Coronation (headless) chicken

May should go in mid-April. But attempts to appoint a successor uncontested will only stir further chaos in the hen coop.

  • On April 12, Britain is due to move out of a short extension either into No Deal (which is unlikely) or a long extension (which is likely).  In the latter event, Theresa May should stand down on that date as Conservative leader, but stay on temporarily as Prime Minister.  This would allow the Party to hold a leadership election with both Parliamentary and membership stages, which would be impracticable before mid-April.  The new leader would then succeed May as Prime Minister in, say, mid-June.
  • If May gives such a commitment to her Cabinet on Monday, and makes it public later that day, her deal stands a better chance of being approved by the Commons this week.  But endorsement would still be far from certain.  Such a pledge might not persuade the DUP to back it.  And even if it did, the “Spartans” will hold out.  If Opposition MPs hold fast too, the agreement will still go down.  Whatever you view of the deal, this is worth bearing in mind.
  • Now suppose that May instead agrees to quit immediately.  Today’s papers are full of the names of potential successors as Prime Minister, including David Lidington, Michael Gove and Jeremy Hunt.  How would a handover work?  Is it suggested that May stay as Party leader until after a post-April 12 leadership election – thereby allowing a replacement, temporary Prime Minister to serve until that contest produced a new leader, presumably at some point in early-to-mid June?
  • If so, would a new Prime Minister be prepared to take office under that constraint?  Is Hunt, Gove, Lidington or anyone else really prepared to serve in office for less than twelve weeks?  If not, is it proposed that the person who might lead the Party into the next election is selected unopposed?  We name 19 potential leadership contenders in our regularly monthly Next Tory Leader survey question.  There are doubtless others.  Is it seriously suggested that all but one would be prepared to stand aside?
  • Next, Conservative MPs.  Would they, too, be able to rally round one person?  Consider the names most in the frame.  Lidington would be unacceptable to most hard Brexiteers.  Boris Johnson unacceptable to many softer ones.  Gove and Hunt would be in danger of falling between two stools.  Too pro-hard Brexit; too pro-Soft Brexit; pro-Remain; unpopular with members; unpopular with voters; too tained, too fresh – the objections to any aspirant are legion.  What is meant to bring clarity would breed confusion.
  • Next, Party members.  May was elected unopposed after Andrea Leadsom’s withdrawal from the last contest (in effect).  Her leadership is not ending well.  Why should activists want to see her successor appointed – “crowned”, as Tory MPs like to say – rather than elected after a proper contest?  If it didn’t work out last time, why would it do so this time?  Would such an outcome even be legal under the terms of the Party’s constitution?  Above all: what difference to Brexit policy would this new leader make?
  • Next, the Palace.  Monarchs like coronations – but why should the Queen assent to this one?  She might well say to a departing May: “Now, look here.  You tell me that your Parliamentary Party will accept Mr Lidington as your successor.  But I read gather that some Tory MPs will not support him.  Why shouldn’t I send for Jeremy Corbyn instead?”  The Queen has steered clear of party political controversy for the length of her distinguished reign.  Why should she now be dumped right in the midst of one?
  • Finally, May herself.  What if she simply refuses to go? She cannot be challenged in a leadership ballot until the autumn.  Both the 1922 Committee and the whips have pointed her towards the door.  As we write, she is declining to walk towards it.  If her Cabinet unanimously advises her to quit – and we’ll believe that when we see it – she might be left with no alternative.  But until or unless that happens (or Philip May steps in), she will be hard to winkle out.
  • This site is not set on keeping May in office.  We urged change during December’s leadership challenge.  As we say, we want her to pledge to quit as Party leader, and to depart on April 12 – paving the way for a full leadership contest.  Conservative MPs have had enough of her, too.  No group or faction trusts her.  She has lost the confidence of her Cabinet and whips.  Her disastrously misconceived attack on her own MPs appears to have sealed her fate.
  • None the less, our message to them this morning is: be careful what you wish for.  A post-April 12 Prime Ministerial departure works.  A pre-April 12 one doesn’t.  The Conservative Party is like a man stuck in a swamp.  If he keeps his head, he can work his way out of it.  If he loses it, he will be sucked into the depths.  Lidington Now, Gove Now, Hunt Now, Anyone Now – to attempt anything like this is to flail and thrash about. It will only drag the Government deeper into the swamp which threatens to drown it.

The price May is paying for survival is powerlessness

She yesterday achieved the outcome most likely to prop her up – at least for the time being. But Cooper, Letwin and Bercow are waiting in the wings.

