138 | What Now?

After the crushing defeat for Theresa May's deal in the Commons, we try to work out where we go from here.  How and when can Article 50 be extended?  What would it mean for parliament to take control of the process?  Do we need another general election?  Can this government survive?  It's all connected and we search for the path through the maze.  With Helen Thompson, Chris Bickerton and Kenneth Armstrong.

DAVID: Hello – my name is David Runciman, and this is Talking Politics, and this is 2019. We are about 12 hours out from Theresa May's catastrophic defeat in the Commons of her Brexit deal, and we are about 12 hours before what we assume will be her narrow victory in a no confidence vote. We're going to try and work out what happens next.

DAVID: It's 10:30 on Tuesday evening and I've spent the last couple of hours trying to make sense of what Theresa May's historic defeat means for Brexit. And I have to say I cannot remember a time since we've been doing this podcast when I have felt more completely perplexed. There is no shortage of opinion out there and I've been plowing through a lot of it. There is someone making a case for everything. All the possibilities have their advocates from no deal through to a second referendum, and some new deal. But I cannot at this time on Tuesday see what the thing is that somehow can command majority support in the Commons and support from the European Union. If it's there, I can't see it. And I feel completely lost. I need to talk to Helen to Chris and to Kenneth about this tomorrow.

DAVID: I am joined by Helen Thompson, by Chris Bickerton. It's a pleasure to welcome back Kenneth Armstrong who is the author of the book Brexit Time: Leaving the EU, Why, How, and When. Those are all good questions. It’s quite a thought thing that we still don't know why, I don't know if we know why how, and when. So if we start with when. Because of when we last did this about six weeks ago you correctly told us in anticipation that the European Court was going to tell the British government, the British parliament that we could revoke Article 50. We are now at the point where the clock has ticked on quite a long way and we are no nearer to knowing how. What are the options in relation to Article 50 and the March 29 deadline? My assumption is that revocation is impossible in political terms because the court said that to revoke is to commit the UK to remaining in the European Union. And that would only be possible after a second referendum. And we are not going to have a second referendum before the 29th of March. So the options are presumably either no deal or extension?

KENNETH: The argument for extension I think is becoming very strong now because there is so little time to do anything else. The 29 March deadline happens by operation of law. Unless there is a withdrawal agreement, the UK will leave two years after its notification, and that will be the 29th of March. The court did say that the UK could unilaterally revoke its Article 50 notification. One thing is that perhaps John Major was saying the time was, ‘Well maybe we could use this to simply pause the process.’ And that's clearly not possible. It's not a pause button. You either decide you're going ahead and leaving the EU or you decide that you are unconditionally and unequivocally deciding to stay. And as you say there have to be a politics that would make that happen. And I think the politics of that would have to be another referendum…

DAVID: In a way it's inconceivable that parliament, particularly this parliament, could take that decision.

KENNETH: I mean some do say the parliament could itself make that decision, you know referendums have a particular ambiguous constitutional status in the UK and the parliament could in fact just simply decide that the will of the people now was that we weren't going to stay in the EU. I agree, I think that that seems fanciful that that could happen. I can't see a circumstance in which parliament could do that unless it was from perhaps a general election in between, you could see that maybe that could be the mandate that then says that something is different. So in terms of extending the deadline, which I think is the thing that most people seem to be talking about now because we're just so close to that deadline, that's clearly possible. The UK would have to request it. And the EU 27 would have to agree to it. And I guess… I mean most people think, ‘Well why wouldn't they agree to that?’ But they might want to think, well but what is this for? Is it simply to carry on the muddle, you know, it has to be for a purpose, a particular purpose and what would that be? A general election, a referendum, or a clear sense that parliament could come together on some sort of consensus but wasn't just there yet.

DAVID: So just to be clear, is your sense of it in legal and political terms that to make that request it has to be grounded on a fairly concrete plan, including presumably a future date? It can't be open ended. That would be the pause. There has to be a another 29th of March coming up, a further date, with a specific plan or proposal of what will happen before that date, whether it's a referendum or an election or the laying out of some alternative plan. [6:43]

KENNETH: I think so. I think the problem though is trying to define what that time period should be, not least because we’ve got European Parliament elections coming up in May. And of course then the UK would still possibly still be a member state at that point, and an MEP from the UK is potentially electable at that point. I mean I think things that were being said last week were floating ideas of an extension to something like July.

