Now that MPs have finished two days considering and voting on the 15 amendments to the EU Withdrawal Bill laid down by the House of Lords, it is time to consider the potential implications of the last 48 hours. Philip Lee MP's surprise resignation as Justice Minister, and the SNP walkout of the Commons on Wednesday, suggested fireworks, but this wasn't quite the prime time political drama that the media and political commentators had promised. Despite this, there have been a number of important developments which will shape the rest of the Brexit process and the future of the Government.
Here are our key takeaways:
1. Hard Brexit is dead - the UK to remain in the single market?
The Government has legally committed to ensuring that there is no hard border with Northern Ireland after Brexit. In the absence of an alternative system, some MPs claim this will legally commit the UK Government to effectively remaining within the single market and a customs union (or a quasi-system at the very least). This was largely missed by MPs and the media on Tuesday amidst the confusion regarding the Prime Minister's promises to avoid defeat on the 'meaningful vote' amendment. Ken Clarke MP clarified the situation in the chamber yesterday, stating, "So effectively we are going to reproduce the customs union and the single market and the government will not be able to comply with yesterday's legal obligation unless it does so." The Government amendment to Lord Patten's amendment states that 'Nothing in [sections of] this Act authorises regulations which ... create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature physical infrastructure, including border posts, or checks and controls, that did not exist before exit day and are not in accordance with an agreement between the United Kingdom and the EU.' While Remain supporting MPs and Peers will be delighted by this outcome, neither Brexiteers nor the DUP will accept this and it is now up to them to respond.
2. Theresa May is calling the Brexiteers bluff.
Most of the media attention has focussed on the threat that the Brexiteers present to the Prime Minister and her majority. But after Boris Johnson's outburst, the resignation threats from David Davis, and an article in the Sunday Times which claims that the Brexiteers were ready to force a confidence vote on the Prime Minister once the EU Withdrawal Bill receives Royal Assent, it was the Remain rebels that secured concessions from May in the end. For all of their bluster, the Brexiteers know that Theresa May is their most realistic chance of securing a Brexit that meets at least some of their red lines. The idea of Jacob Rees-Mogg as Tory PM is a fantasy and would be rejected by Conservative MPs and the electorate. One of the main reasons why May has survived this long is because a willing replacement that can unite the Conservative Party isn't readily apparent. These two imperatives mean that the Brexiteers can threaten May but they are cautious about actually derailing her leadership.
3. The chances of a "No Deal" Brexit are gone and the Prime Minister has lost credibility with all sides
There has been a considerable amount of confusion over the exact promises that Theresa May made to the rebels over the 'meaningful vote' amendment. If Parliament votes down the final UK EU Withdrawal Agreement (leaving aside whether the Prime Minister would survive this), the Government has promised that a Minister will come to the Commons to deliver a statement about what happens next (which could be 'nothing'). The Prime Minister promised the rebels that she would also amend the Bill so that within seven days of the ministerial statement MPs would have a vote on a motion approving the government's approach (5A) and that if there is no agreement on withdrawal by 30 November, the government would give MPs the chance to vote on a motion saying what should happen next (5B). This would be a non-binding motion so the Government can effectively ignore it. The last part of the amendment (5C) states that if there is no agreement between the UK and the EU by 15 February 2019, the government have to bring the matter to the Commons within five days, which could then provide 'direction' to the Government in the form of a resolution. The Prime Minister is reported to have promised rebel MPs a discussion on 5C, only for that to be taken away by yesterday morning. Both the Brexiteers and the rebels claimed victory but only one side can be right. It looks like May has betrayed the rebels over amendment 5C, the Brexiteers over the Good Friday Agreement amendment (see above) and admitted that the Government no longer believes 'no deal is better than a bad deal'. May cannot call for loyalty and party unity again soon.
4. The Government looks set to be defeated next month when the customs union issues arises again
While May managed to avoid defeat on the customs union amendment, securing support for a consensus position committing the Government to reporting on its efforts to 'negotiate a customs arrangement', this is nonsense as there will have to be some sort of customs arrangement with the EU regardless of the type of Brexit that the Government seeks to pursue. The issue is that Conservative rebels have tabled a string of amendments to both the Taxation and Trade Bills, including an amendment signed by 12 Conservatives, which would effectively keep Britain in the single market. David Davis, Boris Johnson and Jacob Rees-Mogg need to head this off but it's unclear whether more threats will do the trick.
5. Labour's incoherent Brexit policy leads to the biggest backbench revolt since Corbyn became leader
Labour backbenchers were furious with the Party leadership's fudge amendment which sought to commit the Government to 'seek full access to the single market'. In truth, no one thought that this amendment would be successful, and the fact that Labour tabled it meant that Conservative backbenchers would never put their name to it. The Labour Party whip instructed MPs to abstain on the EEA amendment but 75 backbenchers defied the order and voted in favour of it, while a further 15 voted against. The Government defeated the Labour amendment by a majority of 80 in the end. For all of the criticism of the Conservatives, Labour does not currently have a coherent policy on Brexit. This means that they are standing on the side lines while the most important and transformative legislation for a generation - which the majority of its own MPs oppose - sails through Parliament.
While the Government has survived this legislative drama, there are a number of significant parliamentary battles yet to come before the UK will have the legal foundations in place to effect the Withdrawal Agreement and prepare for an orderly exit. The practical realities of leaving the EU are colliding with the political red lines that the Prime Minister set out before really understanding the complexity of the Brexit challenge.
Sarah Jones, Managing Director, Four Public Affairs