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Westlake Legal Group > House of Commons (general)

Why did the Government craft its own defeat yesterday evening?

The crucial words in yesterday’s Government motion were that the Commons “reiterates its support for the approach to leaving the EU expressed by this House on 29 January 2019”.

That risked being read as a reference not only to the Brady amendment (which supported the removal of the backstop) but also to the Spelman amendment (which effectively called for No Brexit if the choice was between No Brexit and No Deal).

Remainers such as Guto Bebb and Justine Greening were never going to vote for Brady.  And Leavers such as Steve Baker were never going to vote for Spelman.

There are more members of the European Research Group than Conservative second referendum supporters, which helps to explain why the former are in the spotlight this morning.  But most of both joined in not backing Theresa May.

So why did the Government not slap down a bland motion that didn’t risk giving second referendum supporters and ERG members alike  reasons or excuses to revolt?

One explanation being floated by Government loyalists is that Downing Street or the whips or both were attempting to stave off the resignation of pro-Soft Brexit and Remain Ministers over the prospect of No Deal.

But most of these seem to believe that they don’t need to quit yet to achieve that end.  And there is a questionmark over whether many will at all.

Another is that the whips or Number Ten or both were trying to thwart the Letwin/Cooper/Boles attempt to make the legislature, in effect, the executive.  But there was no prospect of the Commons voting for that plan yesterday.

Then there is a conspiracy theory – that the whips were seeking to flush out the number of ERG members who might in due course oppose a deal with an amended backstop, but miscalculated.  This is fantastical.

To date, the EU appears to have decided that it would rather negotiate with Theresa May than the Commons.  That is the most natural reading of its decision to engage in further talks with the Government after the House voted for the Brady amendment.

So a further question this morning is whether the EU will pull the plug during the next few days.  If it doesn’t, then the consequences of the Government’s defeat yesterday will be few.  If it does, they could be many.

Either way, experienced hands like Robert Syms and Nicky Morgan were asking yesterday afternoon what on earth the Government was trying to achieve.  Perhaps today will bring answers.

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Nearly a quarter of Conservative MPs failed to support the Prime Minister today

Westlake Legal Group Screen-Shot-2019-02-14-at-18.49.42 Nearly a quarter of Conservative MPs failed to support the Prime Minister today MPs ETC House of Commons (general) Europe EU Brexit   Five Conservative MPs voted against the Government’s motion –

  • Peter Bone
  • Christopher Chope
  • Philip Hollobone
  • Anne Marie Morris
  • Sarah Wollaston

That’s four Leavers and one Remainer.  Chope has recently been scragged by senior Ministers after blocking Zac Goldsmith’s Bill on female genital mutiliation.  His vote looks like a form of revenge.

And two Conservative MPs backed the SNP’s anti-Brexit amendment –

  • Ken Clarke
  • Sarah Wollaston

– together with 13 Labour MPs

  • Debbie Abrahams
  • Tonia Antoniazzi
  • Ben Bradshaw
  • Karen Buck
  • Ann Clwyd
  • Ann Coffey
  • Mary Creagh
  • Stella Creasy
  • Geraint Davies
  • Rosie Duffield
  • Mike Gapes
  • Kate Green
  • Meg Hillier

Meanwhile, it is claimed that 67 Conservative MPs abstained, 44 of whom have been named as follows –

  • Heidi Allen
  • David Amess
  • Steve Baker
  • Guto Bebb
  • Suella Braverman
  • Andrew Bridgen
  • Bill Cash
  • Rehman Chishti
  • Simon Clarke
  • Geoffrey Clifton-Brown
  • Nadine Dorries
  • Richard Drax
  • Iain Duncan-Smith
  • Charlie Elphicke
  • Mark Francois
  • Marcus Fysh
  • Chris Green
  • Justine Greening
  • Sam Gyimah
  • Mark Harper
  • Ranil Jayawardena
  • Bernard Jenkin
  • Boris Johnson
  • Jo Johnson
  • Pauline Latham
  • Andrew Lewer
  • Julian Lewis
  • Jonathan Lord
  • Tim Loughton
  • Esther McVey
  • Sheryll Murray
  • Priti Patel
  • Owen Paterson
  • John Redwood
  • Jacob Rees-Mogg
  • Andrew Rosindell
  • Douglas Ross
  • Antoinette Sandbach
  • Grant Shapps
  • Anna Soubry
  • Bob Stewart
  • Anne-Marie Trevelyan
  • Shailesh Vara
  • John Whittingdale

One has to be a bit careful with absentions – since an MP who doesn’t vote may be ill, or absent for reasons other than believing that he can’t support his party in the lobbies.