HELEN: I think if you look though at what was coming out of various EU 27 governments over the last two days, I think something that did not seem possible last week, which was Theresa May asking for an extension to try to get this withdrawal agreement and an adjusted political declaration through Parliament might now be accepted. I think that last week I would have said that that wasn't possible, that the EU 27 position was going to be either it has to be for a referendum or for a general election. But I think that from their point of view, assuming that enough of them don't actually want to try to keep Britain in the European Union—I think this is a really deep and important question—that the possibility of allowing this more time is something that's got some attraction from their point of view.

DAVID: But, again, on the sequencing question, is it that we need to know what the adjustment is before we make the request, or do we say give us some time to work out something that is both accept to parliament and acceptable to the European Union? Because if it's if we need to work out what it is that we're going to do before we make the request for the extension the clock will keep ticking, and we are getting dangerously close…

HELEN: It is but you've got to distinguish here between the withdrawal agreement and the political declaration because the people now who want Norway plus or whatever fanciful name that they're calling it cannot change the withdrawal agreement. They still need the withdrawal agreement to pass. And they're not going to get a different withdrawal agreement, they have to have a different political declaration, one that biases the future more towards what they want. Now actually in terms of changing that in the timeframe available, that isn't actually so difficult if there was a parliamentary majority for it now, that is a huge if—I'm not actually convinced that there is…

DAVID: Because… I’ll bring Chris in in a second because I'm still… I'm really struggling with this to be honest. So I'm still puzzled by this question. Were it to be possible to make that adjustment to the political declaration because it's clear there is within the Commons some consensus on the possibility of majority for it, then we wouldn't need the extension right?

HELEN: No, we wouldn’t, but you could see, I think, a situation in which it will be emerging consensus… I mean in principle because I've got doubts about whether such a consensus could happen.

DAVID: And we are going to come on to that.

HELEN: Let's say it does and there is emerging consensus in that direction and it needs some more time to then ensure that enough people are also onside for passing the withdrawal agreement, which is actually, those two things go together but there's quite a lot of MPs who don't seem to see that they go together. I can see that the EU might give an extension for letting that process play itself out.

DAVID: And would that extension take us past the European Parliamentary elections because that is a big…


DAVID: Because again it seems so hard to imagine how we could remain in the European Union past those elections and not have a vote.

HELEN: Well I think there is a difference between maybe the elections and when the new European Parliament has to sit, which is, I believe is July. Correct me if I'm wrong about that.

DAVID: We would just sit out those elections if we were still a member state would we, Chris? [10:08]

CHRIS: I think so, yeah. But we’re talking about an extension of Article 50. We risk, I think, forgetting some of the politics of not having an extension. The politics around the Deal or No Deal is very important. If May’s strategy remains that of trying to get her deal through in some, possibly some modified form by picking off as many MPs as possible...

DAVID: There's a lot to pick off.

CHRIS: There’s a lot to do and I think her options are limited. If that remains her strategy no, deal is really important for that. The prospect of falling out of the European Union is crucial to get anyone across the sort of other side voting for her deal. As soon as we get into the domain of extending Article 50…

DAVID: Her deal is dead.

CHRIS: Well her deal is certainly dead. We're also in the realm of just buying time, kicking the can down the road into sort of these waters of, ‘Where do we start? Do we start again?” I mean that takes us into a slightly different political environment. So at the moment I can see her reluctance to do that even though she might be pushed into doing it because all of the negotiating tactics and strategy vis a vis the MPs is just simply taken away and something else has to happen.

HELEN: I just think we should stop talking about the deal. I don’t think it's very helpful in the sense that the withdrawal agreement, I don't think it's dead at all. There is a possibility that the withdrawal agreement will still pass. The political declaration as it stands at the moment is not going to go with that. So the people who want the political declaration changed will also have to pass a withdrawal agreement because you cannot embody Norway plus plus or a common market or whatever it's called into the withdrawal agreement. These are two separate issues.