Theresa May succeeded yesterday in achieving her aim.  Of the three Brexit outcomes that could have emerged from the EU summit, she has gained the one most likely to meet her core objective – survival as Prime Minister, at least for the moment.  There is not enough time to hold a leadership election before April 12, the deadline now agreed if her deal hasn’t passed the Commons by then.  And there is no sure alternative means of finding a replacement.  A short extension best suits her abiding preoccupation: to hang on.

Of the other two possible outcomes, a long extension would have opened up the time and space for a leadership challenge.  No Deal might have kept her in office for the time being, since the response from her Ministers and Conservative could have been: all hands to the pumps.  But it might not have done – since it would also have created that space and time.  Furthermore, it could have sparked Ministerial resignations, defections to the Independent Group, and a perilous confidence vote.

In a strange kind of way, one can’t help admiring May’s ducking and diving, her evasions, her twists and turns, her deflections, her gnomic silences – the sheer inventiveness and tenacity with which she hangs on. Sometimes, she has threatened no Brexit.  At other times, such as earlier this week, she has threatened No Deal.  On Wednesday, she hurled a bucketful of verbal paraffin over just about every other MP in the House – including her own Parliamentary Party.  Late yesterday, she sought to sponge the oil from their hair and enraged faces, offering words as close to an apology as she is probably capable of speaking.

She has promised that Britain would leave the EU on March 29 over a hundred times.  She has led Tory MPs into the lobbies to vote in principle not to do so.  She has U-turned on a general election in 2017, transition migration, transition extension, putting her deal to the Commons in December, a regulatory border in the Irish Sea: we cannot bear to replicate the list in full.  Her latest about-turn, characteristically implied rather than asserted, is that we may now participate in this spring’s European elections, after all.

So evasive have been her dealings, so profuse her positions, that she was bound sooner or later to stumble across one that would work.  So it proved yesterday.  Like the majority of Conservative MPs, like the National Convention, and like the local Associations which have lined up behind the last, we have always argued that one has to be prepared to walk away from a negotiation to get a result.  The threat of No Deal should always remain on the table.

We believe that May was bluffing when she hinted earlier this week that she was prepared to countenance Britain leaving the EU with No Deal on the date still written into law.  In her elliptical way, she has pushed the idea at pro-Brexit Ministers.  She did the same to EU27 leaders yesterday.  Some of them may not have believed her.  But she seems to have sowed enough doubt to get them collectively to back off.  Emmanuel Macron didn’t veto extension.  (Neither, please note, did Viktor Orban or Matteo Salvini.)

How much more would have been achieved had she played that card at the right time and place – in other words, right at the start of the negotiation!  If Philip Hammond had been moved in the botched 2018 shuffle, as we urged just before it took place.  If a Minister for No Deal had been appointed then (ditto).  If preparations had been ramped up.  That lost chance is a tragedy with a double edge.  For May has not only threatened No Deal late in the day, but is unlikely to be able to do so again.

This is because her tactical win is wrapped in a strategic defeat.  As we write, an extension motion will presumably pass the Commons, perhaps with predominate Labour support.  But her deal is in no position to do so at a third attempt, assuming that the Speaker allows it to be put in the first place.  If it can’t win next week, it won’t be put: that surely is the logic of setting a new deadline, if it doesn’t pass, to April 12.  On paper, the option of No Deal will still exist then.  In practice, it is likely soon to be suffocated.

For with little likelihood of the deal passing; with infuriated Remainers, distrustful Leavers, an alienated Whips Office, and a Chairman of the 1922 Committe who has reportedly told May to go, she is Prime Minister In Name Only.  Yvette Cooper and Oliver Letwin are ready for a third bite of the cherry.  Their bid to take over the negotiation, in effect, failed in January by 23 votes.  A revived push at it from Hilary Benn fell last week by only two. It is very hard to believe that it will not be successful in some form a third time. The motion to revive it is already tabled.

The Speaker will ensure that it gets a fair wind. (His latest commitment to precedent is to revolutionise S024 motions – or so it appears.) The Second Referendum lobby is dropping its pretence of wanting a further vote, and is gradually revealing what has been its real aim all along: revocation.  Letwin/Cooper are more likely to steer MPs towards Customs Union membership and perhaps Single Market membership, too.  The House may not have settled on either by April 12.  But the Commons would then surely vote for another extension.

