Decision time for Javid and Hunt?

They are very unlikely indeed to succeed May if they nod reluctant assent to any scheme to sign up to Customs Union – which might not succeed in any event.

One can see how it could happen.  David Lidington will mastermind a negotiation with Labour Soft Brexiteers and others.  Michael Gove will provide Eurosceptic cover, and make the case for what emerges on Today and in the Commons.  The negotiation will settle on formal Customs Union membership, or something so close to it as to make no difference.  In the passive way that so defines her, Theresa May will swallow it.  Lidington will tell her that, if she doesn’t, she will lose a no confidence vote, with a tiny band of fixated Remainer Conservatives, perhaps led by Dominic Grieve, abstaining – and so making the difference.  Philip Hammond and other Cabinet Soft Brexiteers are already pushing this outcome and briefing bigger business to this effect.

On this site today, Stewart Jackson sets out the risk of such a course – nothing less than splitting the Conservative Party from top to bottom.  The most crucial Tory actor in the talks with other parties and politicians is thus neither Gove nor even Lidington, but Julian Smith – though he is only one voice in that three-man team appointed for talks.

Such a formal endorsement of a softer Brexit – further concessions to Customs Union membership and new ones to Labour’s social model – would bear other perils, equally dramatic though less profound.  First, even tacking on to it more alignment with the Single Market, thus bringing the proposed treatment of Great Britain into line with that of Northern Ireland, might not satisfy the DUP, which is a Leave party.  Second, Jeremy Corbyn might not swallow this softer Brexit, even if it satisfied his party’s conditions for a deal.  It would cramp a hard left Labour Government’s room for socialist manoeuvre.   And he is temperamentally inclined to oppose the Tories at all costs. Furthermore, a Norwegian option is not compatible with ending free movement, to which lots of Labour MPs are opposed.  One can see how a coalition of the Labour front bench and the ERG might find ways of sinking any such softer Brexit.

This morning, some are claiming that the Prime Minister is about to make exactly such a pivot – with the EU, that “rules-based organisation”, then rewriting the Withdrawal Agreement (which its pro-Remain British fan club currently tells us is impossible) to deliver the compromise.  Others say that she won’t.

The most likely course still is that she hopes to continue her chicken game and suck politicians from other parties into supporting her deal.  Another way of viewing the possible three man negotiating team is that Gove would act as a restraint on Lidington, teaming up with Smith to block any move towards formal Customs Union membership.  The Environment Secretary is not currently a contender for the Conservative leadership, but though he is unpopular in the country he is indispensible in the Commons, as his swashbuckling performance in yesterday’s no confidence debate reminded us.  And he is the most creative head of any Government department.  He is the Government’s most eloquent voice and the Cabinet’s lead swing voter.  A crushing weight of responsibility is descending on his shoulders.

Talk of Cabinet Ministers leads us to the Cabinet Leavers – those who voted for Brexit in the referendum: Steve Barclay, Liam Fox, Chris Grayling, Penny Mordaunt, Andrea Leadsom, Geoffrey Cox.  Unlike Dominic Raab and Esther McVey, they didn’t resign over May’s deal (Barclay of course was not in place then).

There were arguments for and against them doing so.  But it is indisputable that formal Customs Union membership is incompatible with the Conservative manifesto, any prospect whatsoever of deep and meaningful trade deals with non-EU countries, and the Brexit vision for which they campaigned.  A big moment may be approaching for them, too – as well as for those who didn’t back Leave in the referendum but are now sympathetic to a Canada-type future, such as Liz Truss.  She seems to have future leadership ambitions. There’s no doubt at all that Sajid Javid and Jeremy Hunt do so.  But were they to nod reluctant assent to a Customs Union scheme, it is very unlikely indeed that whatever would be left of the Conservative membership would choose either of them to replace May.

Andrew Gimson’s Commons sketch: Nobody is yet saying “Send for Corbyn”

But the Prime Minister had to proceed with caution in the No Confidence debate, in order to arouse no suspicion that she might seek moderate Labour votes.

Jeremy Corbyn is a better Leader of the Opposition than he was, but still does not sound like a Prime Minister in waiting. As he opened the No Confidence debate, he took the precaution of taking few interventions from other MPs.

But those interventions were still sufficient to demonstrate the utter nullity of his European policy. When Alistair Carmichael asked if Labour supports a second referendum, Corbyn could only say that “all options are on the table”.

He said the Prime Minister should keep all options on the table too, but proceeded to contradict himself by urging her to “rule out No Deal”.

Corbyn went on to allow an intervention from Anna Soubry (Con, Broxtowe). She pointed out that the Conservatives are six points ahead in the opinion polls, and wondered whether this could be because “he’s the most hopeless Leader of the Opposition we’ve ever had”.

Corbyn could have replied that her remark did not exactly constitute a declaration of confidence in the Prime Minister. He instead insisted, less ambitiously, that he looked forward to testing public opinion in a general election. But he admitted that many people think we have had quite enough elections and referendums in recent years to be going on with.

