By Stephen Fisher, 11^thDecember 2018.

Three weeks ago I wrote this piece about Theresa May’s predicament if she lost the “meaningful vote” on her Brexit deal. That was supposed to take place today but it has now been deferred while the prime minister seeks further assurances from the EU on the Irish backstop. This piece assesses the current political situation, evaluates the some of the arguments I previously made and ultimately claims that, while there is a lot of uncertainty and various outcomes are possible, there is still a good case for expecting Theresa May to facilitate another referendum as the single most likely outcome, even though she has ruled one out and might not continue in post for much longer.

Most of this was written before tonight’s rumours that the required 48 letters for a Conservative leadership confidence vote have been sent. There is a discussion of the politics of the leadership, but most of my analysis is about what May could do while she is still in office, perhaps even if there is an ongoing leadership election. If she loses the confidence vote that would substantially increase the chances of a no-deal Brexit.

In brief, my argument has the same flavour as the previous one. Theresa May believes that enacting the Withdrawal Agreement is best course of action for the country. I suspect she also believes it would be the best thing for her party too. There is currently no Commons majority for it. That might well change change as a result of increasing fear of a no-deal Brexit, but it is more likely that it will not. If it does not, then I think she would rather facilitate another referendum than proceed with a no-deal Brexit. Either the prime minister would introduce a referendum bill, or she would use her power over the parliamentary agenda to enable others to do so. Given the opportunity and some leadership I think there would be a cross-party majority for another referendum (provided Remain was on the ballot).

The key things that have changed since my previous analysis are the increasing popularity of a Norway plus option and far more ambiguity over timing. The former is now a possible point of co-ordination among MPs wanting to avoid a hard Brexit but I suspect it is less likely than either May’s deal or another referendum. I previously suggested May would need to move fast towards another option after losing a meaningful vote. I now think it is extremely hard to anticipate when the key events will happen, except to say that the closer we get to 29^thMarch the more the political pressure will mount, on both MPs and the government, for something to be done to avert a no-deal Brexit.

What I took as premises for my previous argument are largely the same. The EU will not substantially, if at all, change the legal text of the Withdrawal Agreement, either for Theresa May or for any other UK prime minister this side of another general election. The time for a general election and renegotiation before the end of March has already run out. The EU would grant an extension to the Article 50 process if the UK wants to hold a referendum (with Remain on the ballot), and probably also for a general election. They probably would not grant an extension purely for further negotiations, even if that request came from a Commons majority, unless it was also accompanied by Commons majority vote for a solution that the EU are highly likely to be able to agree on, such as a Norway plus model with no regulatory divergence between Northern Ireland and the rest of the UK. The UK can revoke its application to leave the EU, as the EJC have clarified this week. The legal default position is that the UK will leave the EU on 29^thwithout a deal unless there is a change in legislation to prevent it. Some of the justifications for these views are in my previous post, and there are various lines of argument there that are still relevant but not repeated here.

Where we are we now?

In her statement to the House of Commons yesterday, the prime minister was very clear that she still thinks her deal is the best deal available and that she thinks she can win a Commons majority for it, without a general election. Specifically, she said, “It honours the result of the referendum. It protects jobs, security and our Union. But it also represents the very best deal that is actually negotiable with the EU. I believe in it – as do many Members of this House. And I still believe there is a majority to be won in this House in support of it, if I can secure additional reassurance on the question of the backstop.”

The prime minister is now seeking that additional reassurance. There may well be little reason to believe that a better deal with the EU could be done, but a plurality of the public think it would be worthwhile trying to negotiate further. One poll, from ComRes on 2^ndDecember, found that people support asking the EU to renegotiate the deal, by 45% to 25% opposed. Meanwhile, polls continue to show no consistent majority for any other course of action. Even if renegotiation is not definitely the most popular course of action, given the information that was available on Monday, it is easy to see why it was the safest political approach to delay the vote and go back to Brussels.

Politicians and political commentators widely expect her to get letters of reassurance from the EU that they do not intend the backstop to be permanent and that they would make every effort to ensure that it was not. But no changes to the legal text are expected. The Democratic Unionist Party (DUP) have said that this would be unsatisfactory and they would vote against the deal. (I take this position to be fixed but it is discussed further below.) It is highly likely that a large number of Conservative backbenchers will continue to be unwilling to support the agreement and so the prime minister will be need to gain support from opposition MPs.

