Why another referendum is still the most likely outcome of the Brexit impasse

By Stephen Fisher.

On Wednesday MPs again voted against a no-deal Brexit, but it remains the legal default. On Thursday they voted by big majorities for requesting an extension to the Article 50 process and against another referendum. The latter vote saw the Labour leadership instruct their MPs to abstain, but 17 rebelled to vote against and 24 rebelled in favour. Even if all those who abstained had voted in favour, the motion still would have lost. This clearly isn’t a majority for another referendum, yet.

I’ve previously argued (see here, here and here) that the Brexit process is most likely heading towards another referendum. The core argument is that if MPs fail to to back her, Theresa May could try to deliver Brexit by taking her deal to the people. She believes in her deal. She has a decent argument for it. She has tried hard to get it through parliament. It has a fair chance of winning, especially if no-deal is off the ballot.

Some aspects of what I argued in the autumn were wrong, especially my predictions on the timing of key events, which I still cannot forecast. However, I still think some of the underlying ideas about the interests and incentives for the political parties and factions still hold. This post updates and revises the main arguments about the implications of those interests for the chances of different possible outcomes. While most commentators suggest that Theresa May is likely to get her deal passed at some stage, and I would admit that the chances of that have gone up, I still think it is more likely that there will be another referendum. If there is one, I think Remain would most likely win but it is far from a sure thing.

A general election?

The best outcome for Labour would be to come to power in a general election after the government to collapse in disarray. They have a good chance of winning a general election in those circumstances. In November I suggested Labour didn’t really want a general election because overseeing the Brexit process is a poisoned chalice. That has changed.  If the government now collapsed having failed to pass their deal, it would not be so politically damaging for an incoming Labour administration if they also fail. (Labour could attempt renegotiation and if nothing came of it they could organise a referendum. Most of their voters would be happy and opponents would find it hard to credibly argue that they would have done much better.)

Given the breakdown of collective responsibility within the government in last week’s parliamentary votes, it might appear that the chances of a collapse have increased. But it could well be that the Conservatives can continue to agree on staying in government. Meanwhile, we shouldn’t be surprised if Labour try to frustrate initiatives to resolve the impasse in the hope of heightening tensions in the government. This may be considered cynical, but with a reasonable belief that May will not proceed with a no-deal Brexit it would fair for Labour to try to get into government to implement the policies they believe are beneficial for the country.

Probably the greatest threat to the government is from members of the ERG who might vote no-confidence in the hope that the government would then be unable to prevent a no-deal Brexit. But the prime minister, even after losing a motion of no-confidence, would be able to ask for an extension (or even further extension if we are already into one) of Article 50. Since any attempted sabotage by hard Brexiteers would probably be self-defeating, there’s good reason to believe that a general election before a resolution of the Brexit impasse is unlikely.

Extension? What kind? And with what implications?

Assuming there is no general election before a resolution to the Brexit impasse, the nature of the Brexit impasse in the Commons is unlikely to change. The politics of it might change depending on the length of any extension(s) that is/are granted. The longer the extension the less likely Theresa May will be to see the end of it. Despite trying to scare MPs with the prospect of a long extension so that they vote for her deal this week, Theresa May would prefer a short extension at the end of March even if her deal has still not been approved and I suspect that is what the UK will ask for.

An extension is not guaranteed but there are good reasons for believing there will be one, primarily because the EU27 want to avoid a no-deal Brexit. My understanding is that whereas up to the end of last year the EU had been clear that they would allow an extension for another referendum or general election, since at least January Michel Barnier and EU leaders have failed to dampen speculation that there might be an extension for other reasons.

The motion that the government tabled and MPs passed on Thursday 14th March notes that, “if the House has not passed a resolution approving the negotiated withdrawal agreement and the framework for the future relationship … by 20 March 2019, then it is highly likely that the European Council at its meeting the following day would require a clear purpose for any extension, not least to determine its length, and that any extension beyond 30 June 2019 would require the United Kingdom to hold European Parliament elections in May 2019.”  It does not instruct the government has to ask for a long extension, it just acknowledges that the EU27 might insist on one.