On second and final thoughts, we apologise for offering certainties, or seeming to.  Anything could happen yet.  Pro-Remain Ministers could quit.  So could Leave Ministers.  The ERG could go on strike, and refuse to vote.  The Whips’ Office could give up any attempt to stop them. Leadership candidates are raising money, announcing teams.  No Deal could somehow slip through the cracks.  But the drift is unmistakable.  May endures.  But the price she is paying for survival is powerlessness.

Iain Dale: Zombie May and her Zombie Cabinet

Leadsom seems to be the only one with lead in her pencil. All she needs now is to grow big fat hairy balls.

Iain Dale presents the evening show on LBC Radio and is a commentator for CNN.

Another astonishing week in Brexitland. But I suspect we’ve seen nothing compared to what is to come over the next seven days.

Sadly, we have a political leadership which is wholly unfit to be described that way. We have a Prime Minister who deludes herself that she is showing leadership when in fact she is doing the opposite.

She chairs a Cabinet, but refuses to give it any idea of what she believes, or where she wants to take the country. And we have a Cabinet that is so devoid of bollocks that it allows her to do what she likes without fear of consequence. And she lets them do it. It’s a Zombie Cabinet, led by a Zombie Prime Minister.

Her speech in Number Ten on Wednesday evening was one of the most embarrassing of her premiership, and there have been a fair few to rival it for that particular accolade. It achieved the exact opposite of what she presumably wanted. At times, she even channelled Donald Trump, which was never going to end well.

By trying to pitch the people against Parliament, she did something very dangerous – something I cannot remember any other prime minister doing. The fact that she had already done it that day in Prime Minister’s Questions, and then repeated it seven hours later, made it even worse.

She also achieved something else unique. She alienated many of the MPs she needs to win over to get her third “meaningful vote” through Parliament next week. These include Labour MPs and members of the ERG. It takes a lot to bind those two groups together, but Theresa May achieved it.

I do not understand how that speech ever came to be made. Did none of her advisers raise a hand, and point out the dangers of taking the approach she did?

But in the end, the buck stops with the Prime Minister – she is after all responsible for what comes out of her mouth – but speeches like that go through multiple drafts, and are run past a whole raft of people. Yet no one seemed alert to the downsides and dangers of what she was about to say. Quite incredible.

– – – – – – – – – –

I’ve copped quite lot of criticism for saying that I think May’s leadership has run its course, but I’ve got broad shoulders and people are free to say what they like. Margaret Thatcher inspired me to join the Conservative Party when I was 16. I devoted a large part of my life to promoting the Conservative cause in one form or another. It was my dream to be a Conservative MP, and although I never achieved that aim, I still continued to be an activist for the party until I joined LBC, when it became inappropriate to continue with party political activities.

I believed May was the right choice to succeed David Cameron, to take us to Brexit and conduct negotiations with the EU. I was wrong on both counts. As I said on Any Questions last Friday, this is the most calamitous British government since Lord North lost America. Hyperbole maybe – but not much of an exaggeration, surely.

Brexit means Brexit, and we’re going to make a success of it, she said. Ad nauseum. We will leave on March 29th, she said. Ad nauseum. We’ll be leaving the Single Market and the Customs Union, she said. Ad nauseum.

Well, Theresa May’s form of Brexit does not mean Brexit. At the time of writing, we won’t be leaving on March 29th. If her deal goes through we won’t be fully leaving the Single Market or the Customs Union. It’s all going terribly well, isn’t it?

– – – – – – – – – –

Up until now, I have always thought that were there to be a general election, the Conservatives would win a majority. No longer.

The prospect of a Corbyn government is nearer now than at any time during the last three and a half years. It won’t be that he gets many more votes than he did last time. It will be because Conservative voters stay at home and sit on their hands.

It will be interesting to see what happens in the local elections. Labour’s polling apparently shows that they are not going to do well because people now see them now as the party that backs Remain, and Labour Brexiteers are deserting. We’ll see.

– – – – – – – – – –

Back to the Cabinet. Last week, I wrote in my diary about its supine nature. They’ve been at it again.

On Tuesday, the Cabinet met to discuss what to do about extending Article 50. The Prime Minister asked each of her ministers to give their views on whether we should request a short or a long extension. I’m told that once they have all finished, she said: “Thanks for your comments,” and moved the discussion on to something else.

Not a single one of them apparently raised a hand, and said: “Excuse me, Prime Minister, we’ve given our view, what’s yours?” It was then briefed out that she would be writing to Donald Tusk asking for both a short extension which could be turned into a long one if necessary. The next morning, her entire cabinet was taken by surprise when it emerged she was only asking for a short extension.