It appears that the prime minister is pursuing a policy of brinkmanship. There are important differences between what Theresa May is doing and the classic military strategy of brinkmanship. The latter assumes that each side is acting in their own interests and one side will back down because of fear of the costs to their side. If a no-deal Brexit really is perceived as terrible outcome it is terrible primarily for the country, which both sides are supposed to care about. After that a no-deal Brexit would likely be worse for the future electoral fortunes of the Conservatives rather than for Labour, on the basis that, if it is as economically damaging as expected, it would be the Tories that led the country into it. If, as I argued previously, the alternative is perceived as selling out Leave voters, and if there is a risk for Labour of being partly blamed for a no-deal Brexit, then it becomes much less clear that the Tories have more to lose. But my impression is that the prime minister is in effect hoping that many Labour MPs will help the Conservatives win the next election out of fear of a no-deal Brexit that only exists because many Conservative MPs see it as a good thing. Some opposition MPs might do this, especially if they think that the Withdrawal Agreement is a reasonable one under the circumstances, some negotiated Brexit ought to be approved and care deeply about the averting the potential economic damage from a no-deal Brexit. So the strategy may well work, but it is not really brinkmanship if your side has more to lose and the other side knows it. Opposition MPs might reasonably expect the prime minister to step back from the brink first.

What else could the prime minister do?

The prime minister’s statement in the Commons yesterday called on MPs collectively to deliver Brexit and included the following remarks about the options, other than her deal, available to MPs. I think we should also read them for clues as to what her second preference would be.

“Many of the most controversial aspects of this deal – including the backstop – are simply inescapable facts of having a negotiated Brexit.

Those members who continue to disagree need to shoulder the responsibility of advocating an alternative solution that can be delivered.

And do so without ducking its implications.

So if you want a second referendum to overturn the result of the first, be honest that this risks dividing the country again, when as a House we should be striving to bring it back together.

If you want to remain part of the Single Market and the Customs Union, be open that this would require free movement, rule-taking across the economy, and ongoing financial contributions – none of which are in my view compatible with the result of the referendum.

If you want to leave without a deal, be upfront that in the short term, this would cause significant economic damage to parts of our country who can least afford to bear the burden.

I do not believe that any of those courses of action command a majority in this House.

But notwithstanding that fact, for as long as we fail to agree a deal, the risk of an accidental no deal increases.”

Of the three options Theresa May discusses here, it seems to me that the argument she provides against another referendum is the weakest. “Risking dividing the country” is not good, but most think the country is already divided and the use of the word “again” suggests the division would just be a repeat of before, no worse. Moreover, it is intriguing that a particular motivation is assumed for a referendum, when none are given for the other two options and better ones are available. The weakness of the argument against another referendum suggests that it is Theresa May’s second preference after her deal.

This is probably reading too much into the statement, but I think it is consistent with her responses to questions in the house yesterday and previous speeches. When asked about another referendum, the prime minister tended to talk about respecting the result of the previous one rather than unequivocally ruling out another. As I argued in my previous blog piece, another referendum could be framed as seeking approval for her Brexit deal so as to force parliament’s hand.

Would there be a parliamentary majority for a referendum?

I made various arguments in my previous post as to why I thought there would be. I still think so, but this issue deserves more attention, especially as Stephen Bush has repeatedly pointed out that there currently is far from a majority of MPs who have come out in favour of a referendum.

There are various reasons for this. Matthew Parris argued persuasively that Conservative Remainer MPs have strong incentives not to go public in supporting a referendum until the deal has been rejected by parliament. The following from James Forsyth (Spectator, 6^thDecember) suggests that there might be support in the future even if there is not now.

“So if May wants her deal passed, and Parliament won’t support it, her only option would be to ask the people. A three–question referendum that offered voters a choice between May’s deal, Remain and no deal would have something for everyone on the Tory side. To adapt Harold Wilson, it might provide a lifeboat into which the whole party could clamber. But at the moment there is strikingly little Tory support for this idea. Most Tories cannot think beyond how divisive a second referendum would be. Even cabinet ministers who voted Remain first time round are fearful of what the electoral consequences would be for the Tories if Remain were to win in a second referendum.”

My previous argument mainly emphasised support from opposition parties, particularly those already in favour (Liberal Democrats, Greens and nationalists). If many Labour MPs joined them, not many Conservatives would be needed.

Labour party policy is to seek a general election before considering other options. Most Labour MPs have been publicly faithful to the party line. That policy is coming increasingly under pressure as some Labour backbenchers and leaders of other opposition parties asked Corbyn yesterday and today to call a vote of no-confidence, not just to try to win it, but also force the partyto move on to demanding a second referendum. I still think, as I argued previously, that it is not in Labour’s interests to have a general election before the end of March. That and the fact that the DUP and Conservatives would currently support the government are the main reasons there is unlikely to be one.

