First things first. Are we back to contemplating the DUP holding the balance of power? The Sunday Telegraph and Sunday Times report what they rate as exciting new moves for an already potentially fateful week.
The Democratic Unionist Party will join Labour and other opposition parties on Monday in a bid to force the Government to publish its legal advice on Brexit – a move that could delay the crucial vote on Theresa May’s plan.
In an explosive alliance that will rock the Government, Sir Keir Starmer, Labour’s shadow Brexit secretary, Nigel Dodds, the DUP’s Westminster leader, Tom Brake, the Liberal Democrats’ Brexit spokesman, and Stephen Gethins, the SNP’s Europe spokesman, will write a joint letter to John Bercow, the House of Commons Speaker.
The letter will insist that the Government is in contempt of Parliament for failing to publish the full Brexit legal advice from Geoffrey Cox, the Attorney General, that underpins Mrs May’s deal, and call for an urgent debate to resolve the constitutional row. Eurosceptics believe that the advice will warn that the UK cannot escape the EU customs union after Brexit. The row could delay the start of a marathon 40-hour debate set over five sitting days on the Brexit deal, starting on Tuesday.
A combined vote with a few Tory Brexiters added for ballast could defeat the government and proceed to a vote of confidence in its future.
But any majority in favour consisting mainly of opposition parties would come nowhere near the two thirds required for a general election, as almost all Tories would oppose it. Confidence in the withdrawal agreement is one thing, confidence in their own survival is another.
The Attorney General Geoffrey Cox in a statement tomorrow has it in his power to let a lot of air out of the legal advice balloon. Holding on to one of the last remnants of the royal prerogative by refusing to disclose the government’s full legal advice, he will be expected to reassure MPs that he is withholding nothing of substance when he gives MPs the gist. Why shouldn’t this seem plausible? Because it’s there in black and white stupid, staring everybody in the face in the withdrawal agreement, that EU permission is needed for the UK to quit to backstop.
Theresa Villiers (remember her? No?), a strong Brexiteer and a former academic lawyer, may have spoken for the silent Tory majority when she told Sky News that she would not support a motion of contempt of Parliament if the government maintains its refusal to publish the full legal advice. And it follows she would not support a motion of no confidence in the government either.
So what then? There may be enough furious Brexiteers to reach the threshold of 48 to demand a leadership contest. Would this clarify either a choice of policy or leader? If it happened tomorrow, it would throw into jeopardy the main show scheduled to begin on Tuesday, the first of a five day debate in the meaningful vote on the withdrawal agreement and therefore the whole withdrawal timetable. With the rank and file divided on any solution, it’s inconceivable that the ERG could achieve party unity on an alternative candidate and an agreed way forward. They would be far more likely to hesitate again to fancy their chances better after the meaningful vote.
So this week MPs face the choices of a vote of confidence, a Conservative leadership challenge, or proceeding as planned with five days of debate on the withdrawal agreement followed by the meaningful vote on 11 December. All of them are opportunities for Theresa May to “pivot” towards a Norway solution which is likely to command a Commons majority, albeit a narrow one. For Brexiteers, Norway’s freedom of movement requirement is a crucial objection unlikely to be mitigated by an emergency brake. Whether the EU would contemplate it and the extension of Article 50 required to negotiate it, is another matter. And anyway, isn’t it far too late in the day to perform such a screeching handbrake turn before 29 March? Alternatively if her defeat on 11 December was less than humiliating (define humiliating), the decider might be deferred to January. Could the whips conceivably fix that?
The government’s other choices.
We’re told the Conservatives are gearing up for a “ snap” general election. Would Theresa May do a double and repeat her disastrous 2017 challenge to Labour to agree without a vote? Otherwise confronting a hostile majority over her Brexit deal and calling for a vote on a general election would require a two thirds majority of MPs to succeed. But under what banner and leader? The Fixed Terms Parliament Act, passed to hold the former Tory-Lib Dem coalition together, proved no obstacle last year when Mrs May challenged Labour to fight one and they agreed without a vote. As the parties are internally split over Brexit, this is less likely now.
Resign and try to form a new government within a fortnight and call for MPs to confirm it. If it’s lost on a simple majority of MPs, an election follows. But why resign unless May is not allowed to continue? Under Conservative party rules, how quickly could a successor emerge to fulfill any conceivable timetable for carrying on the business of government and an election? It would be a bizarre and unprecedented several weeks. The vote can only apply to the formation of the government, not on any other motion like the terms for Brexit. Much else here is unknown. Would Theresa May continue as caretaker until after the election? Could she hand over to another Conservative without a full leadership contest lasting longer than 14 days? Could Jeremy Corbyn argue on fairly whiskery constitutional precedent, that as the government cannot govern, he should have a crack at forming a Labour or Labour-led government without an election?
The present confusion argues for a second meaningful vote in the New Year when MPs will have jumped through or refused, this month’s procedural hoops. Only then will the choice of a second referendum become clearer.
Mrs May could dramatically concede a pivot to Norway before Thursday’s debate and save a lot of angst at this point; but she may feel she has to enact the play down to the last act in order to save face. In defending the withdrawal agreement, Michael Gove thinks he has spotted a chink in the EU’s armour because they dislike the backstop as much as he does as it gives the UK and Northern Ireland in particular some advantages which full members do not enjoy. He’s always had a weakness for left field arguments that stop just short of being convincing. What he’s recommending is one hell of a gamble: to accept the withdrawal terms as they stand and live to fight for a significantly different final deal. But as the Brexiteers all rush to point out, this would be fought from the much weaker position outside the EU.
Theresa May’s own personality and position will figure greatly in whatever rough beast struggles to be born. In her travels from Belfast to Buenos Aires, has she gone too far in sticking implacably to her zero sum choices to win new credibility for a change of tack? She just might be forgiven if she compromised on policy but for herself adopted the old Thatcher slogan TINA – there is no alternative. The stakes are bigger than anyone. But there’s a baleful fascination in watching how this robotic but resilient woman handles herself and the fate of the country in the coming days.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London