There are moments in this whole sorry Brexit process when it is possible to feel some sympathy for a largely unsympathetic Prime Minister. Today is another of those occasions. What, you can feel Theresa May wondering aloud, is the point of having a government lawyer if he won’t give you the answers you need?
Unless something extraordinary happens in the next few hours, it seems likely that Geoffrey Cox’s opinion that, despite the Prime Minister’s dash to Strasbourg last night, there is no sound legal basis for the UK being able to escape the now-notorious “backstop” will torpedo and sink any prospect there was that the House of Commons might approve the withdrawal agreement so painfully negotiated by the Prime Minister. And while the extraordinary cannot be ruled out, there remain precious few reasons for thinking it can be ruled-in.
How Mrs May must wish she really did enjoy the Henry VIII powers sometimes ascribed to her. She could then find herself a more conducive attorney-general. In truth, there was something absurd — suitably absurd perhaps but absurd nonetheless — about the notion Brexit’s fate, and that of the country, might come down to a single legal opinion.
Cox may be right or he may be mistaken — there is no way of knowing — but he was right to remind MPs, when he spoke in the Commons today, that this is first and foremost a political matter, not a question of law. That is, the political choices available to MPs remain the same, regardless of the attorney general’s legal view.
And here we may see the essential element of this fiasco. If the choice available to MPs was this withdrawal agreement or no deal at all the Prime Minister’s deal would likely pass. And if it were a choice between this withdrawal agreement or no Brexit at all the Prime Minister’s deal would likely pass too. But for as long as MPs can cling to the dream of no deal (for some) or no Brexit (for others) there are few incentives to vote for this, or indeed any other, deal. It might prevail in one-on-one combat but not in a group fight.
As I write, the indications are that some MPs who voted against the deal last time around will vote for it tonight. Despite that, the signs are that the DUP and Jacob Rees-Mong’s European Research Group will not be coming down from their mountaintop to save Theresa May. That should, you would think, render the Prime Minister’s position untenable. To lose one meaningful vote might be unfortunate, to lose two — and to lose them heavily — seems more serious than mere carelessness.
Yet it would be out of character for May to resign and out of character, too, for her to accept that her deal is dead in the water if she loses tonight. That means, quite remarkably, she may still believe her agreement can be brought back from the dead and given a third chance of passing. Eventually, the theory seems to be, sufficient numbers of MPs will vote for the option most consider the second-best — or, rather, least bad — available to them for fear that, one way or another, they might otherwise be left with the option they think worst of all. For some, again, that is no deal; for others it is no Brexit.
Notionally, the ERG should come around to endorsing the current prospectus as the best available to them. Alas, it does not work like that. They are the pure in heart and Brexit has radicalised them. But if the Commons is serious about avoiding a no-deal Brexit — and that is certainly the will of a majority of members — this set of arrangements, however inconvenient, is the best, hardest, Brexit available. Sometimes, however, you wonder if the ERG actually crave defeat and martyrdom; that’s a better explanation of their behaviour than anything they have been able to muster themselves to explain and justify their approach.
The more the ERG obstruct and threaten the Prime Minister, the more they make it likely that some of their colleagues will lose patience with them. There are plenty of MPs who think Brexit a mistake — most MPs after all voted Remain — but who recognise the imperative of “honouring” the referendum result. They received instruction and must make the best of the brief they have been handed. But if the ERG are not prepared to accept their victory at some point other MPs will be liberated to change their minds and reject it too.
Unfortunately, all the options available are bad ones. A short extension of the Article 50 process seems unlikely to resolve the essential conundrum either; on the contrary, it merely delays the final, eventual, reckoning at which point the House of Commons must endorse one idea or another. That means a deal — of some sort — or not.
In the absence of that, however, even the previously unthinkable begins to become conceivable. That means — and it is hard to credit we are actually reaching this possibility — a new general election might become the least bad path towards a possible way out of this shambles. At the very least it might offer the prospect of some clarity.
There are, of course, some obvious problems with this path. In the first place, it is not obvious an election would actually produce clarity. In the second, it is not obvious either main party deserves to win an election. And in the third, it is difficult to see how Theresa May could lead the Tories into a fresh election. But when all else has been exhausted, what’s left?
Perhaps that prospect might at last concentrate parliamentary minds but if Brexit has taught us anything it ought to be to be very afraid of assuming any lessons have been learned or any minds concentrated.
It can’t go on like this. And yet it will.
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