This is not Cabinet Government in any meaningful sense. But, given the Prime Minister’s weak political position, it is truly astonishing that the Cabinet continues to allow her to get away with it. Andrea Leadsom seems to be the only one of them with any lead in her pencil at the moment (don’t let that image pollute your mind). Perhaps she will be the one with the big fat hairy balls to tell the Prime Minister, “Enough, and no more”.

Mañana – That in a word is the sum of May’s EU summit statement. Here’s a full text.

The Union and the Government have together kicked the can down the road again – this time with a two-pronged plan.

“I have just met with Donald Tusk following the EU Council’s discussion on the UK’s request for the approval of the Strasbourg supplementary documents and for a short extension to the Article 50 process.

Firstly I welcome the Council’s approval of the legally-binding assurances in relation to the Northern Ireland backstop which I negotiated with President Juncker last week.

This should give extra assurance to Parliament that, in the unlikely event the backstop is ever used, it will only be temporary; and that the UK and the EU will begin work immediately to replace the backstop with alternative arrangements by the end of December 2020.

After a lengthy discussion, the council today also agreed, subject to a successful vote next week, that in order to provide time for the UK Parliament to agree and ratify a Brexit deal, the date of our departure will now be extended to 22 May.

If Parliament does not agree a deal next week, the EU Council will extend Article 50 until 12 April. At this point we would either leave with no deal, or put forward an alternative plan.

If this involved a further extension it would mean participation in the European Parliamentary elections.

As I have said previously, I believe strongly that it would be wrong to ask people in the UK to participate in these elections three years after voting to leave the EU.

What the decision today underlines is the importance of the House of Commons passing a Brexit deal next week so that we can bring an end to the uncertainty and leave in a smooth and orderly manner.

Tomorrow morning, I will be returning to the UK and working hard to build support for getting the deal through.

I know MPs on all sides of the debate have passionate views, and I respect those different positions.

Last night I expressed my frustration. I know that MPs are frustrated too. They have difficult jobs to do.

I hope we can all agree, we are now at the moment of decision.

I will make every effort to ensure that we are able to leave with a deal and move our country forward.”

Would May really be prepared to attempt No Deal? We offer you the Varadkar Test.

If he starts ringing alarm bells over the next few days, the possibility may be real. If he doesn’t – or only goes through the motions – then it probably isn’t.

Insofar as Theresa May now has a coherent Brexit strategy at all, it seems to be to attempt to pass her deal next week with opposition votes, assuming the Speaker lets it return for a third “meaningful vote”.  This means presenting the choice before the Commons as her deal or No Deal.  But would she really be prepared to deliver the latter, or try to?

(Her means would presumably be to reject any long extension offer if her deal was defeated – if her fellow Ministers and Parliament would let her, which is another story.)

This site has a simple test. A No Deal Brexit would cause severe problems for Ireland and, sooner or later, deliver the very hard border that its government has worked to avoid.

So if Leo Varadkar and his fellow Ministers sound alarm bells soon, it will mean that they believe that the Prime Minister is set on No Deal.  If there is radio silence, then they think she will accept a long extension and, in the event of her deal going down for a third time, put a statutory instrument to the Commons which would remove the March 29 date from the EU Withdrawal Act.

It is of course possible that Varadkar and company may call it wrong – for example, by ringing those bells only to find that May eventually accepts a long extension after all.  But it strikes us that the Varadkar Test isn’t a bad one.  After all, he seems to know more about what the Prime Minister will do than members of her own Parliamentary Party.

Alex Morton: Riots, looting, pillaging, yellow vests. France shows what Britain could face if Brexit is blocked.

A new book argues that the country is divided between a metropolitan elite, which rules for its own advantage – and the rest.

Alex Morton is Director of Policy at the Centre for Policy Studies, and was a member of David Cameron’s Downing Street Policy Unit.

In nine days, we are due to leave the European Union with no deal. Parliament has twice voted down the proposed deal. The Cabinet is divided. Party discipline has broken down.  The Speaker is effectively campaigning for Remain.  And Emmanuel Macron is threatening to veto any extension to Article 50.

Mention of France’s President reminds us of the country he governs – which is apposite, because a new book from France casts light on Britain, and reminds us all what is at stake.

Twilight of the Elites by Christophe Guilluy is a more pessimistic French equivalent of David Goodhart’s The Road to Somewhere. Written in 2016, before the country was wracked by riots, protests and violence, it argues that France is suffering from a fatal – maybe terminal – division between the people and elites.

