these familiar parties will gain the initiative over Change UK as the European elections draw near. But the results last week may also be explained by a reaction against the two-party status quo. As Michael Thrasher and Colin Rallings have pointed out, for the Liberal Democrats and Greens, “local campaigning and a protest against the impasse at Westminster seemed as much of a recruiting sergeant as their unashamed policy in favour of a second referendum.” A wider field of parties in the European elections may still see fragmentation of the Remain vote. Much depends on the position of the Labour party, which faces a strategic dilemma. Labour Remainers, including their current MEPs and candidates, had hoped the party would position itself as the Remain party – or indeed the “Stop Farage” party – by coming out strongly for a second referendum, but it seems the Labour leadership is not yet adopting that position. Regional variations in the party’s performance could be important, and if Labour suffers badly in “Leave” areas – as in the local elections – this could detract from success in Remain areas elsewhere. Pragmatists in the party may take away different lessons from the elections than Labour’s Remainers.  Labour will also be factoring in the upcoming Parliamentary by-election in Peterborough, a leave area, which will be taking place on 6 June.

Although there is a temptation to see the European elections as a proxy referendum on Brexit, it is unlikely that they will bring clarity about what the country thinks. Low turnout is normal at European elections, and the divisions within the two main parties will make it hard to interpret what the results mean. Even if Farage’s Brexit Party tops the poll, it is possible that parties advocating a softer Brexit or a second referendum win a majority of votes. Because of her weakened position, Theresa May will probably be unable to make a convincing case for the deal that is actually on the table. The risk therefore is that the factions within the parties see the European elections as another opportunity to advance their preferred Brexit outcome, making compromise on the deal more difficult.

Conservative Party leadership

 

Another area of uncertainty concerns Theresa May’s tenure as Conservative Party leader. Having already said she expected not to lead the Conservatives into the next General Election, the Prime Minister has signalled that she is prepared to make way for a successor if the Withdrawal Agreement is passed. Despite winning a vote of confidence in her leadership in December – which, under the party’s leadership rules, secures her position for a year – there is no doubt that many in the Conservative Parliamentary party would prefer a new leader to be in place sooner rather than later. The National Conservative Convention is expected to hold an Extraordinary General Meeting on 15 June for the purposes of holding a No Confidence vote in May’s leadership of the party. Such a vote would not be binding, but a motion of No Confidence, if passed, would put further pressure on May to bring forward her resignation. The Chairman of the backbench 1922 Committee has reportedly asked May to set out a “roadmap” for her departure irrespective of progress on the Brexit deal, while the Committee’s executive is again considering a rule-change which would allow the Parliamentary party the opportunity to hold a No Confidence vote earlier than the current rules allow.  For the moment, the open critics of May’s leadership are coming from the Brexiteer wing, but if the party’s performance in the opinion polls worsens or if the party does very badly in the European elections, May could come under increasing pressure from all sides to bring forward her departure. The Government has already seen a record number of ministerial resignations, and seems to be in a semi-permanent state of reshuffle. An irretrievable breakdown in the cross-party talks with Labour would make it very difficult for May to justify continuing in office, especially as the chances of a General Election would then go up. Ultimately, the Cabinet could force a leadership crisis with the threat of further resignations, or by making a united request for her to step aside.

Would a change in leadership make any difference? From the Conservative Party’s point of view, there is a danger that a leadership election splits the party or opens up an unrealistic debate about Brexit options. The leading Brexiteer candidates are expected to pitch for the leadership on a “Re-negotiate” platform which risks causing further splits in the party, and it is not certain that such a candidate would get through the Parliamentary stages of a leadership campaign – or that the party is in a position to win a General Election in such circumstances. A leadership contest would use up valuable time during the extension period – possibly as much as two months if a full contest consulting the party membership takes place. The risks inherent in the process of replacing a sitting Prime Minister explain why the party has not already done so. On the other hand, normal party-political considerations still apply, irrespective of Brexit. Even a “continuity May” candidate might have a moment of opportunity to impose party discipline and restore collective responsibility.  Equally, a Brexiteer could be in a better position to sell a cross-party compromise, if that is what the Parliamentary arithmetic demands. Paradoxically, the uncertainty over May’s future makes it harder for her to persuade Parliament to pass the Withdrawal Agreement, which in turn would facilitate an orderly departure. Labour, the DUP and other parties might have more confidence agreeing to a deal once the intentions of a new Prime Minister become clear.

