Deal or No Deal- and it’s looking more and more like the latter – the UK could still leave the EU on 31 October

Despite rumours to the contrary, this week will find it hard to match the turbulence of last week.  It’s pretty clear that at this point, the combined opposition majority can’t agree on a strategy to turf Johnson out of office. This could prove fatal to their main aim.  In the absence of a policy to unite around, passing a vote of confidence against him would only set a clock ticking that would defeat their essential aim of preventing the UK to leave the EU without  effective challenge on 31 October.  Johnson  has some justification for his claim that opposition tactics are hampering his negotiations. Reports from the continent say that many of EU 27 believe he will never get any deal through the Commons that the EU would accept  –   assuming he proposes one in the first place. This is not to be taken for granted, however. If  a tweaked backstop were to emerge as a deal, would defeat in the Commons be guaranteed? But this begs the question of the moment.

The crunch will probably be postponed for all of three weeks, around the EU summit on 18-19 October. What’s likely to happen in the meantime?  The Benn Act – what Johnson defiantly insists on calling “the Surrender Act” – requires him then to win the approval of MPs for a deal  or no deal, or  to make a request to EU to extend the timetable beyond the 31^st  which he has consistently pledged not to do.

This week sees the EU deadline for the UK to unveil their deal proposals in negotiable form, not as “ non-papers”. They may not be made public but they will leak as the Conservative party conference wraps up on Wednesday. The outlook is not good.

Later this evening..

The Spectator’s James Forsyth reports that Arlene Foster isn’t offering much of a tweak to the backstop to take it over the line…

At a Policy Exchange fringe meeting at Tory conference, Arlene Foster has just ruled out any regulatory checks between Northern Ireland and Great Britain that extend beyond agriculture, eliminating one of the possible Brexit compromises. She did say that she’d be prepared to consider a time limit on the backstop. But she thought that Leo Varadkar wouldn’t even be prepared to entertain this.

Foster made clear that she could never accept a customs border within the United Kingdom. She argued that would be unacceptable on both constitutional and economic grounds, highlighting that Northern Ireland does far more trade with Great Britain than it does with the Republic of Ireland. She was also clear that she wasn’t interested in any kind of dual customs status for Northern Ireland, that would see it as a kind of special economic zone in both the UK and EU customs territories. 

On regulation, she indicated that she was prepared to see the island of Ireland treated as a single unit for agriculture, building on existing precedents. She was firm, though, that she would not accept any regulatory checks in between Northern Ireland and Great Britain that extended beyond agriculture. She said that this was the DUP position and that wouldn’t change as their whole purpose was to defend the Union.

Foster was highly critical of Theresa May, saying that she should have been asked more often if she trusted her. She accused May of trying to bounce the DUP into accepting something that would have been ‘injurious’ to Northern Ireland. She did, though, stress that she wanted a deal—distancing herself from Kate Hoey who said she wouldn’t vote for the withdrawal agreement even with the backstop taken out. She said that the level of integration in agriculture, and particularly the dairy sector, meant that a deal would be much better for Northern Ireland than no deal. In a sign of the importance of the meeting, a key member of Boris Johnson’s Downing Street team could be seen listening carefully to Foster’s every word.

It now seems that the only hope for a Brexit compromise is a time limit on the backstop. But, as Foster herself said, it is hard to imagine Dublin going for that, particularly without any guarantees on what would happen at the end of that period. This is particularly the case given how clear Foster was on how she couldn’t accept any kind of customs border in the Irish Sea and how regulatory checks between Northern Ireland and Great Britain for anything other than agriculture were total anathema to the DUP.

Two prognoses from British and EU expert commentators point in the same direction.

First, from Peter Foster of the Daily Telegraph

While the initial offer of an all-Ireland ‘food zone’ is now understood to be deepening, alongside something similar for industrial goods, these moves alone will not deliver a workable alternative to the backstop.

To achieve this, there will have to be a deal on customs – effectively leaving Northern Ireland in the EU customs territory – because the piecemeal, technological approach that Mr Johnson had banked on will simply not fly in Brussels. Customs is the basis of a comprehensive solution.

And there is little time for customisation. To have any hope of getting a deal text together for the October 17 summit, the guts of a text needs to be brokered through EU capitals by two weeks on Monday.

There could be mechanisms to sweeten this Northern Ireland-only arrangement – for starters, a mechanism by which the Stormont parties could consent in its expiry, though this would not amount to a veto; and perhaps – just perhaps – a time-limit on its duration 

The DUP plays its cards very close, but like everyone now trapped in the vice of these negotiations, their options are narrowing. If the DUP did consent to a backstop on those terms, it might yet enable a quorum of the cabinet to follow. 

It remains entirely possible Labour will not support such a deal, at least not without promises of a softer Brexit for Great Britain and protections for workers’ rights, but the very act of landing a deal would make the politics of blocking Brexit much harder for Labour.

It is also logical and likely that Parliament, having legislated to stop a ‘no deal’ Brexit would first  demand an Article 50 extension before agreeing to the deal, to ensure that there was sufficient time to implement it in an orderly way.

Such compromises would undoubtedly be high-risk for Mr Johnson. He will not have entirely abolished the backstop as he promised, but he will still have delivered a Brexit deal and one with some significant changes that his predecessor failed to achieve.

It must be said that after two months of rhetorical hardening, the odds are stacked against any deal. Mr Johnson may simply be unable to sell the very same compromises that he slammed the door on when he took office – despite the quiet urgings from Europe to tread softly.