The claim the government and others make is that the EU27 would insist on a long extension. It is strange to suggest that the EU27 might keep the UK in the EU longer than the UK wanted to. Had the UK been willing to agree to EU terms earlier the UK could have left earlier and I haven’t seen anything that suggests that would not continue to be the case under an extension for Article 50. The problem for the UK with a long extension, especially with weak conditions, is that the UK would likely just defer another decision making crisis until just before the extension runs out. While I still think that the EU27 would prefer the UK to remain in the EU, the indications are that EU leaders hold up little hope of this and instead primarily think that Brexit will happened and just needs to be managed as smoothly as possible.  On that basis, and because a long extension would create problems for the EU, including those set out by Wolfgang Münchau, the EU27 would probably offer a short extension just to avoid a no-deal Brexit.

If there is a long extension, changes of leadership and a pre-Brexit-resolution general election become more likely. I suspect another referendum, with a Remain vote, becomes even more likely with a long extension, particularly by increasing the chances of there being a Labour government which tries and fails to negotiate a popular deal.

Assuming at most a short extension to the end of June an important question is whether the UK might end up asking for another extension at the end of June and whether they would get one. I don’t think we can rule that possibility out, but I suspect that if Theresa May reaches that point without having made any substantial efforts to explore alternative solutions to her deal, then her position will become increasingly untenable. Many have expected her to resign at earlier points in this process, especially after the first defeat of the meaningful vote. I still believe that May realises that if she goes there would eventually be either a Labour government or a Tory Brexiteer prime minister who would proceed with a no-deal Brexit. From her perspective neither would be good for her country or her party, so I suspect she will continue to try to stay in post. To do so she will probably need to make some kind of substantial move before the end of June, but I have no idea by when and I have to admit that I have come unstuck before by arguing that the urgency and febrile nature of a political situation will force the prime minister to act. Ultimately repeated extensions are a possibility and, if the issue of electing or selecting UK MEPs can be dealt with (and there are indications it can be), repeated extensions might, on each occasion each is asked for, be expedient for the EU27.

What are the options?

Changes in leadership, general elections and extensions might affect the resolution of the Brexit impasse, but they are not solutions in themselves. The possible outcomes are apparently a no-deal Brexit, May’s deal, Norway plus (perhaps based on the current Withdrawal Agreement with an amended political declaration), and another referendum. (Since I did not anticipate the idea of regulatory divergence between Northern Ireland and the rest of the UK instead of a customs border in the Irish Sea, I should admit some new basis for a deal might still emerge, but that seems quite unlikely at this stage.) Revoking Article 50 without another referendum is legally possible, but politically impossible. A withdrawal agreement without a Northern Ireland backstop (or similar) has been ruled out by the EU and is highly unlikely to change. I take it that Labour’s policy of a permanent customs union implies something practically the same as Norway plus because of the border in Ireland and the indivisibility of the four freedoms.

A no-deal Brexit would probably maximise the chances of Labour winning a post-Brexit-resolution general election, but Labour are against it in part because their voters would be infuriated if Labour facilitated no-deal, but also because of the disruption and damage it is expected to bring. For primarily this latter reason I think Theresa May will not proceed with no-deal. In February she went as far as to say, “the United Kingdom will only leave without a deal on 29 March if there is explicit consent in this House for that outcome.” But having made such a concession, if she raises the threat of no-deal again she will be under pressure to seek explicit consent in the run up to any future extension deadline. Since I find it hard to see parliament voting for a no-deal Brexit and other options will be available, I think a no-deal Brexit is unlikely as long as Theresa May continues as prime minister.

Of the possible outcomes the one that would be best for the Conservatives’ chances of re-election is May’s Deal. On that basis Labour have a strong incentive to oppose it and they have already argued strongly against it. Without at least some Labour MPs voting for it, the deal has little chance of passing because there are enough Conservative MPs who say they will never vote for it. Most likely there won’t be for reasons I outline below.

Norway plus would be a big victory for Labour, allowing them to say they softened Brexit to protect jobs. It would be bad for the Conservatives, partly because it would be good for Labour, but also because still more of their supporters and Leave voters would see it as betrayal. Norway plus means following nearly all the EU rules without a formal say in them. Unless and until there is a Labour led government, I think it will be hard for a pro-Norway majority in parliament to form and prevail, not least because the coordination problems, negotiation with EU27 and legislation involved, but also because I think the arguments for it will be difficult to sustain if it comes under more public scrutiny. Opinion polls suggest it could be even less popular than May’s deal.