Labour MPs might come under further pressure from their voters to support a referendum. Most Labour voters voted Remain, and a recent YouGov MRP model estimates that nearly all Labour MPs were elected by voters who predominantly support Remain. That is to say that in a three-way contest between Remain, May’s deal and no-deal, Remain would be both the plurality and Condorcet winner among the Labour voters in nearly all the Labour constituencies, including those where a majority of all voters supported Leave in 2016. However, if such constituency opinion is important to MPs, nearly all Conservatives would be more tempted to vote for the deal (as both the plurality and Condorcet winner for Tories in most Tory seats). There are just 55 constituencies where no-deal is the plurality winner among Conservative voters, but even there the deal is the Condorcet winner.

That said, another poll, which I wrote up, suggests voters want MPs to vote more in the national interest than in their constituency interest. What’s more Chris Hanretty, Jon Mellon and Patrick English have argued that MPs don’t get punished much for the stances they take including their Leave/Remain position.

With this in mind MPs are relatively free to do what they think would be in the national interest. 75% of MPs from the 2015-17 parliament voted Remain, including majorities in both main parties. (I don’t know if the figures for the 2017- parliament are available but they are unlikely to be very different given that most current MPs were also MPs before 2017.)

So while there is far from a majority of MPs who have come out in favour of a second referendum so far, I think that if May’s deal fails in parliament, there would certainly be a majority for a referendum over no-deal. I also suspect that the longer a parliamentary vote on a deal is delayed the more pressure there will be for a referendum, and similarly if a hard-Brexiteer takes over as prime minister.

An important issue, and one to which I don’t have an answer, is how, without leadership, a commons majority for a referendum would know that it exists, organise itself and find the necessary legislative time. The latter would at least take some government support I guess.

Will Theresa May continue as prime minister, and with what authority?

Tonight there are rumours that the required 48 letters for a Conservative leadership confidence vote have been sent to the chairman of the 1922 committee, but also suggestions that there have not been. Even before this there was mounting discussion of whether Theresa May would need to resign after a heavy defeat, and the apparent jostling of potential leadership candidates. In my previous post I said that, “Resigning would be a dereliction of duty without any obvious indication that any other prime minister would yield a better outcome for her party or the country.” Given the scale of the defeat that is still expected, resignation after a major vote loss will be seen by many to be a duty rather than a dereliction of one, regardless of the prospects for a better outcome with a different leader. Furthermore, I realise now that it is not primarily a question of whether there is an “obvious indication” that another PM could do better, but rather whether Theresa May has enough credibility to renegotiate or simply enough support to lead.

Stephen Bush has argued that although constitutional convention suggests the prime minster should resign if they fail to pass traditional confidence issues, like the budget or Queen’s speech, Theresa May probably would not because she has form in flouting conventions. In particular Bush points to her willingness to keep Esther McVey and Amber Rudd in their ministerial posts after they mislead parliament. If this is May’s general approach, she would be unlikely to resign out of a sense of convention after losing the meaningful vote.

If Theresa May faces a leadership confidence vote and wins she is safe in her job for a year. I don’t know whether she would win a confidence vote or not. I suspect she would, if only because there would be much disruption and little point in changing leader at this stage in the Brexit process. Given how little time is left before the end of March, it looks unlikely that there would be enough time for a new leader to conduct a serious renegotiation without an extension to the Article 50 process, which I doubt the EU would grant. It may well be that the EU parliament will have already ratified the Withdrawal Agreement by the time a new prime minister is in post. If a new leader would be unable to conduct a serious re-negotiation, then it would be safer to wait till after the end of March.

That said, if a majority of Conservative MPs are most concerned about the prospects of May calling a referendum if she does not get her deal, then she might well lose a confidence vote just to make it harder for her to facilitate a referendum.

Theresa May might try to ward off or win a confidence vote by declaring her intention to resign next summer.

If Theresa May loses there is a leadership contest without her as a candidate. During the contest she would stay on as prime minister. It is unclear both how long a leadership contest would take and also what the prime minister would be able to do in the interim. Steve Baker on the Today programme this morning suggested that it would take six weeks, others have suggested less. Almost however long it takes, it is hard to imagine parliament waiting patiently for the outcome. MPs might take the situation as a cue to organise themselves, perhaps across party lines in favour a second referendum.

A key question is what Theresa May as prime minister during a leadership election could do. The Cabinet Manual is not clear on this matter. Precedent suggests that prime ministers in these circumstances would act as so-called caretakers and not initiate any major new policy. Arguably she should not do anything controversial, but at the very least she will need to progress with preparations for a no-deal Brexit which will likely be controversial. It is not clear to me that a caretaker prime minister could avoid controversy at this time. Given Stephen Bush’s remarks above about Theresa May’s willingness to flout convention, she might even use the government’s agenda setting power in parliament to facilitate any backbench efforts to legislate for a referendum during a leadership election, and if parliament did enact a referendum she could ask for the necessary extension to Article 50. So a leadership election does not preclude May facilitating a referendum.

