Contributors

It would be tempting to table a motion suggesting that the House of Commons should go to rehab – just to find out whether its answer would be "no, no, no".

The second round of "indicative votes" on April 1st failed to produce majority support for any of the four proposals put to the vote.  While the business motion governing the procedure allows for a further round of indicative votes on April 3rd, initiative has passed back to the government.  With the clock ticking towards a default "no deal" Brexit on April 12th, the government's options seem to be:

  • A further attempt to secure approval for the Withdrawal Agreement, with or without the Political Declaration.  This would face potential rejection by the Speaker unless the motion could be framed in a way that differs from those rejected on January 15th, March 13th, and March 29th.
  • A further attempt to secure approval for the Withdrawal Agreement and Political Declaration presented as a confidence vote under the Fixed Term Parliaments Act 2011.  This would present significant difficulties to a Conservative Party already gearing up for a leadership contest.
  • A further attempt to secure approval for the Withdrawal Agreement and Political Declaration, coupled with a confirmatory public vote.

Arguably, a confirmatory public vote following approval of the Withdrawal Agreement and Political Declaration would provide a sufficient number of MPs on both sides of the House of Commons with political cover to allow the motion to pass.  However, agreeing to the precise terms of any such public vote would be contentious.

At its simplest, a confirmatory public vote might ask the public to approve or to reject the "deal".  Approval would allow ratification of the deal and would bring the transitional period into operation, allowing negotiations on the future political and economic relationship to begin.  Rejection would trigger a "no deal" Brexit.  Either way, the government could claim to have delivered the result demanded by the 2016 referendum.

A confirmatory vote framed as "deal or no deal" would be unlikely to satisfy those seeking a vote with a "remain" option.  Equally, a "remain" option would prompt strong objections from those favoring Brexit.  Framed as a "leave or remain" question, the vote would be open to criticism as a re-run of the 2016 referendum.  Framed as a "deal, no deal or remain" question, the vote would be strenuously resisted on the grounds that it would inevitably split the "leave" vote and rig the process in favor of "remain".

A government motion simply coupling the Withdrawal Agreement and Political Declaration with a "confirmatory public vote", without specifying the terms of that vote, would inevitably meet resistance either when the motion is initially debated, or subsequently when debating the terms of the public vote.  Either way, the "nuclear option" might rapidly prove to be another "unclear option".

The legal position

April 12th is the next "cliff edge" date for Brexit.  Both the EU and the UK government have acknowledged that "no deal" remains a distinct possibility, and that any further extension beyond April 12th requires the UK to present a cogent plan. On April 2nd, that is a matter for the government.  On April 3rd the House of Commons may have a further opportunity to find some ground for compromise.  By April 10th, the EU Council's emergency summit will understandably expect progress, or it will confirm "no deal".