The failure of the French elite

Guilluy, a geographer, argues that his country has seen:

  • Social dislocation and unhappiness.
  • Economic stagnation.
  • A rise in insecurity in every level – both economic in terms of ownership, pensions, jobs, but also cultural in terms of rapid ethnic and cultural change, terror attacks, and crime.

The ruling class of France has failed to create a stable and prosperous country, and has morphed into an Establishment whose rule is difficult to justify on conventional metrics of success.

His main charge against this elite – which may have a familiar ring to British ears – is their hypocrisy. Their bastion, Paris, lectures the rest of the country on being open, yet is a city where the average square metre in housing costs more than 8,000 euros, way beyond most people’s budgets.

He also hits out at France’s equality agenda, arguing that it is designed to allow the children of the rich, whatever their gender, to retain control while feeling virtuous about the open society. There is far less attention paid to slowing social mobility beyond those educated at elite universities, or to the stagnant economy.

This elite condemn those who express concerns over immigration or multiculturalism – yet even more than in Britain, they themselves live far away from areas of low skill migration, Parisian suburbs like Aubervilliers and La Courneuve where nearly eight in ten children are from a migrant background. Even where the elite and migrants live close to each other, they are educated separately.

The divide between metropolis and periphery

Guilluy’s most explosive argument is that all this is a deliberate strategy, created to ignore the more important divide between the 40 per cent living in the largest metropolitan areas and the 60 per cent living in what he terms the periphery, the France of rural areas and small cities, towns and villages.

The political system, he claims, is designed to ignore the fact that the country’s limited economic gains accrue to the top 10 to 20 percent within the large metropolitan areas. This allows the elite to effectively pretend that the large cities are France, and France is the large cities – so communities that are poor, white, old, outside major urban areas, or any combination thereof, simply do not exist.

However, even within the metropolitan areas, Guilluy notes there is increasing marginalisation for those who do not have the right connections, attend the right schools, or capture one of the professional jobs in the city’s core. He notes for all the talk of diversity, those who live in the “sensitive urban zones” – predominantly poor migrants alongside the remains of the white working class – were hit most by the global financial crisis, with unemployment rising in these areas from 16.7 per cent to 24.2 per cent, compared to 7.6 per cent to 9.1 per cent across urban areas as a whole. He also notes that the last thing those who live in these areas, whether white working class or the children of previous migrants, want or benefit from is more migration.

The collapse of the old politics

The result of all this is an incompetent, self-selecting, hereditary and deeply out-of-touch ruling class which is unable to cope with the political challenges France faces. The last desperate claim of those in charge is that they are all that stand between power and the bogeyman of the National Front. Yet Guilluy argues that it is their own failures that have created both the National Front and rising Islamism among alienated migrant youth.

Guilluy does not believe this argument will be enough to save the system, and events appear to be vindicating him. He published his book in 2016, before the old parties of left and right came a humiliated third and fifth in the 2017 Presidential elections, beaten by Macron, Le Pen, and in the case of the Left, by a Corbynite socialist. The most recent polls for 2022 have Le Pen scoring in the mid-forties.

The book cites polling showing that nearly nine out of ten French people believe both that government takes no interest in people like them, and politicians are only concerned with their own advantage. He notes that those who rail against divisive politics are themselves prone to portraying those on the periphery as bigoted and stupid, or to pitting different groups against each other along gender or racial lines.

The lesson for Britain

Brexit has been a huge political convulsion. But it is striking – in comparison to France and other European countries – that the turmoil has not spilled out on to the streets. In France, the Champs-Elysées has been looted and pillaged. Thousands of demonstrators in their yellow vests regularly confront the security forces, and each other. The far right are on the march.

The coming days and weeks in Britain are sure to be dramatic. And probably traumatic.

Britain’s elites need to bear in mind the lessons from France. Almost all of the points Guilluy makes about France could arguably be applied here too. There is a disconnection between the metropolis and periphery – or in our case, between London and the affluent university towns and the rest. And our Establishment is not exactly performing brilliantly under pressure. Brexit is complex but not impossible and people expect politicians to solve complex problems.

Abandoning or reversing Brexit would be the best possible way to make all of these problems worse – to confirm to the millions on Britain’s periphery that they do not matter. And to push us down the dangerous path that France appears to be locked into.

May. Treating you like a fool.

New Labour’s legacy is alive and well. When it trouble, don’t accept responsibility. Instead, blame someone else.