Given that a Conservative leadership election involves the MPs narrowing, through successive ballots, the field down to two candidates between whom the membership choses, expectations are that the winner will be a hardline Brexiteer.

Boris Johnson on The Andrew Marr Show on Sunday argued that the backstop arrangements could be could be taken out of the legally binding Withdrawal Agreement and remitted to later negotiations on the future relationship. Other hardline Brexiteers have made similar arguments. Although the EU have said this would not be possible, it might be that large Leave supporting sections of the public will not believe it really is impossible unless and until one of the prominent Brexiteers becomes prime minister, tries and fails.

But this would not be a Nixon-in-China moment. If there were a hard-Brexiteer prime minister, such as Boris Johnson or David Davis, and they failed to get the deal they wanted, then the logic of their criticisms of May’s deal means that they would allow the UK to leave without a deal. It is also likely that the circumstances at the time would make it difficult for parliament to stop a no-deal Brexit at what would be a very late stage. A hard Brexiteer PM could probably make it impossible for parliament to find the legislative time to pass referendum bill, and might not seek the Article 50 extension that would be required.

If it came to that sort of situation there might well be some Conservative backbenchers who would vote no-confidence in their own government, especially if Labour took advantage of the situation and offered a referendum. In which case there would likely be a general election (with an Article 50 extension) rather than a new government. The contest would be between an apparently no-deal Brexit Conservative government and Labour leadership offering a referendum. So the result of replacing Theresa May with a hard-Brexiteer would increase the chances a no-deal Brexit, or make it likely that any second referendum would happen under a Labour led government instead of a Conservative one.

If that argument is persuasive, and if Theresa May does not want to increase the chances of either of those outcomes, neither for her party nor for the country, then she should try to stay in office and either continue to fight for her deal or allow the will of parliament to prevail.

Northern Ireland and the DUP

The DUP position is currently against the withdrawal agreement. But if they became pivotal they might have second thoughts. A no-deal Brexit avoids the threat of regulatory divergence between Northern Ireland from the rest of the UK. However, a no-deal Brexit does not guarantee regulatory convergence between GB and Northern Ireland and this LucidTalk poll suggests that a no-deal Brexit might provoke stronger demands for reunification of Ireland.

At the moment the DUP seem to be acting as though either they prefer a no-deal Brexit to the deal, or they think that the government will eventually avert a no-deal Brexit in favour of a resolution avoiding regulatory divergence (such as Norway plus or remaining in the EU after a referendum). Most of the potential regulatory divergence could also be avoided with separate UK legislation, it does not need to be in the Withdrawal Agreement.

Norway plus?

Another important development that my previous blog post did not anticipate is the renewed interest in the so-called Norway plus option of EEA and EFTA membership; a super soft Brexit with continued UK membership of the customs union and single market, and continued free movement of people. This solves the problem of potential regulatory divergence between Northern Ireland and the rest of the UK under the backstop that the DUP are concerned about, but worsens the problem of sovereignty loss that the European Research Group (ERG) and others complain about. Given the nature of complaints against May’s Agreement and particularly the risk of indefinite membership of the backstop, it is surprising that Norway plus is being talked of as a politically viable alternative since that would also involve passing the withdrawal agreement in the first instance.

There is however the possibility that it might suit many Labour and other opposition party MPs to force the government to accept a form of Brexit that will eventually prove unpopular with Leave voters, and so most Conservative voters, especially if Labour voters were relatively relaxed about it. Even if it is mainly the result of opposition votes, the public might well blame the Conservative government if the UK ends up with a settlement which is widely caricatured as a control-losing, vassal-state creating, Brexit-in-name-only. I think this is an unlikely outcome though.

A note of justification and health warning

The reason I have written and published this piece is because I hope it will be and interesting and helpful for others, like me, trying to make sense of what is going on. It is not an attempt to argue for a referendum by taking up the chances of one. If anything I think writing this makes another referendum less likely, since, if I flatter myself that it could be taken seriously by important people, it would only lead to more pressure for the prime minister to clarify her position.

Still less do I want to be a hostage to fortune with the kind of speculation that I have engaged in here. I’m much happier doing that with my statistical model-based election forecasts. They are exercises in trying to best interpret the data available to answer a well-defined quantitative question. Predicting what will happen in the current Brexit process is far more complicated and a scenario I have not anticipated may yet emerge. Nonetheless I believe we can improve our understanding of how politics works by attempting to make predictions and learning from how they go wrong.

So far as I know my main argument is quite different from those being made by other analysts and commentators. That makes it more worthwhile publishing, but also less likely to be right.

Thanks to all those I’ve had conversations with about this subject and the many political journalists whose work I’ve found invaluable.