Forget the Tory psychodrama, the real crisis is the threat of a No Deal Brexit

Theresa May’s deal cannot pass parliament, and no Conservative leader can secure a better one.

(Photo By VICTORIA JONES/PA IMAGES)

It is important to understand what the Brexit crisis at Westminster is not about. First, and most obviously, it is not about whether Theresa May survives in office.

Yes, the accord reached between the Prime Minister and the European Union on 14 November has thrown her political future into doubt. Yes, it triggered more than half a dozen resignations from her front bench, including the departure of her (second) Brexit secretary. Yes, there is still a furious battle between Tory whips and the leadership of the ultra-Brexiteer caucus, the European Research Group, with the whips desperately trying to persuade MPs that this is not the time to trigger a vote of confidence in May’s leadership.

But that political theatre doesn’t really matter. Whether the opponents of Theresa May’s Brexit strategy can muster the signatures of 15 per cent of the parliamentary party – 48 Conservative MPs – that are necessary to cause a confidence vote is an amusing spectacle for some, but ultimately irrelevant. The number that matters is seven: that is the number of Conservative rebels necessary to wipe out the government’s working majority (achieved with the help of the Democratic Unionist Party).

Significantly more MPs than that have publicly declared they will not vote for May’s deal: the rolling tally on the New Statesman website puts the current number at more than 50. (They include both Brexiteer Boris Johnson and his Remainer brother Jo, plus Labour Brexiteers such as Kate Hoey and Graham Stringer. The Lib Dem, Labour and SNP leadership are whipping their MPs to vote against it too.)

So even if May is forced out or resigns, any new Tory leader will find that mathematical problem will not change. Many Conservative MPs quietly agree with the lonely pro-European voice of former chancellor Ken Clarke, who said last week it would be “stupid” to have a leadership election in the circumstances, “with blood running in the gutters, only to have a load of silly arguments about Europe between the various contenders”. The substance of the deal will also not change, despite the suggestion by cabinet Brexiteers such as Andrea Leadsom that they could tinker around the edges. It is sharply limited not by May’s personal preferences but by the combined demands of Conservative MPs, their partners in the DUP and the 27 other EU member states.

What are those demands? On the Conservative side, they can be summarised in three broad categories: ending free movement of people, maintaining the union between Northern Ireland and the rest of the United Kingdom, and the ability for a post-Brexit Britain to strike its own trade deals.

With the exception of a handful of Leavers such as Peter Bone (and May herself), very few Tory MPs have a burning opposition to free movement in principle. However, Conservative MPs in marginal seats do tend to have a burning desire to reflect the opinions of their constituents, and for the most part, that means ending the free movement of people. If Britain does that, we must give up the other three freedoms of the single market: goods, capital and services. The European Commission has warned all along that “cherry picking” is not an option.

As for the union, its importance to the hardline Protestants of the Democratic Unionist Party is indicated by their very name. Any deal that peels away Northern Ireland from the rest of the UK is unacceptable to them, even if there are Tories who consider that a price worth paying for the freedom to pursue an independent trade policy.

Unfortunately for them, our withdrawal has to be negotiated with a European Union in which every state has the power to veto an accord it doesn’t like, and where no Irish Taoiseach could survive signing a deal which resulted in a hard border on the island of Ireland.

It’s true that an election might solve the conundrum. With a majority, the Conservatives could free themselves of the unionist preoccupations of the DUP. Labour could (although it would be unlikely to) overturn its 2017 manifesto promise to end freedom of movement, allowing it to negotiate a softer exit, perhaps into the European Economic Area in a “Norway-style” deal.

However, in the absence of such an election, a deal very like the one May brought back is the only one available. Whether it is her at the helm or another Conservative leader, that reality will not change.

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When navigating the sound and fury of this crisis it is equally important to remember that Theresa May’s deal is not a blueprint for the final relationship between the European Union and the United Kingdom. It is not a trade deal but an exit deal, with narrow limits.

These include a guarantee of the rights of British citizens in the European Union and those of the three million EU citizens living in the UK; a commitment to maintain the British government’s financial contributions as agreed before the Brexit vote; and most important of all, a promise to keep the Irish border open.