Books have been written about how Alastair Campbell, as Tony Blair’s Head of Communications, tabloidised the entire culture of government.  At the heart of the sweeping-away of old restraints and conventions was a feral instinct.  When in trouble, don’t admit error; don’t accept responsibility: instead, blame someone else.

If Theresa May’s broadcast this evening proved anything, it is that Campbell’s legacy of spin is alive and twitching.  Downing Street will have studied the polling.  As James Frayne has suggested on this site, its overall findings are ambiguous, but there is clearly frustration with the state of Brexit – and recognition among both Leave and Remain voters that it is not being delivered on time.

The Prime Minister thus sought to “frame the debate”, in the jargon of the trade.  So you, unhappy voter, are baffled, even angry?  Well, don’t blame me.  Blame those MPs!  Blame the politicians!  One might almost not have known from that she is herself an MP and the most senior politician in the land.

“I am on your side,” she declared, just in case viewers were too obtuse to get her point.  But May herself is playing as much of a game as any other of her 649 colleagues.  It is same-old-same-old: her chicken game.  Vote for my deal or there will be No Brexit.  Vote for my deal or there will be No Deal (depending on the need of the moment).  Her aim is to mobilise voters against the Commons.

Perhaps she will succeed.  Maybe her broadcast wowed the public  – though we doubt it.  Either way, there is one group of people among whom her gambit will have gone down with like a lorryroad of lukewarm vomit: her own colleagues.  It is a measure of the Prime Minister’s desperation that she no longer seems to care.  Who was it who used to say that “politics is not a game”?

Extension. Never mind the quality, feel the length.

The Prime Minister knows that a short extension is most likely to keep her in Downing Street. Which is why she always likely ultimately to back one.

In the now unlikely event of No Deal, the Prime Minister’s position should be secure, at least for a while.  It would be all hands to the pump, and “no time for a novice”.  If her deal passes through Parliament, Conservative MPs may then experience what one senior player calls a “sugar rush” – a brief sense of relief, well-being and confidence.  In such circumstances, May would have a window to try to dig in.  In the event of a short extension, the Conservative Parliamentary Party will have little motive to remove her, since a leadership election would be impracticable if the negotiation is up against a new spring deadline.

Only a long extension of, say, nine months or longer offers Tory MPs the chance to oust her quickly, through a combination of pressure from the 1922 Committee, the Cabinet and the voluntary party.  Although she cannot be challenged in a confidence ballot until the autumn, there are other ways of expressing no confidence in a party leader, or threatening to.  Some of these fall short of the nuclear option of voting with Labour in a no confidence motion, or at least abstaining.  For example, Conservative MPs could declare that they would table or support a motion to cut the Prime Minister’s salary in half.  This site has heard the option floated.

This background helps to explain why May was never likely to back a long extension.  Downing Street’s warning that it might, issued over the weekend to panic Tory holdouts into supporting her deal, always looked like an empty threat.  As we write, it can apparently be added to her long list of U-turns.  Here is part of that list again: holding a general election in 2017; controlling migration during transition; extending transition; putting her deal to the Commons in December; opposing a regulatory border in the Irish Sea. (Check out her “Road to Brexit”  video where she warned that this would keep Northern Ireland in “…parts of the Single Market. That would would break up the UK economically, and creating new barriers to our own internal market”.)  We can now add the 108 times she said that Brexit will take place on March 29.

At any rate, Number Ten is briefing this morning that “the Prime Minister won’t be asking for a long extension”.  There is a more urgent reason for her to clamber down off the fence she perched on yesterday, when her fellow Cabinet members were left unsure what length of extension she favours.  With the Soft Brexiteers (and Remainers) in favour of a long extension and her harder ones backing a short one, she kept her cards clasped to her chest.  Now she has been forced to move.  A majority of Conservative MPs voted against any extension at all last week.  May is due to address the 1922 Committee meeting this evening.  Things were about to get very ugly indeed.

We suspect that May’s real hope, with tomorrow’s EU council looming, was for an ambigious outcome – a short extension with the possibility of a longer one at the end.  Such an outcome would probably have come closest both to keeping her in place while not risking Cabinet resignations from either group of her divided ministers.  The EU does not seem to favour such an extension, assuming it grants one at all.  Some member states prefer a long extension; others, a short one.  Readers will remember that Olly Robbins forecast the former while drinking in a Brussels bar.  Very soon, we will know if he was right.

