Once May loses the meaningful vote on Tuesday 15 January, which she looks certain to do by around 90 votes, what are her options?
One thing that is not an option is for her to rule out no deal Brexit as Labour’s Shadow Brexit Secretary Sir Keir Starmer has claimed. This claim is not only nonsense, but dangerous. The only two ways of avoiding no deal Brexit are
(i) The approval by the legislature of the Withdrawal Agreement and the Political Declaration
(ii) Revocation of art 50, which will require legislation to overturn the European Union (Withdrawal) Act 2018
We might be able to delay these choices (by obtaining the agreement from the EU27 to an extension to art 50), but in the end they are the only two. Each requires the legislature to act, neither can be done by the government.
The problem is not therefore that Parliament needs to take back control. Parliament, not the government, has control. But with a hung Parliament, under nobody’s control, the danger is that no majority can be obtained for either of these two options.
Decoupling the Withdrawal Agreement and the Political Declaration
The “meaningful vote” requires approval of both the binding Withdrawal Agreement, and the Political Declaration, a non-binding statement of intent on the future relationship. If May had been able to obtain such approval, this would have been politically advantageous. It would have given her the mandate to seek agreement on the future relationship along the lines spelled out, without the need to return to Parliament.
For no deal Brexit to be avoided however, and for the UK to obtain the 2 year transition period. all that is required at international level is the Withdrawal Agreement. As the Professor of European Union Law at the University of Cambridge has pointed out, May can offer Parliament the power to set guidelines on what is agreed on the future relationship (freedom of movement or not, Customs Union or not etc). Nothing at all in the Declaration prevents the government from pursuing any available option that Parliament prefers.
This flexibility would not win over the European Research Group, whose objection is to the backstop in the Withdrawal Agreement, but in a rational world it should win over others who accept the referendum result and do not object to the UK guaranteeing that there will be no border in Ireland.
In principle therefore, such a move would place the Labour opposition in a difficult position. They have, as far as discernible, no substantive objection to the Withdrawal Agreement. Their demands (eg a Permanent Customs Union that gives the UK a “say”) concern the future relationship. However, in practice it may be doubted whether this difficulty is a real one. Labour can maintain the claim that the deal is “bad” for unspecified reasons, make as much noise as they can about the procedure the government is pursuing, and hope few people notice.
(Notice that May cannot overcome her dilemma by offering Labour what they want. Labour has demanded the impossible, thereby closing that option.)
So, Plan B may attract some more support, but probably not the forty to fifty more votes required.
A General Election
If therefore, as seems possible, this suggested plan B is not enough to move the 40 or so votes needed, what is the plan C? One option might be a General Election. If the Conservatives were far ahead in the polls, it would be tempting to seek a General Election in order to obtain a majority sufficiently large so as to outweigh the ERG refuseniks.
However, this is precisely what May tried in 2017, which failed. Any election, just as the last, could not be confined to the issue of Brexit. May is a poor campaigner, doing far worse in the polls now than she did then. This is not therefore a viable option.
Although a majority of Mr Corbyn’s party favour a second referendum, he has steadfastly refused to call for one. Studied ambiguity, whilst being slightly more Remain-y than the Conservatives, has served him well. In a first past the post system with two dominant parties, those who strongly favour Remain when presented with a binary choice between the party of Jacob Rees-Mogg and another slightly more favourable to the European Union have nowhere else to go.
In his speech in Wakefield on 10 January (a significant choice of location) Mr Corbyn on its face steered a middle course between Leave and Remain. But if we parse what he said with care, he now favours the former. So, we are told that the “real divide” is not between Leave and Remain but between the many and the few (ie Brexit does not matter). Further we learn that the referendum was really about “what has happened to our people over decades.” These are not the words of a man who favours sticking with that status quo (ie Remain) who is about to pivot to favouring a referendum.
Any conceivable referendum would be of the form “Withdrawal Agreement v Remain.” No responsible government would put “no deal Brexit” on the ballot. The economic consequences of this option are so serious that it would be equivalent to giving a cancer patient the choice of being treated by homeopathy. The danger would be that given the choice too many blind optimists would opt for it. That being so, a referendum would require Mr Corbyn to side either for or against Brexit. This would go against his long term strategy of ambiguity.
The prospect of Mrs May backing a referendum look superficially stronger. Although she has ruled it out so far, it offers her a way out of Parliamentary deadlock. Unfortunately a referendum of the form “Withdrawal Agreement v Remain” does look uncomfortably like a rerun of the 2016 referendum. It would not be a referendum on the terms of Brexit as the nature of the future relationship is still all to be agreed.
Her position looks to be the converse of Mr Corbyn’s. She may favour a second referendum, but the majority of her party would not. She would split the government.
Therefore I do not think, as presently advised, that there will be a ‘plan C’. Mrs May may well consider that she has done her duty to the country by obtaining the only Withdrawal Agreement that is possible, and by presenting it to Parliament. Her duty to her party requires her not to follow Peel on the Corn Laws and to split her party in two. If, in the resultant deadlock, we exit without a deal she may conclude that that will not have been for want of trying on her part. Oh dear.