DAVID: And is there any way that these things can be within this process somehow uncoupled.

KENNETH: Well I think Helen is absolutely right. I think the problem, and this is really what Chris is highlighting, is that the politicians who actually have to make the decisions on that don't make that distinction. They're not making that distinction. We saw recently in one of the European Policy Centre papers Andrew Duff had written about what one could do to decouple these things, and it is clear that what you need to do is really focus very clearly on on the political declaration side of things. And remember the political declaration side of things simply encompasses where the UK and the EU had got to on the future in terms of what the May government said it wanted. That doesn't preclude any other government or any new government coming along with a different vision of what that could be. So in some ways I think what Andrew Duff was trying to point towards there is take out some of the language that is there that precludes some visions of the future. Make it somewhat more open in ways that would allow a different… if we end up with a different government or if we end up with the government controlled by somebody else coming up with a different version of the future then that's all possible. But we’ve known all these things and that still hasn't changed the arithmetic. So I think I agree that the things can be decoupled but it doesn't seem to be happening on the ground with our MPs.

CHRIS: I think the problem with that is I don't think the opposition to a deal lies in the text of the political declaration. It lies in the legally binding text of the withdrawal treaty, notably the backstop. People's feeling that either this isn't really delivering Brexit or that the backstop will simply undo the United Kingdom. I mean the opposition that's united the Commons against her deal lies in the legally binding part of it.

KENNETH: I disagree because I think the backstop is… I think you're right for a particular group of MPs, and that includes the DUP and includes certain sections of the Conservative Party.

DAVID: It doesn't include the Labour Party.

KENNETH: But if you're looking for where the consensus lies, the consensus is just about what the vision of the future would be. And in terms of flipping the numbers, I mean flipping the numbers, on a huge vote last night, you really do have to form a new consensus. Not only is that about the future, not these smaller groupings who are upset about the backstop…

HELEN: Can I just say on the backstop though as well, I think that there was something actually really quite significant in those exchange of letters that went on between the government and Tusk and Juncker because effectively they were saying… I mean Tusk and Juncker that the backstop and the arrangements in it would not in any sense be necessarily the basis of the future relationship. Now that is quite a distinction from what we started with where the claim was, which I think was in the political declaration… I could be wrong about that… that the assumption of what was in the backstop where Customs was concerned would be the starting point for the future relationship,

KENNETH: Said we would build upon that…

DAVID: And that's what we talked about last time.

HELEN: And that is gone now. In terms of those exchange of letters, so I think that is really a significant change that actually came out of what’s gone on in the last 48 hours. It doesn't seem to have made any difference, and I think part of the reason it doesn't make any difference it is because some of the people in the ERG group are not actually interested in the details of the withdrawal agreement or indeed in the political declaration. They're interested in somebody other than Theresa May being prime minister and they see an opportunity through this to bring that about. Now they've been thwarted once with a confidence vote but I don't think they think that's the end of the matter. [15:08]

DAVID: And it's also clear, the number that voted in the confidence vote was almost exactly the same as the number that voted against Theresa May last night. Before we come on to the fundamental question, which is, can this Parliament, this group of MPs, arrive at a consensus, Can we also take a step back and just talk about that bigger question, which is how much leeway has parliament got here to assert itself against the executive? Because a lot of the rumblings preceding the vote were that we're on the cusp of some fundamental constitutional questions and possibly even some big constitutional changes if parliament quote unquote takes control of this process. And these arguments range from dancing on the head of the pin of what the word forthwith means in the tabling of amendments through to an exchange in the debate yesterday between Theresa May and Ed Miliband in which Ed Miliband said that the executive is the servant of the legislature and Theresa May said no. The executive in this case is the servant of the people, which is a pretty fundamental difference of opinion. How do you see the range of possibility for Parliament to wrest control of this from Theresa May and her government?

HELEN: Well I would say that the basic structural facts of the British constitutional settlement and the ways in which parliament does its business are on the executive's side.

DAVID: The precedent is for the executive.