Anthony Speaight: Six reasons why we are now less likely to be trapped in the backstop

Whilst it remains the case that the Protocol could conceivably remain in force indefinitely, that scenario has become more theoretical than it was previously.

Anthony Speaight QC is Chairman of Research for the Society of Conservative Lawyers.

To some UK eyes, what was so unattractive about the Northern Ireland Protocol, as originally agreed, was that it could appear to envisage that, whatever the future trading relationship between the EU and Britain, the permanent future of Northern Ireland was in both a single market and customs union with the EU.

The status of the UK was dealt with separately from that of Northern Ireland in Articles 6(1) and 6(2) respectively. Article 1(3) stated that the arrangements of the Protocol were “necessary”, rather than merely desirable, and that such necessity related not only to the avoidance of a hard border, but also inter alia to the conditions for North-South cooperation and the protection of the Belfast Agreement “in all its dimensions”.

Bearing in mind that the EU had not been a party to the Belfast Agreement, and that that Agreement contains no prohibition of customs posts or the like at the border, this created the impression in some that the UK was now agreeing to the EU undertaking a new role almost as guarantor of Ireland’s interests. It was such features, as much as the absence of a unilateral right of withdrawal or end date, which contributed to the concern that the EU or Ireland or both had no real interest in seeking technological or other solutions to avoid a hard border, and that the UK was acquiescing in the consequence of Northern Ireland being permanently in a seamless trading relationship with Ireland.

The joint drafts issued on 11 March went a long way to remove those concerns by six features:-

  • The recital to the Joint Instrument identifies only the absence of a hard border as the required characteristic of the arrangements which would replace the backstop. This weakens the impact of the vague aims of Article 1(3), and, therefore, the scope for the EU or Ireland at a future date to assert that the Protocol is about anything wider than the avoidance of a hard border.
  • Paragraph 5 of the Joint Instrument strengthens the impression of temporariness of the Protocol by introducing a new date, namely a year from the date of UK’s withdrawal, for the conclusion of negotiations of a replacement. If the Withdrawal Agreement is now ratified, that will be considerably earlier than the date mentioned in the Protocol, namely 31 December 2020.
  • Not only is the target date for the conclusions of replacement negotiations thus advanced, but it ceases to coincide with the end date of the implementation period. This emphasises that the agreement of the replacement need not be contingent on the agreement of the future trading relationship. That is significant, and must seriously diminish the scope for the EU or Ireland to claim at a future date that the Protocol envisaged Northern Ireland permanently remaining in a single market and customs union with the EU.
  • The Joint Instrument makes specific mention of study of technological measures for avoiding a hard border. Paragraph 7 commits the parties to the study of inter alia technologies. This is the approach which the UK has been advocating all along. The EU’s response to date has created the concern that it would never look seriously at technologies. There had been no mention of border technologies in the original Withdrawal Agreement or Protocol and it will now be impossible for the EU to escape from detailed study of such.
  • A further feature of reassurance to the UK is that such study of technologies is stated in paragraph 6 of the Joint Political Statement to cover not only existing but also “emerging” technologies meaning the EU will no longer be able to bat back this topic with the refrain that no adequate technology is yet in use anywhere in the world.
  • The Joint Instrument in paragraph 10 explicitly recognises that a replacement arrangement will not be “required to replicate its provisions in any respect”. That must finally knock on the head the scope for the EU or Ireland in future to claim that the Protocol always envisaged Northern Ireland permanently remaining in a single market and customs union with the EU.

Therefore, whilst it remains the case that the Protocol could conceivably remain in force indefinitely, that scenario has become more theoretical than it was previously. In practice, that scenario will arise only if intensive work with a genuine focus on the possibilities of every kind of technology, including those which are not yet in force anywhere in the world, fails to demonstrate a way to avoid a hard border.

Although the EU may be regarded as adept at finding legal technicalities of assistance to its political objectives, it remains a mature and responsible player in the realm of international agreements. The EU would be unlikely to countenance the reputational damage of being seen to resile from its commitments in the six features identified above.

Chris White: Brexit. May’s Commons options after Bercow’s ruling.

There’s little that Conservative MPs can do to stop the Speaker – they don’t have the votes to depose him.

Chris White was Special Adviser to Patrick McLoughlin, when the latter served as Chief Whip, as well as to Andrew Lansley and William Hague when each served as Leader of the House. He is now Managing Director of Newington Communications.