But this list of ERG supporters and other Hard Brexiteers, sprinked with Remainers and some Soft Brexiteers, is clearly full of Conservative MPs who deliberately deprived May of their suppport.

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May’s new Brexit hell. An alliance of hard and soft Brexiteers humiliates her. And any sense of Government progress is lost.

Had Anna Soubry insisted on putting her amendment to the vote – and the Speaker would surely have selected it for that purpose – Theresa May would on balance have been helped rather than harmed.

This is because although the Government would have been subject to the embarrassment of releasing papers relating to No Deal (or risk being found in contempt of Parliament), it would not endured the greater indignity of losing its own main motion.

For if Soubry’s amendment had been passed, the Prime Minister’s motion would then not have been put to the Commons at all.  So it would not have been subject to defeat by 303 votes to 258.

The motion was defeated precisely because some Remainers and Soft Brexiteers, such as Phillip Lee, and the bulk of the European Reseach Group – Bernard Jenkin and others – joined together to abstain.

By crafting a motion that seemed both to back the Spelman and Brady amendments passed last month – the first explicitly opposed to No Deal; the second implicitly preparded, however reluctantly, to accept it – the Government created not so much a rod as a hammer for its own back.

Lee and his like didn’t like the Brady amendment; Jenkins and his ilk didn’t like the Spelman one.  Furthermore, and as we wrote this morning, Olly Robbins remarks in a Brussels bar have revived fears in the ERG that Downing Street is seeking to play them.

The sum of all this is that May, having laboriously sweated her way to the top of a hill last month, has now fallen back down it.  She briefly got most of the Conservative Party behind her for a vote, and has now promptly lost its backing once again.

This afternoon, Oliver Letwin was speaking in the Commons of turning the legislature into the executive, and the Commons taking control of the negotiation altogether.  That would have profound and baleful constitutional implications.

Labour seems to be on the verge of a split, with some of its own MPs defying the Whip.  But the Prime Minister has to lead a government, not the opposition, and her exposure to political damage is therefore greater.

The EU’s conduct since the January votes has implied that it still seeks to give her more time.  Hence its decision to allow new deadlines for new discussions.  Whether it will continue to do so in the light of this latest debacle remains to be seen.

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Trust

The consequences can be argued either way.  If the Government is defeated again in the Commons later today, and the cause is European Research Group or other pro-Brexit MPs withholding support, this could turn out be to helpful to the Prime Minister – because the EU will conclude that she needs concessions on the Brexit deal she has agreed to get it though the House.

More likely, a loss of this kind would be harmful, because the EU would judge in consequence that Theresa May really can’t get MPs to back her for very long about anything whatsoever.  That would make them less inclined, not more, to rework the backstop.  Which in turn would risk the Cooper amendment, or something like it, being carried in the Commons sooner rather than later.  Which would make Brexit less likely to happen in any form at all.

Either way, the central problem for Downing Street is that trust in it, from all parts of the Parliamentary party, is very low indeed.  The success of the Brady amendment a fortnight ago only masked this problem, rather than solving it.  The ERG doesn’t trust the Prime Minister to seek meaningful changes to the backstop.  Nor does it believe that she will pursue the solution proposed by the Malthouse Compromise – but, rather, will aim for additions to the backstop rather than changes in its text, let alone scrapping it (as the Brady amendment proposed).

Furthermore, the ERG itself isn’t united on its own aims.  Some of its members, plus other Brexiteering MPs, could live with a codicil to the backstop.  Others insist that the problems posed by May’s deal reach much wider than the backstop, anyway: this point was obscured by the whole group throwing its weight behind the Brady amendment.  There is no way of knowing how the numbers break down.  What is clear that Olly Robbins’ overheard conversation in a Brussels bar has done her no good whatsoever.

Whatever Number Ten’s intentions when it drafted the terms of its motion for debate today, the ERG is now even more suspicious of May than it was before – over her intentions in relation to extension, and to the Customs Union, as well as to the backstop.  And no wonder, since it is clear that under the latest timetable the Government will almost certainly need a short technical extension, at best.

This is because she is simply running out of time for a Withdrawal Bill, and other necessary measures, to pass Parliament before March 29 even if a revised deal wins MPs’ approval next month.  That Downing Street continues to deny this helps to explain why trust, as well as time, is almost exhausted.

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WATCH: “There is no point in having a time limit on the backstop unless it is written into the treaty”, Johnson argues

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Chris White: Time is getting extremely tight to pass all the required withdrawal legislation

Chris White was Special Adviser to Patrick McLoughlin, when the latter served as Chief Whip, as well as to Andrew Lansley and William Hague when each served as Leader of the House. He is now Managing Director of Newington Communications.