HELEN: And one of the reasons, or in some sense the primary reason for that, is that the executive controls parliamentary business. So unless you change the executive it is really quite difficult to see how a second referendum bill is going through. Now the big caveat to that is the speaker, whether the speaker is willing to basically turn over lots of customary practice and dispense with the standing order in which the government essentially controls the parliamentary timetable.

KENNETH: It’s also what’s laid down in the withdrawal act, which was that having had a vote not to approve the deal, there’d then be a 21 day period by which the minister would have to come back, and then there’d be another five days for a debate. What's happened is... the important thing about Bercow’s agreements to the Grieve amendment was to say, no that's going to have to happen within three days, and that's why we're going to have I think by Monday then some sense of what the government is going to have to come up with in terms of Plan B. So that is a quite good example of parliamentarians, if you like, asserting some degree of influence on the process. That's not necessarily the same as Parliament being able to wrest control over it. And what would it mean from the EU side for that to happen? I mean the EU negotiates with governments it doesn't negotiate with parliaments.

CHRIS: I think in any case the great obstacle to parliament taking sort of the driving seat is that they don't know what they would do were they to have the controls. It's not as if there's this grand idea couched within the sort of the seats of the House of Commons that unites MPs against the executive and they just want to be unleashed in order to implement it. So there's a lot of gesturing, there's a lot of, I think, power politics really over who thinks they can call the shots. And I think this is quite right constitutionally, this is a really sort of an unravelling, if you like, of constitutional precedent. But it's not clear to me that there's an overarching purpose for it.

DAVID: Is there not one thing that parliament could do, which the government to this point has been very resistant of doing, which is to engineer a series of votes to test whether there might be a majority for X or Y or Z? I mean Theresa May's line has been like, it's my deal or no deal, that it's me or the highway, whatever. But there are people in parliament who think the only way to find out what can pass is for parliament itself, or some group of MPs, to start tabling votes to test opinion in parliament. And that's the thing that the government has resisted. Is that not where this division might come? I mean is there not some possibility that that the kind of thing...

KENNETH: You kind of think, wasn't that what we should have done two years ago before we started the negotiations?

DAVID: Right but given…  you wouldn't start from here, but here is where we are.

HELEN: You still think then about what has to happen for the legislative to be in control of it. So say that you got a parliamentary majority for Norway plus...

DAVID: So let's vote on this this this this and see which one ends up the winner in this kind of contest…

HELEN: Then the executive would still have to go back and talk to the EU about changing the political declaration. It’s not the legislature that can do that for the reasons that Kenneth just said because the EU doesn't deal with legislatures. If parliament voted in this sequence of votes for a referendum, it would still be the case that unless the speaker intervened to overthrow the notion that the executive controls parliamentary business, that the executive would then have to legislate, or lead the legislation for that primary legislation that is required for a referendum to go through. And once you get into that, requiring primary legislation for a referendum, you immediately have to have enough consensus for a parliamentary majority on what the question is going to be, on who's going to vote. I mean it’s going to be extremely contested. So even if you just get some of… whatever we would call it, motion, which shows that enough MPs are going to vote for… are willing to support a referendum, they’ve also be much more specific than that. They've got to say what the question is going to be and they've got to decide what the franchise is. And then they've got to persuade Theresa May that that is what she's got to do next. I mean that’s still… [20:57]

DAVID: Yeah and in a way that's the the great challenge here, which is, we can talk about the executive, but we actually think about this executive. I mean if it's not going to be Theresa May we also need a political sequence that replaces her as prime minister with someone else. Now it could be another conservative. But we know from the way the Conservative Party does these things that it now has to go to the members. And the irony of the situation is that in all the polling that there's been in recent weeks, pollsters have found one constituency where there is a very strong majority for no deal. And that is the members of the Conservative Party.

HELEN: It’s extraordinarily difficult to see how any Conservative leader is going to lead legislation for a second referendum.

DAVID: Exactly. Well particularly under their method for choosing a new leader.

HELEN: I don't even think that. I think it doesn't matter what... I mean they would destroy the Conservative party to do that.

DAVID: Dominic Grieve as the prime minister of a national government? Just throwing out an idea.

HELEN: You would have to have a different government… I said Conservative government, I didn’t say national government.

DAVID: Dominic Grieve is not going to be prime minister of a Conservative government.