 

Confidence and Supply

 

If Theresa May continues as Prime Minister beyond the European elections, there are still a number of flashpoints where the Government’s existence may be threatened. Although the Confidence and Supply agreement with the Democratic Unionist Party (DUP) is still in place, it is due to come up for review at the end of the current session of Parliament. For now, the Government is prepared to prolong the current session for as long as possible (there is no limit on the length of a session) but Prorogation might be unavoidable if the WAB fails at any of its stages. The Government would then need to introduce a new Queen’s speech setting out its legislative programme for the new session, which is subject to a vote in the House of Commons. Losing a vote on the Queen’s speech could be seen as an effective vote of No Confidence in the Government.

As for the DUP, the party’s position has been that it will continue to support the Government for as long as the Withdrawal Agreement is not passed, but is unclear whether it is prepared to withdraw confidence in the Government if the Agreement is passed. It cannot be assumed that the party would automatically want to avoid an election. Again, much will depend on the DUP’s performance in the European elections. The sacking of former Defence Secretary, Gavin Williamson, who was the DUP’s point of contact with the Government, cannot have helped. Equally, the party has kept open the option of working with a new Conservative Prime Minister and the Foreign Secretary, Jeremy Hunt, has spoken of the need to re-build the relationship with the DUP if the current cross-party talks fail.

Not everything depends on the DUP, of course. The Government is also vulnerable to defections from the Conservative benches, whether from the Remain or Brexit wings of the party. On the other hand, the emergence of Change UK gives the Government some room for manoeuvre. The interim leader of party, Heidi Allen, has said they want to avoid an immediate General Election, and will not support a no confidence motion.

Finally, if a cross-party deal with Labour is secured, the Government will likely need some assurance that it will not face a confidence challenge until the Withdrawal Agreement is ratified. A temporary confidence and supply arrangement between the Conservatives and Labour would be unusual, but an informal arrangement could be made dependent on the promise of a General Election before the negotiations on the future relationship begin.

Last chance for the Withdrawal Agreement? 

 

The pressure of time means that the Government must approach the upcoming period with purpose and determination to get Brexit resolved, but ultimately the success of the Withdrawal Agreement may be a matter beyond its control. The Labour party could be in a position to decide the fate of Brexit, but the party leadership clearly has competing influences to consider. Short of a formal agreement with the Government, there could still be a sufficient number of Labour MPs who are prepared to endorse a deal as a way out of the stalemate. Ultimately, there is an obligation on MPs from all parties to think about the implications for the reputation of Parliament and the UK’s standing in the world from continued paralysis on this question. Time is also of the essence. As former Downing Street advisor Nikki Da Costa has pointed out, if the WAB is introduced in the week after the European elections, there would only be four weeks for the ratification process (one and a half weeks for each House, and then time for “ping-pong”) if the 30 June target is to be met. The Parliamentary timetable can be amended if necessary – beyond the expected date of the summer recess – but there is no point in having Parliament sitting unless there is a prospect of passing with Withdrawal Agreement Bill. As things stand, there are really only two windows of opportunity for Parliament to pass a deal: in June or in September. Time must also be allowed for the European Parliament to complete the ratification process on the EU side: the first opportunity for the new Parliament to do so would be in July, although the current Parliament could be recalled before then in exceptional circumstances. After the summer recess, the party conference season starts up and the Article 50 deadline looms into view again.

There is an assumption in the UK that the deadline, having been extended twice, could be extended a third time. This cannot be taken for granted, especially if Wolfgang Münchau is correct to report that the consensus in the European Council is shifting towards a harder line on Brexit. The outcome probably depends on how the UK uses the current extension period, and whether the current Prime Minister (and current governing party) is still in place. Some Brexiteers will hope that the prospect of a harder EU position on the deadline can be used as a route to a No Deal Brexit, or that internal EU27 debates on the matter will persuade Ireland to compromise on the backstop. However, it should be remembered the UK retains the ability to revoke Article 50 and a last-minute revocation cannot be ruled out: it is possible that as the deadline draws near the anti-No Deal majority in the House of Commons could assert itself and compel the Government to take this course. An earlier intervention by backbenchers, demanding a further round of indicative votes before the Government offers it, cannot be ruled out either.

Only a General Election can change the Parliamentary arithmetic, but it cannot be assumed that this would make any of the Brexit options any easier. Instead of being a “Brexit election,” a contest at this stage is as likely to revolve around domestic political issues and the question of competence of the two main parties. For MPs wishing to avoid a General Election, a referendum may therefore become the preferred way out of the current stalemate.

Ultimately, there are still only three Brexit options – no Brexit, No Deal or the Withdrawal Agreement as it stands. For the time being, supporters of each of these options see no reason to back away from their current position. Further debate on process will not resolve this difficulty. There is only a very limited opportunity to reset the Brexit debate, and a very strong risk that the Parliamentary limbo will continue for some time to come.