But then the alternative for Mr Johnson is very high-stakes too: fighting a general election having failed to deliver on Conference’s pledge to “Get Brexit Done” would be an enormous political gamble. We are entering a fortnight of big decisions.

From Tony Connelly of RTE

Until Wednesday, some officials believed that Johnson could pirouette back to the Northern Ireland-only backstop once the Tory Party conference was out of the way, with some assurances for unionists on oversight and involvement by the Northern Ireland Assembly… Assuming the EU grants an extension at the end of October, a Johnson majority would in theory permit him to get a post-election deal through the House of Commons without depending on the DUP.

That might give him more flexibility in the negotiations, but if the EU insists on a fully fledged backstop, albeit with some oversight concessions for the Northern Ireland Assembly, Johnson would still end up with a deal not entirely unlike what Theresa May negotiated.

That might fall foul of the hardline ERG within his party and other unionist-minded Tories.

If Johnson fails to get a majority the outcomes would be a Labour government, which most observers believe is highly unlikely, or a hung parliament. Out of some permutation a second referendum cannot be excluded, but that would take six months to organise, well beyond what the EU might be prepared to offer by way of an extension.

So the EU’s nightmare scenario is further gridlock and instability with the grace period provided by an extension period rapidly running out. Even if it is determined to avoid taking the blame for a no-deal exit, the EU would eventually have to draw the line and refuse to grant any further extensions to Article 50.

In the current agonies of UK politics the only certainty is that the country is ossifying into furious and irreconcilable blocs of Leavers and Remainers, with very few voters amenable to having their minds changed by reasoned debate.

But that too now seems a forlorn hope. The appetite for the EU to be flexible on the backstop has been intimately linked with Johnson’s ability to get the agreement through parliament. If there’s no prospect of that, there’s no reason to be flexible.

Boris Johnson is therefore unlikely to take any risks with his party and the core target of Leave voters by tilting at a deal at the European Council.

Under the Benn Act, Johnson will then be obliged to seek an extension…. Given the severity of the UK Supreme Court judgement it seems inconceivable that he would flout the law.

Johnson could either reluctantly seek an extension, blaming parliament and the EU for the state of affairs, or he could get another minister to send the written extension request, or he could step down as prime minister and pass the chalice over to a divided opposition….

Either way, an election would be inevitable.. Assuming the EU grants an extension at the end of October, a Johnson majority would in theory permit him to get a post-election deal through the House of Commons without depending on the DUP.

That might give him more flexibility in the negotiations, but if the EU insists on a fully fledged backstop, albeit with some oversight concessions for the Northern Ireland Assembly, Johnson would still end up with a deal not entirely unlike what Theresa May negotiated.

That might fall foul of the hardline ERG within his party and other unionist-minded Tories.

If Johnson fails to get a majority the outcomes would be a Labour government, which most observers believe is highly unlikely, or a hung parliament. Out of some permutation a second referendum cannot be excluded, but that would take six months to organise, well beyond what the EU might be prepared to offer by way of an extension.

So the EU’s nightmare scenario is further gridlock and instability with the grace period provided by an extension period rapidly running out. Even if it is determined to avoid taking the blame for a no-deal exit, the EU would eventually have to draw the line and refuse to grant any further extensions to Article 50.

But judging from his cautious comments to Andrew Marr this morning. Johnson may actually be counting on the EU eventually refusing to extend the timetable, if  the Commons stays deadlocked.

The rumour mill is also buzzing with domestic strategies he might adopt in a fortnight’s time to quit  the EU by the end of the month.  Maddy Thimont Jack of the Institute for Government describes scenarios.      

Pro-no deal MPs, meanwhile, could try and ‘game’ the Benn Act by voting for the meaningful vote – which would remove the requirement for Johnson to ask for an extension – but against the Withdrawal Agreement Bill. This would prevent the government from ratifying a deal and is a strategy which could lead to no deal on 31 October.

If Johnson does get a deal approved by 19 October, then that would leave just 12 days to pass the Withdrawal Agreement Bill (just eight scheduled sitting days). When civil servants drafted this legislation, months ago, it reflected Theresa May’s deal. The prime minister’s new arrangements for Northern Ireland will likely require substantial additional (and complicated) drafting.  

Once the legislation is ready, it will need to pass through the Commons and the Lords. It is possible for bills to be passed quickly – the government can programme time in the House of Commons and the Lords are unlikely to hold up the passage of a bill if it has been approved by the Commons – but the timetable will be constrained. This will hugely limit Parliament’s ability to properly scrutinise the legislation.

Johnson may be able to scrape together the numbers to pass the meaningful vote, but getting the Withdrawal Agreement Bill through the Houses of Parliament will require a stable majority which supports the government in multiple votes. 

MPs are yet to see a Withdrawal Agreement Bill, and the government risks losing support in the Commons once the legislation is published. For example, the bill will need to allow for EU law to continue to apply during transition. This is likely to upset some backbenchers: if the government relies on pro-no deal MPs for the meaningful vote, then it may need to look elsewhere for support if it is to get a bill through Parliament. Other MPs may table amendments to reflect some of the offers which Theresa May made on social and environmental protection, or which attempt to curb the government’s freedom in negotiating the long-term relationship with the EU.

The prime minister needs to agree a Brexit deal with the EU and then secure a parliamentary majority for that deal. But even that won’t rule out a no-deal Brexit on 31 October. If he does get a deal, then passing a meaningful vote will be his immediate test – but ensuring that deal is put into law could yet end up being his biggest parliamentary challenge.