Even if May has the Confidence of the House; A Lack of “Plan B” Makes Extending Article 50 Inevitable

Once upon a time, it would all have been much more straightforward. Theresa May would have made the “meaningful vote” a matter of confidence, so that if the government lost the vote, May would immediately see the Queen, and request a dissolution of Parliament to trigger a general election. But not anymore. This is because the Fixed-term Parliaments Act now regulates the timing of general elections with no role for the Queen or prime ministerial discretion. The Act leaves it entirely to the House of Commons as to when to trigger an early general election.

This means that the Government can suffer a massive defeat of 230, remain in office and not hold an election. In a forlorn attempt to force the matter, Jeremy Corbyn will invoke the terms of the Fixed-term Parliaments Act by moving the motion, “that this House has no confidence in Her Majesty’s Government”. If the motion is successful, then there is a 14-day period within which the House of Commons must pass the motion “that this House has confidence in Her Majesty’s Government”. If this motion is not passed within 14 days, then there would be an early general election. It’s doubtful that Corbyn’s motion to trigger the 14-day window will pass.

The key problem is that the Fixed-term Parliaments Act effectively allows MPs to vote against the government but still support it on votes of confidence. Ultimately, this disconnect between confidence and government policy has created the current impasse. Conservative MPs (and the DUP) have voted against May’s deal safe in the safe in the knowledge that they can prevent any immediate election by voting with the government. As a result, we have a twilight government, in office, but not in power and lacking any real direction. The political calculation would be slightly different if there were a popular alternative to the government’s plan. This is still lacking. In his speech at close the debate at the meaningful vote, Jeremy Corbyn’s precise objections to the Withdrawal Agreement itself were left unexpressed.

The debate and vote on Corbyn’s no confidence motion will provide typical Westminster theatrics. For Brexit, the more significant moment will be the government’s response to the defeat on the deal. On Monday, Theresa May will make a statement, and move a motion on her “Plan B”, this motion can be amended (this is due to a controversial decision of the Speaker last week). As an immediate reaction to the defeat, the Prime Minister stated that it will consult with the DUP, and “senior parliamentarians … to identify what would be required to secure the backing of the House”, but any ideas need to be “genuinely negotiable” with the EU. Rather than amendments to the withdrawal agreement, this indicates amendments to the political declaration for the future relationship rather than the withdrawal agreement itself, which is unlikely to satisfy those concerned about the Northern Irish “backstop”. 

Some MPs, such as Nick Boles, are proposing to amend the Prime Minister’s “Plan B” motion to allow the Commons to take greater control of the process. This includes allowing time for legislation that would give the government the opportunity to pursue its “Plan B” proposal, and if that fails, to empower the Liaison Committee to seek a majority for an alternative plan. Despite being made up of senior MPs, it’s currently unclear (to me at least) what capabilities the Liaison Committee possess that elude the government, given that it is essentially a microcosm of the wider House. Anything that would be popular amongst MPs, for example, using a series of indicative votes, could be included in the government’s own “Plan B”. Indeed, if the government’s “Plan B” fails there’s nothing to stop Corbyn from moving another vote of no confidence shortly afterwards.

In short, both the government and the Liaison Committee would face the same difficult task. To find something acceptable to enough of 432 MPs who voted against May’s deal while retaining the payroll vote (government MPs) and the 60 or so backbench Conservatives who voted for May’s deal. Indeed, if it’s a Liaison Committee proposal, the payroll vote cannot be taken for granted as it will not necessarily be a government vote.

Ultimately, in December we knew that (1) the Withdrawal Agreement was deeply unpopular; (2) that May continues to have the confidence of the House of Commons; (3) that there is no viable alternative. Even after the rejection of the Withdrawal Agreement, still haven’t learned anything new.

It must also be remembered that mere parliamentary approval is not the final hurdle. Even if some sort of deal is approved soon, and the EU agrees to any necessary revisions shortly afterwards, under the European Union (Withdrawal) Act 2018, Parliament still needs to pass legislation to implement any agreement. If a “Plan B” has even a passing resemblance to the existing Withdrawal Agreement, this legislation will be complex and contain several constitutional innovations. It’s unlikely to be passed quickly.

Meanwhile, the clock keeps ticking towards Friday, March 29th, 11:00 pm. This means that any “Plan B” has to consider seeking an extension (not a suspension as some suggest) for Article 50, which will only further increase the difficulty of finding the way ahead as it will provoke those seeking “No Deal”. Any extension depends on the unanimous agreement of other 27 EU Member States, who will want to see a viable alternative to the present deal on offer, which now seems further away than ever.

For more on the Fixed-term Parliaments Act, see my written evidence to House of Commons Public Administration and Constitutional Affairs Select Committee – available here.

The Committee’s Report is available here. The main conclusion is that if the Prime Minister loses a vote of confidence, then instead of resigning immediately, they should remain in office until a successor has emerged.

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