CHRIS: I think that's maybe putting the finger on it is it's this executive, it's also this parliament. So what we're talking about here is in some way a fundamental attenuation of partisan divisions, a willingness to contemplate sort of cross party unity on on a particular way out of the European Union that thus far has not been countenanced by anybody. So the idea that over the course of two years there's been this great idea such as Norway plus that nobody's really discussed and now it's going to be able to just whistled through a sort of a unified Parliament if Theresa May steps back just seems to me out of step with reality. And so I think there are two dynamics going on. One is the substance of the EU and exit and the content of this. The other is that Westminster has become essentially unhinged from the country as a whole and it has its own internal momentum and dynamic which often politics can have. And I don't know where that's going to go. I think it's not necessarily going to go in some sort of super calculated and sort of balanced direction.

HELEN: I’d just say on Norway as well, Norway plus, there has been an effective vote on Norway in the amendment that came back from the House of Lords during I think was June of last year, during their withdrawal deal and only 126 employees voted for that amendment.

KENNETH:So one potential landing zone for trying to get both, having parliament have something to do is of course there's always going to be a need for legislation to implement the withdrawal agreement and we've just been waiting for that to be published, waiting on the vote. One idea would be to publish a draft of that bill and have a very clear piece in that which is about what the role of parliament would be on the back of a political declaration in terms of what instructions it would be giving or could give or what votes it could have on what the government would then actually negotiate once we left. And in a sense it would deflect the attention away from the agreement itself to what would actually parliament do to give some degree of instruction to government. It would be a massive change from what has ever happened in terms of what role parliament has played in terms of the government's role in international negotiations. But it's entirely conceivable that that bill could contain provisions for parliament to have a role in that, and I think it would be a very sensible thing for the government to try and do.

DAVID: But do you think, given what we know about the way the opposition has hardened around so many things and various kinds of uncoupling doesn't seem to cut much ice. But that kind of complicated, and also all of that does require a certain amount of trust or faith going forward… Would that be enough?

KENNETH: But we've got a precedent for it. When the trade bill was going through the was the amendment that was agreed, surprisingly, about medicines, where the clause says that the government will negotiate in the future to have as close a possible connection to the European Medicines Agency and the networks of medicines regulators. So in a sense that was parliament instructing the executive on what it should do in an international negotiation. Well extend that out and say, ‘Well if there are things that you want to have in there, have motions put before parliament that they can debate and then we’ll see where we end up.’

DAVID: But that would require quite a lot of time.


DAVID: On the basic politics of this, as we talk on Wednesday morning, assuming that Theresa May wins her vote. I feel like we've been here before. Let's assume that she is still prime minister tomorrow. As things stand, what it looks like is not Kenneth's proposal, it's some attempt from this executive to reach out, as they say, to parliament and to the opposition to find if there is any common ground. And yet there is no indication as yet that Theresa May is willing to compromise on what she sees as her red lines or fundamental issues, so that’s free movement and also no permanent customs union, as I understand it. Now without movement on those two things, is there any possibility of a consensus in this parliament? [25:52]

HELEN: There could be a consensus, which she might be able to sign up to, to make what is in the political declaration more open ended. It’s already quite open ended.

DAVID: But isn't part of the problem...  well that many people have with it is that it's so open ended? Don’t they want to pin it down?

HELEN: But that's the problem is there isn’t consensus to pin it down. So that is where there is space for compromise in the sense of, okay, we have to postpone having this discussion about the future relationship until we've left the European Union. And some of the reasons I think why there are people on the Labour Party, say I'd say the Stephen Kinnock position, who are not willing to support the withdrawal agreement with the political declaration is because they think the political declaration closes things down too narrowly to Theresa May's position. So if you opened it back up again, not committing to anything because it isn't consensus to commit to anything, but you don't bias it towards Theresa May's preferences as much as it is—even if I don't think it's as much as some people think it is—then you've got the basis for picking some of those people off because I don't think that some of the Labour MP like Stephen Kinnock, who is leading the Norway plus option really want a second referendum.