The clock is ticking. We’re running out of runway.  Whatever metaphor you wish to use, Parliament has an awful lot of legislating to do before 29th March if it wishes to complete the passage of the seven Brexit Bills, along with a large amount of secondary legislation.

Today, the Prime Minister will update the Commons, setting out the Government’s progress in negotiating with the EU following the passage of the two advisory amendments last month.  They instructed, though not mandated, the Government to seek to both remove the backstop (Brady) and avoid a No Deal scenario (Spelman/Dromey).

Since then, the negotiations have been less than productive, revealed in striking language in the Prime Minister’s letter to the Leader of the Opposition over the weekend.  In it, she stated that she was still seeking alternative arrangements to the backstop without specifying in detail what they were, and that negotiating a free trade deal as a third party outside of the Single Market was a “negotiating challenge”, which is somewhat of an understatement.

A month on from the meaningful vote on 15th January, whilst significant column inches are dedicated to the possibility of the Malthouse Compromise we are no closer to knowing if the EU is prepared to alter the existing deal.  Parliament is running out of time before 29th March, either to pass a Bill implementing an agreed deal, or to pass legislation ensuring the UK is ready for a No Deal Brexit.

The scale of the challenge

On 31st January, the Leader of the Commons quite rightly cancelled the February half-term recess, yet also scheduled a range of business in the Commons that, whilst important, didn’t progress No Deal legislation in any way.  This risk-averse programming is almost certainly down to the fact that, with negotiations ongoing with the EU, the Government doesn’t wish to give any opportunities in the House to amend legislation to include unhelpful and challenging amendments.  For example, there have been strong hints that amendments could be tabled to the Trade Bill in the Lords that would seek to keep the UK in a Customs Union.

If this is the case, and with reports suggesting that the next ‘meaningful vote’ is in around three weeks, in the week commencing 25th February, we may not see any more progress in the Commons on much needed No Deal legislation until a deal is reached that the House can agree on.

In terms of readiness, a number of No Deal preparation Bills have already received Royal Assent, including the Customs Act, the Nuclear Safeguards Act, the Road Haulage Act and the Sanctions Act.  However much more needs to be done. For a start, winning the meaningful vote is only the first step – the Government must then pass a European Union Withdrawal Agreement Implementation (EU WAIB) prior to 29th March to give legal effect to the Withdrawal Agreement.  However the Government must not put all its eggs in one basket, and in order to provide security in the event of No Deal should pass a further six Bills, and additional secondary legislation.

These Bills range from allowing the UK to enter into trade deals, creating a domestic agriculture and fisheries market, maintaining our healthcare agreements, giving powers to implement financial services regulations, to bringing EU citizens under UK law.

The current state of play is as follows:

Westlake Legal Group Chris-White-Brexit-Bills-Final Chris White: Time is getting extremely tight to pass all the required withdrawal legislation Withdrawal Agreement Trade Bill law immigration House of Lords House of Commons (general) Highlights healthcare Fisheries Farming EU Comment Brexit

As you can see from the above table, agriculture, fisheries, and immigration are well behind schedule and will need considerable work to pass before 29th March.  Equally, Trade has its own issues as outlined above.

The Government also has to pass around 600-700 statutory instruments, or secondary legislation, before 29th March to be ready, in addition to the above Bills.  The timetable for their consideration has increased in recent weeks and the Government might just be on track, but around 200 still have to be considered in the next few weeks. Certainly the SI committees are working overtime, and have significant reading ahead of them.  The Times’s Esther Webber reported one SI from BEIS was “636 pages long, weighs 2.54 kilos and covers 11 matters that would be expected to go in separate documents.”

Will the UK be ready in time?

There are 45 days left until 29th March, and Parliament will sit for 26 of them (not counting sitting Fridays), unless it chooses to add more sitting days to the calendar or change the business on Fridays from Private Members’ Bills to Government business.  If the deadline of 29th March remains in place, it is unlikely that the Government will be able to pass both the EU WAIB and the six remaining No Deal preparation Bills.

This will mean uncomfortable decisions about which Bills it has to prioritise, and whether workarounds can be found through alternative means.  The Trade Bill is probably the highest priority for the Government aside from the EU WAIB, but failing to set up domestic agriculture and fisheries markets prior to exit day, for example, will cause severe concerns and uncertainty in those sectors.  If Government, Parliament and the EU reach consensus about an amended deal, or agree to the existing deal, then it’s likely that there will need to be a short extension to Article 50 as passing the EU WAIB inside a month, whilst technically possible, would be extremely challenging.  However, the Government must continue to progress with the No Deal Bills over the next few weeks, or the UK faces running out of runway before 29th March.

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