And he did not even sound very enthusiastic himself about the idea of an election. The longer he spoke, the less sense one had that he was convincing himself, let alone anyone else.

“Send for Corbyn” is not yet a message that leaps to people’s lips. In that sense, the whole occasion sounded rather bogus, an obligatory ritual rather than a genuine attempt to throw out the Government.

“Stick with May” is still a message the Tory benches are prepared to heed. But the Father of the House, Ken Clarke, had already told her at Prime Minister’s Questions, from his bench a few yards behind her: “She must now modify her red lines…and find a cross-party majority.”

Clarke nodded quietly when Angela Eagle and Yvette Cooper made the same point from the Labour benches.

This was difficult territory for the Prime Minister. She had to show she is prepared to listen to reasonable suggestions from across the House about Brexit, without making her own Eurosceptics fear she is about to outflank them by forming an alliance with Labour moderates.

Liam Byrne (Lab, Birmingham Hodge Hill) said she was imprisoned in “a cage of red lions”, which sounded a dangerous place to be, but it turned out that he had said “a cage of red lines”, which sounded a bit less bad.

May naturally flung at him the famous note he left in 2010 for his successor as Chief Secretary to the Treasury, “I’m afraid there is no money left.”

Byrne said in his own defence, “I was naive to honour a Treasury tradition that went back to Churchill.” By now, the heat was clearly off May. But it was also clear that no one, including herself, yet knows how to devise a Brexit policy which can command a Commons majority.


May’s statement about the Government’s plans now. What she said and what she meant.

The biggest defeat in modern times and the largest Tory rebellion won’t stop her trying to resurrect her deal.

“Mr Speaker, the House has spoken and the Government will listen.”

And I am not resigning – though another Prime Minister in my position would.  The deal on which I gambled has just been rejected by the Commons by the biggest margin in modern times.  Conservative MPs voted against it in the biggest rebellion in modern times.  Some 63 per cent of Tory backbenchers went into the lobbies to oppose it.

However, the Fixed Terms Parliament Act offers me some protection.  Furthermore, a leadership challenge now can’t be launched against me until December.  In any event, here is no agreement within my Party on a successor.  It would be irresponsible to foist a leadership election on it, with March 29 looming, and there is no obvious alternative Prime Minister.

“It is clear that the House does not support this deal.  But tonight’s vote tells us nothing about what it does support.  Nothing about how – or even if – it intends to honour the decision the British people took in a referendum Parliament decided to hold.”

In other words, it will soon become clear that the Commons can’t settle on an alternative to my deal, after all.  The same MPs who rejected it this evening will be forced to swallow it – with, God willing, some real change on the backstop – when this becomes clear.  The deal is also a known quantity with the EU, which the alternatives aren’t.

Better mention the referendum, too.  Honouring its result is still the default position of most of the Parliamentary Party.  I must keep Sajid and Jeremy and Steve and Penny and Andrea and Chris onside.  Best to say nothing about an extension to Article 50, though.  With any luck, that can still be avoided.

“People, particularly EU citizens who have made their home here and UK citizens living in the EU, deserve clarity on these questions as soon as possible.  Those whose jobs rely on our trade with the EU need that clarity.  So with your permission Mr Speaker I would like to set out briefly how the Government intends to proceed.”

That’s a nod of the head to all those tiresome people who drone on about EU citizens – don’t they see that the priority is to get immigration down to the tens of thousands? – plus the CBI and the car manufacturers.  Anyway, I must keep David and Phil and Greg and Amber and David onside.”

“First, we need to confirm whether this Government still enjoys the confidence of the House.  I believe that it does, but given the scale and importance of tonight’s vote it is right that others have the chance to test that question if they wish to do so.  I can therefore confirm that if the Official Opposition table a confidence motion this evening in the form required by the Fixed Term Parliaments Act, the Government will make time to debate that motion tomorrow.  And if, as happened before Christmas, the Official Opposition decline to do so, we will – on this occasion – consider making time tomorrow to debate any motion in the form required from the other opposition parties, should they put one forward.”

That’s you pre-empted, Corbyn.  Mind you, once he’s lost his no confidence vote he’ll come under even more pressure to support a second referendum.  And whether he folds or not, he hasn’t got much alternative but soon to call for an extension to Article 50, in order to carry out his imaginary Labour Government’s imaginary “Labour renegotiation”.

That will be tricky for him, because calling for an extension will look like backsliding on Brexit.  We must nail him on that.  Hmm, hang on a minute.  I might need an extension too – to get my deal through, or else…and I must keep very quiet about this…to try to stave off No Deal chaos.  Best not to push him too hard.  Anyway, while there isn’t a majority in the Commons for revocation, there might be for extension.

“Second, if the House confirms its confidence in this Government I will then hold meetings with my colleagues, our Confidence & Supply partner the DUP and senior Parliamentarians from across the House to identify what would be required to secure the backing of the House.  The Government will approach these meetings in a constructive spirit, but given the urgent need to make progress, we must focus on ideas that are genuinely negotiable and have sufficient support in this House.”