DAVID: But just on the basic numbers it's not just some of those people you got to pick off. There are 117 Conservative MP who are not going to vote for a more open ended version of this. So you've got to pick off at least 117 opposition Labour, I mean I'm assuming again the SNP aren’t pick-offable on this. So we're talking about close to half the parliamentary Labour Party have got to be picked off. And then you have a prime minister who only is able to pass legislation with the support of half of the opposition, and that is an issue that clearly splits the cabinet. I mean the cabinet I don't think can hold together under those circumstances. I genuinely do not see how you get there.

HELEN: You can do two things you can try to make the political declaration a bit more open ended at the Customs Union and you can try and really reinforce this message that the backstop doesn't make it a guarantee that we're staying in the Customs Union. Now I know that’s saying two different things to two different people, but if you're keeping the possibilities open so that this is a future battle that can fought, probably in as incoherent a way as this one has, then you have got some space to get two different sides back into it.

CHRIS: I think the numbers are just too great. I would probably have agreed had we seen May lose but having brought a reasonably substantial number of people onto her side, and so we are into the into the territory of arguing about what are essentially details—important details, but details. I think the vote last night was something else. I think it was an overwhelming rejection of her deal as a whole.

DAVID: And her. Her style, her approach, her method.

CHRIS: All these things. I think many more people voted against that deal than who are fundamentally opposed to some particular aspect of it.

HELEN: I entirely agree about that.

CHRIS: Other things are going on. And so and the momentum, I think is really very very strong, and it limits the options, I think. It means that the options are pushing very firmly towards an extension. The second referendum has the enormous appeal for MPs that it throws all this difficult stuff back to the people. The MPs I don't have I think a great solution that they want to table. So for them that's very tempting. It also pushes sort of in the direction of some sort of fundamental change where parliament becomes a kind of cross-party unified body that somehow acts… I think negotiating around the political...  I just don't see that as a way out of the current impasse.

HELEN: You've still got to go back to this issue of how this second referendum legislation is going to get through the House of Commons and it's going to have the content that it needs in order to set up that referendum.

DAVID: I just want just one more question on the possibility that this government, Theresa May's government, can somehow get some version of this to pass. Is there any way in which she could have a conversation with some people in Labour, maybe even including Jeremy Corbyn, where the deal is essentially, ‘What would it take for you lot to abstain? And if you abstain, my party, there’s a majority in my party still,’ not least because there's so many government ministers... I mean maybe they would all resign at that point but the payroll more or less gets it through with a few extra. Is there any circumstance in which the deal is to say to Labour, ‘You won't own this because you'll abstain on it, but if you abstain on it, we can just squeak it through.’ I mean it's still going to be tight because of the SNP, and obviously the SNP won’t abstain because… I'm still struck by this, and I wrote about this recently, one of the things that seems to have vanished from British politics is abstaining on these votes. No one abstained on the confidence vote in the leadership vote for Theresa May. As far as I can tell almost no one abstained last night. What happened to abstention? I would abstain because I have no idea what's going on. [30:30]

KENNETH: But I think that a big problem would be is that if a vote comes back on something it's going to be very much similar to what we already have. So how could you just have voted against that one time round and then suddenly decide you're going to abstain the next time round. And I mean Corbyn last night when he was talking in his closing speech was attacking things that weren't just about the political declaration. It was also the transitional period, he was talking of the extension of the transitional period, more contributions being made to the EU budget during that period. He was attacking actually fundamental aspects or core aspects of the withdrawal agreement itself. They're not going to be renegotiated. They're not going to change. So it would be quite odd then, I think, for Labour suddenly to say, ‘Well that thing we were upset about a week ago we’re now  just abstaining on.’

DAVID: Especially since what he's trying to do is bring down the government and force a general election.

HELEN: I think abstentions might yet still come into play. I think the other thing we've got to bear in mind is you've got two groups of people, in particular the ERG and the second referendum people,  who are gambling that they will get what they want, and they can't both be right.

DAVID: No,  that's definitely true.

HELEN: So it's an interesting, in an analytical sense, dilemma that's in play because all the structural, legal, and parliamentary conditions are on the side of the ERG because of the withdrawal act that was passed last time is entirely…

DAVID: And time…

HELEN: Yeah and the political will, fierce political will, is on the side of the stop Brexit, or at least stopping no deal, would be a better way of putting that. So who wins in that contest? I don't know what the answer to that is but only one of them is got any possibility of winning. As it becomes clearer which is more likely to win then the other side has to make a choice. And we haven't got to that point yet, and that's why I think that there is still things to change in this political climate.

