Theresa May has been given a second chance to save Brexit. She’d better not blow it

2 February 2019

9:00 AM

2 February 2019

9:00 AM

Theresa May will soon arrive in Brussels with a series of unlikely demands. She must tell the European Union that she wants to re-open a deal that she was hailing as not just the best, but the ‘only deal possible’ a few weeks ago. Parliament has now made her eat her words. It is a testament to her predicament that this counts as a triumph for her.

She has narrowly avoided a far worse fate. Had parliament voted another way — rejecting Graham Brady’s amendment and passing Yvette Cooper’s — she would have been sent into the negotiating chamber with nothing to say. She wouldn’t have been able to tell the EU what the Commons wanted. She wouldn’t have been able to ask for anything — and the EU would have known that she’d soon be sent back to Brussels by parliament to ask for an extension to Article 50.

At the start of this week, it seemed likely that parliament would further weaken May’s negotiating position. In the event, all such plans were voted down by MPs. At the same time, parliament voted that it would approve the withdrawal agreement if the backstop was replaced with ‘alternative arrangements’.

Her new instructions from parliament come from an amendment by Graham Brady, chairman of the 1922 Committee of backbench Tory MPs. It says the House would support her Brexit deal if the so-called backstop is replaced with alternative arrangements to prevent a hard border with Northern Ireland. This leaves the Prime Minister in a stronger position than anyone would have expected — especially after her 230-vote defeat on the withdrawal agreement a fortnight ago. Then, Brussels was quick to say that this proved the backstop wasn’t the only problem and the scale of the defeat showed that May needed to soften Brexit to get it through. Instead, parliament has said that the backstop is the problem, and that a deal can pass if it is fixed.

The drama has made life more difficult for those ministers who have been threatening to resign over a no-deal Brexit. One minister involved with this group admits that now parliament has voted for something, these ministers will have to join in the calls for Brussels to show flexibility. The request, after all, is not unreasonable. The United Kingdom wants an exit mechanism from any new transitional arrangement it makes with the EU in the same way that it has the right to leave the EU. It would be politically difficult for any Tories to resign because the EU won’t make further compromises to get a deal.

This does not mean that May is going to get what she wants. The EU isn’t going to simply rip out the backstop. But it does give May something to fight for. ‘This isn’t grand political strategy, it’s brinksmanship and holding your nerve,’ declares one cabinet minister.

The Prime Minister won’t get everything that her Brexit ultras want. No. 10 know some of the more ambitious ideas are not going to fly. As one key cabinet minister puts it, open heart surgery calls for small incisions, not cutting open the whole chest. It is un-realistic to think that the EU will humiliate Leo Varadkar, the Irish Taoiseach. Having made much of how the backstop shows that the EU protects its smaller members, they won’t abandon Ireland now.

The real question is not whether May will get everything that her party wants: the question is whether she will get something. Any legal change to her deal — even if it is not sweeping — will give her a chance to put together a coalition for her deal. Inside government, there’s talk of an appendage to her deal that would have legal weight. This would allow the EU to say they haven’t reopened the withdrawal agreement, and for May to claim that she has a new, legally binding deal.

To be sure, the EU declared within minutes of the vote that it would not budge. But its initial response was bound to be negative: this is, after all, still a negotiation and May is asking to rewrite an agreement that she herself concluded. One minister close to the process concedes that ‘the EU will be rightly angry and confused’, adding that ‘they must think we are completely crazy’. But once the EU have expressed this frustration, there are reasons to think that things might move.

The first is that there is a fundamental contradiction in the EU’s backstop position. It argues that the backstop is needed to prevent a hard border. But no deal would almost certainly lead to a hard border — so paradoxically the backstop may bring about precisely what it is designed to prevent. Both the EU and the Irish government have stumbled over this point in the last few days. Even Michel Barnier has now conceded it’s possible to find ‘an operational way of carrying out checks and controls without putting back in place a border’. If so, why can’t such technology be used to work with a deal?

The EU also wants to avoid getting the blame for no deal: it doesn’t want to look like the bad guy. If it adopts a head-in-the-sand position, saying it will not revisit the deal, it may have to take the blame if the UK leaves on 29 March without a deal. Had the Cooper amendment passed, Brussels could have been certain that this would not happen — they’d know that parliament would force May to beg for time. But it is no longer clear that there is a majority in the Commons for this option: even the declaratory amendment expressing disapproval of no deal only mustered a majority of eight.