This is the trickiest bit of all.  I need Yvette and her gang to come round to my deal.  That suggests flirting with a Norway-type solution and Customs Union membership.  Which would please David and Phil and Greg and Amber and David.  But I also need Jacob and his lot.  That implies no Customs Union and a Canada-flavoured deal.  Which would please Sajid and Jeremy and Steve and Penny and Andrea and Chris.

Better to keep talking and listening and listening and talking until they all concede the obvious: that there’s no alternative to my deal – the only offer that’s “genuinely negotiable”.  I won’t win Yvette and Hillary and the rest round by next week, but the seeds will have been sown.  So I must be very nice to them…but not so nice as to upset Brandon and Graham and the ’22.”

Third, if these meetings yield such ideas, the Government will then explore them with the European Union.

Fat chance!

“Mr Speaker I want to end by offering two reassurances.”

“The first is to those who fear that the Government’s strategy is to run down the clock to 29th March.  That is not our strategy.”

Yes, it is. But –

“I have always believed that the best way forward is to leave in an orderly way with a good deal and have devoted much of the last two years negotiating such a deal.”

That’s the point: the deal, the deal, the deal. Nothing has changed.

“As you confirmed Mr Speaker, the amendment to the business motion tabled last week by my Right Honourable and Learned Friend the Member for Beaconsfield is not legally binding, but the Government respects the will of the House.  We will therefore make a statement about the way forward and table an amendable motion by Monday.”

Let Dominic table his Second Referendum Bill.  Let Nick try to get the Commons to settle on Norway Plus.  And let the Speaker bend over backwards to help them, which he will do.  Let them have their indicative votes and new Bills – which I probably can’t stop now, anyway.  It’s one thing to table a Bill but quite another to get it through the House.

So let’s table a motion next week that dresses up my deal with a bit of new language, sit back – and enjoy the show.  Sure, I can see how the House might, just might, settle on some Norway option before the end of March.  But accepting it would risk splitting the Party in two.  And it wouldn’t sort immigration.  Which will force MPs back to my deal…

“The second reassurance is to the British people, who voted to leave the European Union in the referendum two and a half years ago.  I became Prime Minister immediately after that referendum.  I believe it is my duty to deliver on their instruction and I intend to do so.”

Better mention the referendum again. Kill off any speculation that I’m backing off the result.

“Mr Speaker every day that passes without this issue being resolved means more uncertainty, more bitterness and more rancour. The Government has heard what the House has said tonight, but I ask Members on all sides of the House to listen to the British people, who want this issue settled, and to work with the Government to do just that.”

Except, of course, it won’t be resolved.  When my deal passes, we’ll have the trade negotiation to sort.  The Political Declaration to flesh out.  Getting the deal and a Bill to enact the Withdrawal Agreement is only the start.  Years more of Brexit lie ahead!

And to get the best out of them, the country will need leadership. Knowledge of the process.  Experience.  A settled hand on the tiller.  When I promised the ’22 I’d quit before the next election I meant it, of course.  But perhaps some things can change, after all…

Andrew Gimson’s Commons sketch: For Cox to speak with such force suggested how desperate May’s predicament has become.

The Attorney General suggested it would be absurd to reject the Government’s motion merely because of the Northern Ireland backstop.

The inexhaustible riches of Geoffrey Cox’s advocacy poured over the Tory benches as he opened for the Government on the final day of the Brexit debate.

Here was a lost cause worthy of the Attorney General’s powers. He boomed, he declared, he pleaded, he went quiet for a moment, he turned again and again to face the Conservative benches, he jabbed his finger at his opponents on his own side, told them not to behave like children, lauded compromise as if he were Moses leading the chosen people through the wilderness towards a land flowing with milk and honey.

Beside him sat the Prime Minister. She looked white with exhaustion, mournful, almost hopeless. Yet during the hour he spoke, she revived like a wilting pot plant rescued at the last moment by a drink of water.

Cox opened by praising “the most passionate appeal to understand the role of compromise” voiced at midnight last night by the Member for Gedling – a Labour MP, Vernon Coaker, who according to Cox had been “heartfelt and eloquent”.

So the Government still hopes it can get its motion through with the help of Labour moderates. That at least was what Cox appeared to imply.

But as Rachel Reeves complained from the Labour benches near the end of this performance, for most of the time Cox turned to address his own party. Even the Speaker, John Bercow, asked the Attorney General to address the House rather than the Conservative Party: “This perambulation is very uncommon and irregular.”

“You upbraid me entirely justly,” Cox replied. But for the rest of the time, he did the upbraiding: “What are you playing at? What are you doing? You are not children in the playground, you are legislators.”

And as legislators, they must understand it would be “the height of irresponsibility” to pull the rug from under anyone who needs legal certainty, and can only get it if Parliament accepts the procedure for leaving the European Union which the Government has negotiated.

The Attorney General offered the curious analogy of an air lock, which we must enter in order to adjust our bodies to the different pressure we shall find when we pass through the second door on the far side and begin life outside the European Union.

Hilary Benn suggested, from the Labour benches, that beyond that second door lies “a complete vacuum”. Cox insisted on the contrary that we would find a “bright new world”.

