- FBC Manby Bowdler’s Peter Wilding, Corporate Solicitor and Brexit Adviser
After the votes that changed nothing on Tuesday night (Jan 29) I was surprised to get a call from an excited Tory MP chinking glasses at some Commons party.
His reason for joy? That the Party had miraculously reunited and that the EU, witnessing this, would now fold.
But all that has happened is that the Brexit ‘can’ has, yet again, been kicked down the road until February 13th. Then cheery Tory MPs face disunity and despair again.
Why? Because Parliament decided to deal with the Brexit pressure cooker by removing the safety valve. Though all MPs plead that they want the chance to reach compromise, by defeating the Grieve amendment they threw that chance away.
Though most MPs say they don’t want a no deal, by defeating the Cooper amendment, they binned their legislative right to actually do so.
By endorsing the Brady amendment all they did was give May an empty gun to fire for a fortnight at what will be a deeply unimpressed European Union.
So will the EU fold? No. Even if the EU said yes to reopening the Withdrawal Agreement to change the backstop, they won't follow through unless two calls are made: can whatever emerges get through the Westminster and European Parliaments?
But the EU know that the Brady backstop majority could evaporate with a puff from the ERG and that Guy Verhofstadt, MEP Brexit negotiator, has said no backstop, no deal.
So what now?
If May is forced to stand up empty-handed on February 13th then the 432 MPs who voted in droves against the self same deal on January 15th will have to dig very deep to find a good reason to change their minds.
So, two weeks from now could be groundhog day for another whopping May defeat on her deal.
Which then leaves the following day for a rerun of Tuesday with repeat amendments from Grieve and Cooper.
Without any hope of salvaging the deal, the possibility of a Valentine's Day massacre where Parliament (really does) take back control is visible.
But, but, but…
I think there is a fast growing desperation amongst MPs just to get Brexit over the line and, like Oliver Letwin, just hope for the best. They feel they reflect the country and their constituents.
However ignorant they are of the byways of European politics, they are not stupid. The numbers revealed a hard core of 10 Tory refuseniks and 25 Labour leavers.
If the ERG can blink on the backstop, May's deal could pass. Through weariness alone. Because MPs know that, whilst no deal does not command a majority, it remains the most likely outcome, as it is the default specified in Article 50, unless May wins.
So what about extension, revocation or even a referendum? Hopes died that MPs have the appetite for a bold move to avoid the May deal/no deal Hobson's choice. MPs didn't want five seconds of Cooper's proposed nine month extension.
Only Ken Clarke mentioned revocation and then wrongly – a referendum amendment wasn't even tabled.
However, if May's deal fails we reach high noon. But, as we saw in the Polyanna Malthouse compromise (yes, Brexit has spawned a new genre in spy novel titles) potential solutions to the impasse beg more questions than they try to answer.
Extension? The fact that extension requires the unanimous approval of the EU27 if the UK government asks for it (which it currently says it will not) is not a small potential obstacle. Not least because a lengthy extension will only be agreed if it is for a big constitutional event eg a general election.
A technical extension to implement a deal and associated legislation is probable, as long as the length of the extension does not affect the European Parliament elections.
If, however we get to a rejected extension, the game of chicken reaches its endgame: no deal or revoke article 50 and start again.
The UK can do this unilaterally, as was decided by the European Court of Justice in the Wightman case.
But the ECJ made it clear that this implies a decision to remain in the EU under current membership conditions; it is not a tool that can buy additional time.
So going down the route of revocation requires a House of Commons majority to vote for, and publicly state the willingness to, remain in the EU.
This is hard to sell to the electorate, especially to potential Conservative voters, who see their party as the one that has to deliver Brexit, and would punish what they consider as backsliding.
And, it is not only the Conservatives: many in the opposition support Brexit, either because they are convinced Brexiters or because they feel they cannot go against the result of the referendum.
So, my money is on a rush to the centre. The question is will it fail? This will all require statesmanship but it is far from certain that someone will step up to the plate.
The end result is that Midlands businesses now have no choice but to step up planning and preparing and influencing their own path out of Brexit.
If you would like to contact Peter to discuss any of the above please contact him on 07901 008220 and firstname.lastname@example.org.