Yesterday, less than two weeks before the UK is due, as matters stand, to exit the EU without a deal, John Bercow threw a large spanner into the Government’s plans by declaring that unless a “new proposition that is neither the same nor substantially the same” as the last Meaningful Vote is tabled, he will decline to allow the existing deal to be resubmitted.  It is unlikely that there will now be a further vote on the Government’s deal this week, certainly before the Prime Minister heads to Brussels to ask for an extension.

In justifying his ruling, the Speaker quoted extensively from Erskine May, the Parliamentary ‘Bible’, citing the long-established precedent that a Government can’t simply keep submitting the same motion again and again, and hope that the Commons will eventually cave in.
This precedent was examined by the Exiting the EU Committee back last year, where the committee asked the Clerk of the Commons, Sir David Natzler, this very question. He gave a very different interpretation:

“You will know there is a general rule against being asked to decide again on the same question in the same Session, but that rule is not designed to obstruct the will of the House. If it plainly was the will of the House, there are ways in which that could happen, yes… If it was exactly the same document and they came back three months later for another bite, I do not think the procedures of the House are designed to obstruct the necessary business of Government in that way in such a crucial thing.”

The Government has been relying on this evidence for resubmitting the existing deal a third time this week. Instead, the Government finds itself having to vault a new hurdle – the Speaker’s judgement – as to whether they will be allowed to have another vote on their deal.  And it appears to be a high bar.  In an answer to Hilary Benn, the Chair of the Exiting the EU Committee, he said that there had to be a “demonstrable change to the proposition”, stating that a change to the Attorney General’s opinion would be insufficient.  Instead, it must be “fundamentally different… in terms of substance.”

There are ways around this ruling, but none of them are easy.  The first would be to see what changes will occur following the Prime Minister’s negotiations at this week’s EU Summit. Adding substantive text to the motion to introduce a technical delay to the end of June, ruling out a further delay beyond that, might arguably be a “substantial change” to the deal, though knowing this Speaker, I wouldn’t like to be certain.

Another option would be to table a paving motion, which would ask the House’s leave to disapply precedent and, were this motion won, the Government could then resubmit the existing deal for a further vote. However, the Government lost the first two meaningful votes on the deal by the largest and fourth largest defeats in modern times.  Alternatively, the Government could introduce legislation, which would change the provisions of the EU Withdrawal Act, as well as enshrining in legislation that Ministers could resubmit a deal as many times as they wished.  Again, this move is unlikely for the simple reason that it is unlikely to command a majority throughout the passage of the Bill, and would take time.

The Solicitor General, Robert Buckland, surprisingly floated the prospect of proroguing Parliament – literally ending the Parliamentary session, launching a new Queen’s Speech and having the next Meaningful Vote as the first item of business.  As Parliament would be starting a new session, the rules on putting the same motion twice in a session clearly wouldn’t apply.  This end would certainly not be achievable before March 29th, requiring the Government to pass an Article 50 extension next week by means of a Statutory Instrument vote. In any event, I doubt whether the Queen would appreciate being dragged into politics in this way, and it would also require the Government to win a vote on the Queens’ Speech, which in turn would also require every Conservative and DUP MP to support it.

None of the options above are attractive, and probably either a substantive change to the deal, or a ‘notwithstanding’ motion are the ways forward to Government is most likely to attempt.

But what irks both the Government and a substantial proportion of MPs is the apparent lack of impartiality from the Speaker.
In his lengthy opening statement yesterday, at no point did he refer to the possibility of a paving motion to disapply precedent.  Instead he attacked the Government on a range of issues, such as pulling the first vote last year, and its discourtesy for trying such a wheeze on.

When challenged by Mark Francois as to whether the same double jeopardy rules would apply to a Cooper-Boles Bill to take control of the Parliamentary timetable, or by Robert Halfon about whether a second referendum vote could be brought back again, he declined to give a ruling, saying that it would depend on the “circumstances”.  So one rule for the Government, and a different one for everyone else…

And this isn’t the first time that the Speaker has done this.  Yesterday, he was quoting supposedly inflexible precedent from 1604, yet back in January I wrote about how he reinterpreted Erskine May to allow an amendment to be tabled by Dominic Grieve, which stated that “If we were guided only by precedent, manifestly nothing would would change”.  That ruling was clearly incorrect.

So the perennial question of whether the Conservative Party has confidence in the Speaker of the Commons has reared its head again. There is little that Conservative MPs can do about this – they don’t have the votes.  Instead the Government, and Conservative MPs, have to soldier on, but with Bills not being debated, and no clear way forward in sight, for how much longer can this go on?