But he offered another analogy. Removing ourselves from the EU is “as if we were to separate from a living organism with all its arteries and veins”.

It is a dangerous and complicated operation, about which we must be wholly pragmatic: “Do we opt for order or do we choose chaos?”

We cannot hurl the one million British citizens living on the continent of Europe, and the three million Europeans living here, “into a legal void”.

If MPs vote down the motion, “the path to Brexit becomes shrouded in uncertainty…and because of the Northern Ireland backstop”.

Cox had done his best to make rejecting the motion merely because of the backstop seem absurd, dangerous and disproportionate. When he realised he was in danger of going on too long, he quickly and skilfully brought his remarks to a close.

He had at least managed to cheer up the Prime Minister. Indeed, with this bravura performance, he had cheered up many people who are heartily sick of the whole Brexit debate.

But for him to need to speak with such force suggested also how desperate the Government’s predicament has become.

How to measure the size of the Conservative rebellion this evening

Courtesy of Philip Cowley, here are some markers for this evening’s votes, when they come.

Courtesy of Philip Cowley, here are some markers:

– – –

139:       The largest rebellion of modern British politics, over Iraq in 2003.  It was larger than any rebellion of any party since the Corn Laws.

95:         The largest Conservative rebellion of modern British politics. Occurred in 1997, over post-Dunblane gun control under John Major.

91:         The largest rebellion faced by David Cameron, over Lords reform in 2012.

81:         The largest rebellion over European policy by members of any party since 1945 – another Cameron rebellion, this time from 2011.

72:         The largest revolt faced by Margaret Thatcher. Over Sunday trading in 1986.

Almost good enough isn’t good enough

Strangely but truly, the best way of helping the Prime Minister is to send her back to Brussels to win concessions on the backstop.

ConservativeHome’s first rule of Commons votes is that the Speaker will do everything he can to spite the Government.  He is therefore unlikely to smile on any eleventh-hour manuscript amendment designed to reduce the scale of Theresa May’s loss this evening.  None of the Conservative amendments that would aid the Government are expected to pass – Andrew Murrison’s, Hugo Swire’s, Edward Leigh’s.  Labour will whip against them and ERG-aligned MPs will vote against them.  They take the same view of these as they do of yesterday’s letter from Donald Tusk and Jean-Claude Juncker to the Prime Minister: that they carry no legal weight of any significance.

The amendment that would most spare the Prime Minister’s blushes is Hillary Benn’s, which is both anti-her deal and anti-No Deal.  It is thought likely to be carried, thereby obviating her main motion – but by a smaller margin than she would otherwise lose by.  Some Tory MPs have therefore been discreetly lobbied by Whips to back this amendment that opposes her deal.  Since Benn’s anti-deal amendment is thus helpful to May (we hope you’re still with us), it follows that he may withdraw it: indeed, it is reported this morning that he has now done so.

When unclear about procedural malarkey, it’s usually best to turn to MPs’ motives.  It will do for our purposes today to look at the Conservatives only.  They fall roughly into five groups: loyalists, Remainers, Soft Brexiteers – and then two types of harder Brexiteers.  The loyalists will of course vote for the Prime Minister’s motion, assuming it is reached, as will those Conservative MPs convinced of the merits of her deal.  Remainers, such as Dominic Grieve, will largely vote against.  Soft Brexiteers, such as our columnist Nicky Morgan, will mostly vote for.  They will then cluster around Nick Boles’ Norway Plus scheme, or some variant of EEA membership.

The harder Brexiteers divide into two main tendencies.  First, there are those set against May’s deal at any price.  Let’s call them the diehards, adapting the use of the term by James Forsyth.  They actively hunger for No Deal and the WTO minimum.  The second are those who believe, as Jacob Rees-Mogg puts it in our Moggcast this morning, that “most of the poison is in the backstop”.  Again borrowing from Forsyth, let’s refer to them as the Ditchers.  Were the UK to have a unilateral escape clause from it, or were it to have a clear end-date, most of this band of MPs would drop their opposition to the deal and move to support it.  It just might then be able to pass.

It follows that it is therefore in the interest of this second group as well as the first to vote against the deal today – since, by doing so, they would send a message to Brussels that it will only clear Parliament if concessions are made on the backstop.  But not so fast.  Some of the Ditchers are brooding over the numbers.  They calculate that if the Prime Minister loses by a big margin tonight, the EU may give up on the deal together.  And that if she does so by a small one, it will offer no further concessions.  But if she loses by a margin somewhere in between the two, concessions of real value will be forthcoming.

They may be right.  As March 29 approaches, we are hearing rather less about how the deal represents “the last word” of the EU, that “rule-based organisation”, which “won’t budge”.  And more and more about how it may blink after all.  None the less, we hope that Ditcher MPs aren’t drawn into playing clever-clever games this evening, tailoring their votes according to what they believe May’s likely majority may be, and trying to game the result so that she loses by, say, 50 votes or so in order to squeeze those concessions out of the EU.  Such wheezes are not unknown among “the most sophisticated electorate in the world”.