The EU can no longer be sure that the Commons would actually step in and stop no deal if it looked like happening. It still might: I personally think that it would. But as this week has reminded us, this process is remarkably difficult to predict with any confidence. The EU won’t like it, but it is going to end up having to talk to Theresa May. And in doing so, it will have to admit that there is something to talk about.

One other reason that some kind of agreement may be achievable is that Jean-Claude Juncker is into the last four months of his term as president of the Commission. If the great deal-maker leaves office with no deal between the UK and the EU, it would be another blot on his record, to go alongside the original British decision to leave. By contrast, a deal struck now would cement a geopolitical alliance between the UK and the EU. A close partnership could be his legacy.

If the EU compromises on the backstop, as parliament has now requested, the deal will probably pass, because No. 10 will be able to persuade Brexit ultras to come on board (particularly as many in this group are worried about there being a parliamentary majority against no deal — even if that majority is currently incapable of decisive action). Other Tory MPs who voted against the deal would have a ladder to climb down if May got any kind of change.

And some Labour MPs will be prepared to vote for a deal to prevent disruption. Those running the numbers for the government think they may win over between 25 and 40 Labour MPs. Some Brexiteers may still defy May, but one minister argues that she can now use the prospect of Labour votes to bring the hardcore ERG brigade into line. This Brexiteer minister boldly predicts that those opposing a deal because it is not hard enough will be whittled away to about 15.

Interestingly, I understand that there is a view in Brussels that if the Brexit deadline is to be extended, the UK should be kept in the EU for quite some time. Diplomatic sources say that the French favour an extension of longer than a year. This would strengthen May’s hand. Many MPs would fear that such a lengthy extension would be perceived as blocking Brexit. As the failure of the Cooper amendment showed, this is a charge MPs are particularly keen to avoid.

The Prime Minister remains keen to win over Labour rebels, hence her emphasis on workers’ rights after Brexit. She still hopes to win over some of the unions, giving cover to Labour MPs to support a Tory Prime Minister’s deal. Given that Len McCluskey doesn’t want a second referendum and is sceptical of free movement of people, it is argued that he may well be in the market for a deal not dissimilar to May’s.

The strategy currently being pursued is essentially a Rees-Mogg–McCluskey one. May knows that her deal will never be backed by certain Tory Brexit purists nor by Remainers who still want a second referendum. She needs support from Tory MPs who can see that Brexit is in danger and would go for a deal with something on the backstop, and then rely on a small group of Labour MPs to take her over the line.

Any strategy that relies on Jacob Rees-Mogg and Len McCluskey ending up in the same place is, of course, not without its risks. ‘Whether it works, none of us are in the position to know’, one secretary of state freely admits. It also relies on the DUP — the most uncompromising party in British politics — being satisfied with any compromise reached on the backstop.

Not so long ago, it looked as if the only way May would pass her deal was to let Labour MPs reshape it. Jeremy Corbyn’s refusal to meet her after her 230-vote defeat was perhaps the biggest mistake he has made in his handling of Brexit. His behaviour forced her to turn back to her own party. But Corbyn has now dropped his objections to meeting May, and he still has the potential to cause her problems. If he advocated a permanent customs union combined with membership of the European Economic Area while a relationship with the single market is negotiated, it would split the Tory party. MPs who are adamant that the UK must leave with a deal would urge May to accept this compromise. But it would be anathema to a host of Tory MPs and the vast majority of the membership.

The good news for May is that Corbyn shows few signs of having twigged that he could cause such mischief. Or that he wants to: a Brexit deal that didn’t end free movement would also be difficult for many Labour MPs to defend in their Leave-voting seats. And it’s unlikely that anyone will drag May to a Norway model. As one senior cabinet minister puts it, ‘Her reddest of red lines is we have to leave the EU and it has to involve the end of freedom of movement’.

On the night of May’s historic defeat — the largest ever inflicted on any prime minister — it seemed certain that she had lost control. But now she been given one final chance. Parliament has shown itself unable to ‘take back control’. Instead May, the great survivor, is still plugging away at getting a deal that can pass on mainly Tory votes. She isn’t certain to be successful — but she has a chance. And as she might say, a chance is better than no chance.

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