That leaves another referendum, which neither side want. Many on the Labour side do, but the leadership is unenthusiastic (as Jeremy Corbyn effectively confirmed to Sophy Ridge yesterday). Not least Labour don’t want responsibility for it. Conservatives, including Theresa May, really don’t want another referendum, but it is the least bad option for them if they cannot get their deal. So Labour would prefer to wait for Theresa May to pivot to another referendum, or something better for Labour, such as Norway plus or even a general election.

That, I think, helps explain why Labour whipped to abstain on Thursday’s vote on a referendum. They did not want to take primary responsibility as the largest block of votes a referendum if the government were against, and especially not if it was going to lose. Similarly, there was confusion over the weekend (perhaps on going) regarding Labour’s policy on the Kyle-Wilson amendment that would to make acceptance of the deal conditional on a confirmatory referendum. Apparently Labour would whip in favour of the amendment, but not the amended main motion if the amendment passes. This is apparently on the basis that Labour are against May’s deal. But I guess if this is the strategy it is partly because the government might not whip in favour of such an amended motion, and so if Labour did then the resulting referendum would be a Labour one. Better for Labour to hold back and and force Theresa May to pivot. (Obviously that is easier to do if you don’t care that much about potentially missing out on an opportunity to have a referendum.)

If May does pivot to another referendum then I think, as I previously argued, the votes in parliament for it would be there to pass the necessary legislation, even though they are not clearly there now. May would carry a large section of her party, and the Labour leadership would probably not be able to whip against it. Given parliament have been clearly against a no-deal Brexit, legislation for a binary deal-or-remain referendum would probably achieve a parliamentary majority if the prime minister called for it. If such a referendum did happen, with no-deal off the ballot, then the deal stands a good chance of winning. But I think Remain would be more likely.

Theresa May might decide to include no-deal as an option, perhaps suggesting a two-question referendum with three possible outcomes: deal, no-deal or remain. That might help keep the Conservative party together since it would revive the chances of a no-deal Brexit which Brexiteers currently see slipping away. The prime minister might even propose a referendum on her deal or no-deal, but that would likely be changed in the legislative process to include a remain option. I think remain would most likely win in any referendum in which it is on the ballot, partly because of demographic change, partly because I think the turnout differential would favour Remain instead of Leave as last time, but mainly because of what I suspect would be the campaign dynamics.

What if I’m wrong?

The weakest link in my argument is the possibility that May might succeed in passing her deal with the help of back bench Labour MPs, if not before the end of March then at some later date. There is currently much speculation that the Democratic Unionist Party (DUP) might be persuaded. If they are, then many Conservatives may come on board too, helped by fear of a softer-Brexit or no Brexit at all. At that point backbench Labour MPs could make the difference and many in Leave voting constituencies are said to be considering the idea. This is a plausible possibility but I currently think it is less likely than Theresa May eventually pivoting to another referendum. Not least the DUP have stated a strong point of principle that will be difficult for them to row back from; many in the ERG face a similar problem; and while Labour MPs face awkward situations in Leave voting constituencies they also have conflicting considerations. I will go into these more in another blog post.

Another reason, less talked of, to suspect that May’s deal will not pass is that there might be MPs who previously supported the deal who stop doing so. The more Brexiteers vote for the deal because they fear a softer Brexit or no Brexit at all is the most likely outcome if the deal fails, the more Conservative former-Remainers who voted for the deal might see the declining risk of no-deal as a reason to vote against the deal, or for the Kyle-Wilson amendment. Matthew Parris argues they should act now to prevent Brexit before it is too late, even though they previously had good reason to keep their heads down and support the deal. I don’t know of any MPs who have said they are planning to do so, but there are quite a few for whom it is likely to be a consideration.

Finally, as I have been writing, the Speaker has announced that the government cannot bring the substantially the same motion back to the Commons. I don’t think this affects my main argument much, but it does reduce the chances of the deal passing slightly and so increase the likelihood of other outcomes. There appear to be ways around Bercow’s ruling, but they probably make it harder for the government to call a vote just in the hope that it will pass. For instance, if they have to pass a separate motion to create an exception to the rule there might be some MPs would might back the deal if there was a vote but are not keen to vote for a vote on the motion. Already this morning the government indicated that they were not planning on bringing their deal back until they at least thought it had a decent chance of passing. That bar appears to be a bit higher now.

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