The simple truth is that none are in a position to second-guess the mass of individual decisions that their colleagues may take.  And that, in such circumstances, the most straighforward course is nearly always the best.  Which is this case is: to judge the Prime Minister’s deal on its merits and demerits.  What are these?  In our view, Brexit is a film, not a photo.  In other words, where Britain is on March 29 is not necessarily where we will be in ten years’ time.  For example, it would be acceptable to stay in a customs union for a transition period.  Indeed, it is inevitable, since the systems are not yet ready to escape it.

What is not acceptable is for that film to be “Groundhog Day” – in short, for a backstop from which we have no guarantee of escape lock the whole UK in a customs union, with Northern Ireland none the less divided from Great Britain.  The proposed regulatory border in the Irish sea would separate the province further from the rest of the country.  That has implications not only for Northern Ireland but for Scotland, and thus for the unity of the UK.  The deal sets up an institutional tension between Eurosceptism and unionism, since Great Britain could move further, under its terms, from Single Market and Customs Union rules, but Northern Ireland could not.

For this reason, we hope that Conservative MPs vote against May’s deal this evening.  As we’ve said before, it almost works.  Theresa May won on borders and money in the negotiation, and minimised the ECJ’s scope on laws, which could reasonably be scored as a points win.  She gained the bespoke deal that her critics said would be impossible.  She has won almost no credit for this achievement, first, because she has no media allies or strong public backing, but faces formidable opposition from both second referendum Remainers and UKIP-type Leavers; second, because U-turns and broken pledges elsewhere have bust her credibility and third, of course, because of the backstop.

But almost good enough is not good enough.  Strangely but truly, Tory MPs can best help their leader by voting her deal down today, sending her back to Brussels, and gaining those backstop concessions.  This is far from being a guaranteed outcome but it is not at all an impossible one.  The EU doesn’t want a messy Brexit on its north-west frontier if it can be avoided, especially with the possibility of recession coming to the Eurozone.  Either way, the Commons should honour the referendum result.  May’s deal ultimately falls short of doing so – and guarantees losing the DUP, together with her majority.

A fact amidst the rumours. The Prime Minister is failing to persuade most rebel Conservative MPs to switch and support her deal.

We count four so far from our list of 109 who have changed their minds – and all of them were only “probables”.

“Open your ears,” writes Shakespeare, in the first three words of Henry IV, Part Two, “for which of you will stop / The vent of hearing when loud Rumour speaks?”  What is Rumour saying this morning.  Here are some selected extracts –

Theresa May will craft an amendment to minimise the scale of her defeat tomorrow. The Government will eventually declare that Brexit is revoked, or will gave way to Parliament’s demand for the same.  This will need a Bill. This will not need a Bill.  Theresa May will ask for Brexit to be delayed, in order to prepare for No Deal; or to soften the country up before revocation; or simply to give her deal more time.  This will require a simple vote on a statutory instrument.  The EU will accept her request.  The EU will refuse it.  John Bercow will revolutionise Commons procedure, and prioritise a new Private Members’ Bill to revoke or delay Brexit.  Dominic Grieve will seize control of the House, with the Speaker’s help, and bring about a second referendum.  Nick Boles will do so, and deliver Norway Plus.

As Mark Wallace pointed on this site last Friday, Downing Street wants MPs believe some of this, in order to bluff them into voting for her deal, and squeeze the EU into offering real concessions on the backstop.  The Prime Minister is poised to make a Commons statement this afternoon, but it is likely to offer only “reassurances” and “clarificaions” from the EU, which is watching and waiting to see the scale of her coming defeat.  So is the ERG and its allies, conscious that No Deal is the default setting, and that each day brings us nearer it, in the absence of an agreed alterative.

And since the bulk of those opposed to her deal within her own party are Brexiteers, the Prime Minister is therefore now playing up the prospect of No Brexit, rather than No Deal, in order to win support tomorrow.  That’s why she’s delivering a speech this morning in Stoke, rather than, say, Richmond-upon-Thames.

Grieve and Boles are moving to exploit this chaos of rumour and counter-rumour, plus the likelihood of the Commons voting soon on a series of options after May’s deal is defeated tomorrow.  A no confidence motion may be debated between the two.  It is very unlikely indeed to succeed.  So the Commons would move on soon to those options, including a second referendum and Norway Plus.

Imagine a game of chess combined with a game of chicken, if you can.  Because that’s what you’re seeing.  Now prepare for your imagination to give up altogether.  Because into the chicken and the chess has been thrown a wild card – the Speaker.  Some of the palaver about what he will do – the so-called “coup” – is being pushed by Number Ten, as part of the game.  But the prospect of him unilaterally rewriting Commons rules, if he can, to delay or revoke Brexit is real enough, as we saw last week.

Now let’s stand back from what we don’t know to ponder what we do know.  Which is this: for all the bluff and counter-bluff, there is no sign of May persuading most rebel Tory MPs to switch and support her deal.  This site believes lists of them elsewhere are at the permissive end of the scale, and has published a more conservative one (this is ConservativeHome, after all).  It currently lists 71 Tory MPs opposed, plus 27 probables and ten possibles.  Some of these will abstain rather than vote against the Government.  Others will switch.  But not a single MP on it, as far as we know, has said that he’ll do so.  We have to date eliminated four “probables”.  So that’s four public switchers out of a total of 109 Conservative MPs.  May’s push to turn her rebels is failing.