There is, along with the withdrawal agreement, a declaration about the shape of the final trade agreement between the EU and the UK, but this has about the same force as the handshake between a divorcing couple when they agree to keep things cordial. Nice, but with no legal force.

This has proved a sticking point for some Conservative MPs. Anyone hoping for clarity about the post-Brexit future of the UK is not going to find it in the withdrawal agreement. To continue the divorce analogy, the UK has agreed the sale of the family home – but we are no closer to knowing what the new flat we’ll move into will look like.

Right from the beginning of her leadership, May has talked up the Article 50 negotiations, as if she were finalising a trade agreement rather than simply finessing the terms of exit. Both Conservative MPs and the public have been told to expect a trade deal and, as a result, the withdrawal agreement is a profound disappointment.

This is not, however, the only problem with the document from a hard Brexiteer perspective. By committing to an open Irish border, the options for future trade deals are limited. Moving to a low-tax, low regulation Singapore-style economy will be impossible.

Why? Because the only way to maintain the status quo is for both Northern Ireland and the Republic to continue to operate within a shared regulatory and customs framework. That means no bonfire of red tape, in Brexiteer jargon, and little in the way of swingeing tax cuts, at least not in Northern Ireland. Or at least not without moving the border to the Irish Sea, allowing Northern Ireland’s regulations to diverge from the rest of the UK, and enraging the DUP. (File that under: only possible if the Conservatives secured a landslide majority.)

And so, we return to the one fact that is unchanged beyond all the Westminster soap opera, and will remain the same no matter how many LBC phone-ins the Prime Minister submits to, or how many grandiose press conferences Jacob Rees-Mogg holds.The only available Brexit is one in which the whole of the United Kingdom remains within the same regulatory and customs orbit as the European Union, which means that the dream of becoming a mid-Atlantic Singapore will be indefinitely mothballed.

That is why so many pro-Brexit Conservative MPs will vote against it. And with Labour set to vote against the deal, it is impossible to see how the withdrawal agreement could pass the House of Commons.

What happens then? An increasingly common analogy being drawn at Westminster is with the fate of the Troubled Asset Relief Program (Tarp), the bailout measures put forward by George W Bush in 2008. These were voted down by Congress on 29 September that year. Four days of market panic and a few concessions to the opposition Democrats later, and a near-identical programme was passed on 3 October.

Many in parliament envisage a similar outcome. The Labour leadership’s private justification to its MPs for voting against the deal (and risking a no-deal exit) is that they can force an election. But most MPs of all parties think this is highly unlikely, as Conservative MPs would be “voting for unemployment” in the words of one pro-Corbyn MP. What next? There is a general view that once Jeremy Corbyn has tried and failed to secure an early election, Labour backbenchers will feel empowered to break the whip to secure an end to the crisis.

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But what would “ending the crisis” look like? That’s where MPs are less certain. For some pro-Europeans, a failed deal would embolden them to argue for another referendum, with the ballot choice being between the withdrawal agreement, staying in the European Union or leaving without a deal. Others would push for a withdrawal agreement that dictated a softer Brexit after the transition period expired.

Much hinges on the outcome of a case before the European Court of Justice on 27 November on whether the invocation of Article 50 – the formal process for leaving the European Union – can be revoked. If it can, Britain has more options (and, potentially, more time in which to consider them).

Almost every legal expert and every close observer of the European Court expects the verdict to be a yes. What is less certain is whether the power to revoke Article 50 rests solely within the hands of the departing nation or if it would need the agreement of all EU member states.

If Britain can revoke Article 50 without anyone else’s permission, that gives pro-European MPs reassurance that they can vote down May’s deal and then stop the exit from the EU on 29 March 2019. There would then be time for a referendum act to pass through both houses of parliament.

If the decision to revoke Article 50 is not solely in British hands, however, that increases Theresa May’s leverage. It will allow her to present MPs with the choice between her withdrawal agreement and a sudden jump off the cliff edge.

That would place the Labour leadership in an impossible position: it does not want to take co-ownership of a Brexit deal that it expects to be an unpopular disaster. But Labour MPs won’t want to allow a no-deal Brexit either. Difficult times lie ahead.

So, that is the real Brexit crisis. The psychodrama of the Conservative party might be horrifying (or entertaining, depending on your sympathies). But whoever is in No 10, the vital number will still be seven, and the countdown clock is ticking, fast.