The Brexit vote could give him a few days of government – what would he do with it?

FTPA doesn’t just stand for Fixed Term Parliaments Act; it can equally be Freedom to Piss About, which seems appropriate given the casually reckless approach taken to the Brexit ratification process by just about all sides.

The government willingly risks no deal as a bargaining tactic to better the chances of its own deal being agreed; Labour willingly risks it to increase the chances of an election; the Lib Dems will vote against to try to force a Remain outcome; the SNP will vote against (with a little more logic) on the mandate from Scotland, but still risk No Deal all the same; the DUP risk a united Ireland by being willing to tolerate No Deal; Tory Brexiteer rebels risk a Labour government by splitting their own Party so divisively. Sure, getting the right deal is a high reward game but is it really one to justify such high stakes?

When parliament does return, the focus will inevitably return to whether the government can win the ratifying vote on the Withdrawal Agreement and Future Arrangement. In effect, that means whether enough Labour MPs will back it to counter the Tory rebels because without Labour MPs in sizable numbers, it will fail.

Let’s assume the vote does fail, and let’s assume further that the government loses a Vote of No Confidence the following day. This second contingency is relatively unlikely but far from impossible. My working assumption is that if the vote does go down, May will – true to form – say that ‘nothing has changed’ and that the deal remains on the table, there is neither the time nor the political space within the EU to deliver a different deal, and that while the government will continue to prepare for No Deal (and may at that point make it its central planning assumption), it will still look to get the original deal ratified. This could be enough to prompt the DUP and/or a small number of Tory Remainers to bring down the government.

Which is where things get even more interesting on a number of levels. What happens if a government is No Confidenced? The simple answer is that we don’t know. We know what used to happen: it either resigned or requested a dissolution. That can no longer happen because the FTPA mandates a two-week period during which parliament can stave off an early election by passing confidence in a government – plenty of time to indulge in the Act’s alternative name.

One provision of the Act would become of critical importance though: that for an alternative government to receive the confidence of parliament, it must already be in office. The motion that the Commons must pass is:

“That this House has confidence in Her Majesty’s Government.”

That’s not a vote in a prospective government, or a list of proposed ministers, or in an individual to form a government; it is in the government on the day of the vote.

What that implies, assuming that the House doesn’t do a U-turn on the previous government (which itself isn’t entirely impossible in current circumstances), is that the Act assumes that the Palace could – perhaps should – invite one or more politicians during that two-week period to try their hand at forming a government and winning the Commons’ confidence. There can be no doubt that if May was given the thumbs down, Corbyn would be focally demanding the chance to try.

My expectation is that unless there was an extremely rapid turnaround within the Tory Party to elect a new leader who then received the endorsement of the DUP (and any rebel MPs from the previous vote), the Queen would invite Corbyn. This would be the safest option from the Palace’s point of view, maintaining impartiality and leaving it to him to convince the Commons.  It would also be in line with precedent. Specifically:

• – In 2010, Cameron was invited before the deal with the Lib Dems was concluded;
• – In 1974, Wilson became PM without any understanding with the Liberals, SNP or N Ireland MPs being demanded beforehand;
• – In 1924, MacDonald formed a government with no formal deal with the Liberals;
• – In 1916, Lloyd George became PM well before it was clear that he would be able to form a government;
• – In 1905, Campbell-Bannerman was invited to form a minority government when Balfour resigned.

By contrast, the only alternative for May would be to attempt to run down the clock having already been No Confidenced, which would look appalling (remember the accusations against Brown in 2010 of ‘squatting’ in Number Ten after only a couple of days, while talks still went on?), and likely cause a lot of disquiet at the Palace.

Corbyn would, presumably, be expected to face a Confidence vote himself (it would look equally absurd for him to try to run the clock down and prompt an election), but that needn’t happen immediately – he would surely be given a day or two to form a government before having to submit to its ratification.

And therein lies the Brexit angle. Governments have lots of powers to act independently of parliament, even ones whose foundations are extremely uncertain. And a PM with all the powers could request of the EU an extension to Article 50 (though not a revocation, which would almost certainly require an Act of Parliament).

Might Corbyn do that? Might the EU agree? We don’t and can’t know but we should be open to the possibilities, given the consequences both for the country and (more narrowly) for betting markets on whether Britain will have left by the end of March 29.

There is, of course, a lot of speculation in all this. We’re talking third- and fourth-order contingencies. Even so, if there is a clear and credible route to that outcome, we ought to take it seriously.

David Herdson