“Upon my tongues continual slanders ride,” our greatest playwright continues. “The which in every language I pronounce, / Stuffing the ears of men with false reports.”  Stand by for more.  As Daniel Hannan likes to say, nothing escapes Shakespeare.

Grayling, Patten, the Far Right, the IRA, Brexit, the Speaker – and the difference between a threat and a warning

If two men are in a car, and the passenger says to the driver: “Look out! You’re going to crash,” he is shouting out not a “threat” but a warning.

‘Heightening fear through raising the spectre of the IRA is unacceptable,” Sam Gyimah said, in response to Chris Patten’s warning that Brexit he doesnt “want to go back to the days when people were being shot and maimed”.  Vince Cable dismissed “Project Terror”.  David Lammy said that “history shows us appeasement only emboldens the Republican movement”.  Nor was the condemnation restricted to politicians.  Others laid in too.  Jane Merrick, the political commentator, got to the heart of the criticism when she described Patten’s words as a “threat”.

As most of our readers will have worked out by now, none of this happened when, last March, Lord Patten raised the prospect of violence returning to Northern Ireland in the event of Brexit.  There was scarcely a cheep of protest from prominent Remain and Soft Brexit supporters.  Compare this to the buckets of ordure emptied yesterday over the head of Chris Grayling, who warned that cancelling or delaying Brexit could provide an electoral boost for the Far Right.  We have adapted the remarks from Lammy, Cable and Gyimah about Grayling’s words to make the point, substituting “the Republican Movement” or “the IRA” for “the Far Right”.

What did Grayling actually say? As follows: “We risk a break with the British tradition of moderate, mainstream politics that goes back to the Restoration in 1660.  MPs need to remember that Britain, its people and its traditions are the mother of Parliaments. We ignore that and the will of the people at our peril.”  The Daily Mail added that he ‘stopped short of predicting riots if Brexit is weakened or reversed. But he added: “People should not underestimate this. We would see a different tone in our politics. A less tolerant society, a more nationalistic nation. It will open the door to extremist populist political forces in this country of the kind we see in other countries in Europe.”

So, unlike Patten, Grayling steered clear of suggesting that people might be “shot and maimed”: indeed, he was careful to avoid raising even the prospect of riots.  But he was excoriated none the less when Patten was not.

Now you may object that Grayling did raise the possibility of violence by pointing back towards the English Civil War.  Or say that he evidently can’t complain about his words being publicised: that was clearly the intention of speaking them.  If the row has made more people aware of them than would otherwise be the case, then – he might think – so much the better.  You might add that Patten, as a former Northern Ireland Secretary, knows what he’s talking about, and that Grayling hasn’t got a clue (though two recent other Northern Ireland Secretaries, Owen Paterson and Theresa Villiers, voted Leave).

If you did, so be it: it’s a point of view.  But however mistaken we might think it, here at ConservativeHome, at least it isn’t muddling two different things.  If two men are in a car, and the passenger says to the driver: “Look out! You’re going to crash,” he is shouting out not a “threat”, in Merrick’s word, but a warning.  He is not trying to grab the steering wheel himself, and career the car at speed into a motorway barrier.  In that sense, Grayling and Patten are on the same page – or, to follow our parallel, in the same seat.  They may both be prescient – or plain wrong.  Or one may be and not the other.  However, there is no instrinsic difference between what either did.

So why the silence over Patten and the noise over Grayling?  Some will say is that all it shows is the usual Remainer double standard (though they should ask themselves whether they thought or said at the time that Patten was acting irresponsibly).

We think there is a bit more to it than that.  For most Westminster politicians and political journalists, Northern Ireland is a long way away.  SW1 is where many of them work.  The “yellow jacket” protestors have abused some of the latter as well as some of the former.  The natural reaction is to rally round.  It follows that the intimidation of, say, Anna Soubry (who was threatened) gained coverage that the intimidation of Nigel Farage (who was chased in and out of a Glasgow pub by Far Left and SNP activists five years go, before being escorted to safety in a police van) did not.

This is the effect of distance as well as, if you like, of bias – in the sense that more Westminster journalists and politicians will identify with Soubry, who is one of the club, than with Farage.  Interestingly, Soubry – in yesterday condemning Grayling, as one would expect – expressly wrote off the yellow-clad thugs as a sign of anything bigger. “The 15 yobs who have been roaming outside Parliament do not represent anyone but themselves, she tweeted.  “It’s shameful to validate them in this way. Right-wing extremists have always existed.”  This suggests that she thinks there is no substantial electoral threat to the Conservatives from their right.

We are not so sure.  The AfD, Orban, Bolsonaro, Trump’s toppling of the old Republican order in America – all are signs of a worldwide populist revolt from the right or, one might say just as accurately, from parts of the working as well as the middle class.

The Remainers blame Brexit for heightening tensions in British politics.  But these anti-establishment upheavals elsewhere have nothing much to do with Britain’s referendum decision to leave the EU, if anything.  Indeed, the political effect of the vote in Britain to date has been the opposite – collapsing UKIP, helping to halt the march of the SNP in Scotland and containing anti-establishment passions within an established party, the Conservatives (the most established party in the world, if longevity is the measure).  First past the post, a mainstream centre-right party and a rooted national moderation have contained populist reactions.

Today’s papers are full of claims that the Speaker will this week change Commons standing orders in order to stop or soften Brexit.  We shall see.  But if anything of the kind happens, and it follows that some voters conclude that an elite – what we call, more accurately, an Ascendancy – has manipulated Parliamentary procedure to frustrate a popular vote, can we all really be sure that Grayling is wrong?  ConservativeHome apologises for thus uttering a “threat”.  But together with what is still, we suspect, a majority in the Commons, we believe that the gamble of shoving up two fingers at the referendum result is one that it would be unwise to take.

As the ‘meaningful vote’ approaches, apply buckets of salt to all Government news

Scepticism is always a healthy attitude – but the spin being pumped out this weekend merits even more than normal.

The healthy follower of political news is an autocondimentor, taking everything with at least a sprinkling of salt. That habit ought to intensify as controversial votes grow near – and some of this weekend’s headlines require not just fistfuls but barrels of the stuff.

The game underway is the latter stages of an ongoing attempt to bounce opponents of the Prime Minister’s proposed EU deal into supporting it. The particular focus, as displayed by Jeremy Hunt yesterday, is on trying to persuade Leavers that the alternative to the deal is no Brexit rather than No Deal.

If the dubious quality of the arguments being mounted is an indicator of the Government’s desperation, then the Whips appear very worried indeed.

Take for example the exclusive revelation, helpfully presented by George Osborne’s Evening Standard, that:

‘Brexit looks increasingly likely to be delayed beyond the scheduled exit of March 29, Cabinet ministers today revealed to the Standard. A backlog of at least six essential Bills that must be passed before Britain leaves the European Union has left ministers convinced the timetable will be extended…A senior minister said: “The legislative timetable is now very very tight indeed. Certainly, if there was defeat on Tuesday and it took some time before it got resolved, it’s hard to see how we can get all the legislation through by March 29.”’

In other words, trust us to negotiate and implement a bad deal, or our failure to competently manage the legislation will prevent Brexit. Not a very enticing or inspiring message in itself, but also a rather bogus one.

As our very own Henry Hill laid out on Wednesday, the Government’s legislative planning has been careful and detailed, precisely in order to restrict the risk of necessary laws not being in place in time for Brexit Day.

This isn’t the weirdest outcome of the politics of Brexit, but it is odd to see Ministers talking down their own ability to manage Government business, all in order to try to encourage MPs to place more faith in the capacity of the same Government to negotiate and deliver the Withdrawal Agreement. “Trust us, or we will cock it all up” is quite the slogan.

The idea that this Government has made a habit of ‘constitutional outrages’ is false

David Allen Green has painted an inaccurate and flattering picture of the circumstances in which John Bercow shattered precedent this week.

As part of the attempt to justify the Speaker’s rewriting of the parliamentary rulebook, or at least to discredit his critics, David Allen Green (henceforth ‘DAG’) yesterday presented a list of alleged “constitutional outrages” by the May Government.

The effect of this is to paint a portrait of a reckless, even lawless executive which left the beleaguered Speaker no choice but to do what he did (which in any event DAG, unlike experts both sympathetic and otherwise, doesn’t think is a big deal).

Since at the time of writing the top tweet of that thread has received over 8,600 likes, and he has this morning repacked it as an article in the Financial Times, it’s worth taking the time to point out that many (although by no means all) of the items he presents don’t stand up to scrutiny as charges of constitutional wrongdoing.

I already did this on Twitter, but will follow DAG is setting it out more clearly in writing. Let’s take a look at the more dubious claims. Quotes are from the FT.

“The government packed the standing committees (which scrutinise legislation) with Conservative majorities by procedural sleight of hand, despite there being a hung parliament.”

Not for the last time, DAG conflates things which usually happen with things which ought to happen. The reason that minority governments don’t usually manage to secure majorities on standing committees is because they don’t usually have the votes to do that.

Thanks to its alliance with the Democratic Unionist Party this Government did have those votes. The “procedural sleight of hand” was building alliances and winning votes in the Commons, which is exactly what minority governments are supposed to do. Nothing in the constitution obliges a minority government to lose votes they can win.

Anybody who’d like to know more about this particular dispute can read this piece I wrote for ConHome at the time.

“The government deliberately broke the Commons’ “pairing” convention when an opposition MP was on maternity leave so that the government could win a vote.”

We called for Julian Smith to consider his position as Chief Whip when the story broke about Brandon Lewis breaking his pair with Jo Swinson, so no disagreement here that doing so was very bad form.

However, anybody familiar with parliamentary history will know that pairing is an arrangement which has broken down in the past, often to the detriment of the government of the day. James Graham’s play, This House, captures its soul-crushing effect on the Callaghan administration particularly well.

Pairing is an arrangement struck between MPs, and as we explained in our piece on Smith MPs are both responsible and quite capable of exacting a heavy price from any government, let alone a minority government, which disregards it. George Thomas didn’t need to change the rules to punish ministers for breaking pairing, and nor did Bercow.

“The government repeatedly ignored and does not even participate in votes on opposition motions.”

As I wrote at the time Opposition Day is theatre, pure and simple. You might count it poor sportsmanship for the Government to sit out opposition motions – indeed, it probably is – but it does helpfully illustrate their nature as meaningless gestures. Moreover, sources more familiar with this than me suggest that such an approach by the sitting government isn’t even without precedent.

Most importantly, and this is a theme which runs through a lot of these points, sitting out opposition day motions is not a breach of the rules.

“The government committed itself to billions of pounds of public expenditure in a blatant bribe to the Democratic Unionist party for support in a supply and confidence arrangement.”

Of all of them, this point is probably the most ridiculous – it actually manages the feat of being a sillier objection to the DUP’s relationship with the Government than the idea that it breaches the Belfast Agreement, which to his credit DAG does not advance.

However one feels about pork-barrel politics, there’s no doubting that such horse-trading is a well-established and perfectly constitutional part of parliamentary life when minority governments are concerned. Again, the dying days of the Callaghan Government illustrate this very well.

“The government repeatedly seeks to circumvent or abuse the Sewell [sic] convention in its dealings with the devolved administrations.”

The Sewel Convention provides that the British Government will “not normally” legislate on matters which have been devolved to the Scottish Parliament, Welsh Assembly, or Northern Ireland Assembly. It emphatically does not – contrary to some rather strained interpretations – say that Westminster will not legislate for devolved competences under any circumstances whatsoever.

Furthermore, in strict constitutional terms parliamentary supremacy means that Westminster can quite properly legislate on anything whatsoever it wishes.

So on the letter of the law the Government has committed no impropriety. What about the spirit? Well, if the clear provision for legislating in abnormal circumstances baked into the Sewel Convention doesn’t cover Brexit, it’s difficult to see what could possibly qualify.

“The government seeks to legislate for staggeringly wider “Henry VIII powers” so that it can legislate and even repeal Acts without any recourse to parliament.”

Whatever you think about ‘Henry VIII powers’, the crucial wording which renders this point a nonsense is “seeks to legislate”. That means that the Government is going through the normal legislative method to seek approval from the House of Commons for these powers. MPs are quite able to defeat this effort in the normal way.

“The government even sought to make the Article 50 notification without any parliamentary approval and forced the litigation to go all the way to the Supreme Court (where it lost). The government employed three QCs to oppose the litigation on whether Article 50 could be revoked unilaterally (which it also lost).”

Another surreal one. The outcome of the Miller case was far from a foregone conclusion, and the Government was entirely within its legal rights both to fight the case and to appeal. When it lost the case it proceeded to seek (and obtain) parliamentary authorisation for triggering Article 50 as then required by law.

For DAG’s allegation of impropriety to have any weight, one of two things would need to be true. First, the idea of triggering A50 using the royal prerogative would need to have been obviously unconstitutional. Lord Reed’s very cogent dissent in the Miller case puts paid to that idea. Second, the Government exercising its legal right to appeal an adverse judgement – and employing QCs to do it! – would need to somehow constitute a “constitutional trespass” itself. Nowhere is a case for that very strange notion made.

Here endeth the fisking.

As I said above, not every example cited by DAG is incorrect. But spraying out a lot of inappropriate examples of constitutional impropriety paints a false and flattering picture of the context in which the Speaker made his decision.

Moreover, we should not forget that MPs have proved more than capable of holding the Government to account on several occasions when it has crossed the line. The Commons successfully forced it to publish the impact assessments, and held it in contempt of Parliament when it tried to hide its legal advice. It also retains the right to no-confidence the executive which remains the actual source of the supremacy of the legislature in our system.

But DAG does, in my view, get one other big thing wrong, which cuts to the very heart of his analysis. He advocates for a constitution of ends, rather than of means, and fails to account for the need to check the power of the Commons as well as the Government.

At root, a constitutional is a matter of process: institutions and conventions, rules and procedures. The constitution is not about what is done – that is the business of politics – but how things are done.

Yet in his analysis, DAG consistently elevates the ends over the means. He attacks as “constitutional outrages” Government actions of which he disapproves, despite their being within the rules, and defends Bercow’s shattering precedents in pursuit of a cause which he supports as fine constitutional conduct.

Not only is this no way to run an actual system of checks and balances, which requires all the parties it governs to have faith in the clarity and even-handed application of the agreed rules, but once you’re so divorced from the rulebook it renders the whole idea of constitutional impropriety essentially meaningless.

In sum, therefore, DAG’s list of “constitutional outrages” suggests no greater understanding of parliamentary arcana than those critics whose “unhappiness and screaming” he doubts and derides.