DAVID: In a way that that is almost the fundamental question: do you actually think that we are moving to that being the choice? Because even a week ago I would have said, well neither of them are going to win. There's not gonna be a second referendum and there is not going to be an ERG style no deal. Are you saying that now, actually both sides are strengthened in their view that that is the choice?

HELEN: I think that they think that. But I still think there is this possibility of there being sufficient parliamentary consensus to change the political declaration in ways that make it more open-ended. I'm not saying that will happen. I'm just saying I don't rule that out as a possibility.

CHRIS: I think we're getting closer to those big the two options, the ERG and the second referendum. And I don't think the ERG is as strong as they think. They think they're running down the clock in a way but they're not. Extending Article 50 is absolutely possible and reasonably likely, I think, certainly achievable, and all of a sudden the ticking clock disappears and we're into the territory of actually the second referendum as a more viable reason for extending Article 50. Helen's absolutely right, the second referendum is not an easy thing to get through at all. But if the three options are changing the the deal, especially the political declaration in order to get it through parliament as things stand, or just running down to no deal, or extending Article 50 and having a second referendum as the reason for it… I mean I’ve been absolutely wrong on whether this deal would go through or not, but I think the most likely of those options is beginning to be the third one.

KENNETH: I mean if there is another referendum then… I mean do you then see that in terms of the choices as being a choice between this deal and no deal? Or would it be a straight leave

CHRIS: I mean that's again one the reasons why the second referendum is difficult because that’s one of the things that parliament have to decide on.

HELEN: They have to decide in the act of actually passing this legislation. You can't decide to have a referendum and legislate for that referendum then decide these things afterwards.

DAVID: I mean to me it would be really odd for this deal to be put to the people because parliament has resoundingly rejected it, and the other thing I've been really struck by is that in polling, the public hate it too. Parliamentarians seem to hate it because they've come to hate Theresa May, with many of them their personal dealings with her, her refusal to talk to them in a way that they feel gives them respect, what seems to them her kind of blinkered approach. But the public haven’t been dealing with her. And yet, given the options, it's easily the least popular option relative to no deal or a second referendum. People hate this deal too. I don't completely understand why, apart from the fact that they've got it into their heads that this is just some kind of botched political compromise and what people hate at the moment is politics.

KENNETH: I don’t think it’s assured that Mrs. May wouldn't think about presenting this deal. I mean she’s pretty stubborn when she takes a view on things, and I've said before there's a kind of a Hail Mary option that she has, which is actually to embrace the referendum and say, ‘Well, listen, this is where I got to. This is the deal. Parliament isn't going to get it through. But I'm telling you this is the best way a Brexit can actually be delivered and the alternative is you risk Brexit not happening whatsoever. So, you take a view and then you give your instructions your MPss on the back of it.’ I wouldn't be surprised if she at least contemplated it.

DAVID: But it would be a Hail Mary pass because you would lose, I think.

CHRIS: Lose in what sense? You mean the deal would lose?

DAVID: Yes, I think, because that whole mobilized Brexit campaign and campaigning strategy, the kind of uncivil war, the Dominic Cummings/Benedict Cumberbatch view of the world would fall apart because it would not come out for this deal. [35:45]

CHRIS: There's no way you can organise a second referendum in a way that doesn't in some way prejudge the outcome. You just can't. I mean, it's the logic of a second referendum. You've already had it once. The second one will inevitably be connected to what's happened in between. In a way that somehow skews the results. I can't think of a single way in which you could order the questions such that it doesn't in some way, usually it would privilege remain, I think. It's very difficult to imagine it either being neutral or favouring Brexit.

DAVID: So can I ask the general election question? Because the other historical precedent here if you just looked at this, if you kind of went to sleep for three years and woke up and saw parliament was completely and utterly stuck, just kind of unable to move forwards backwards or sideways—traditionally there are two ways out here. One is the general election and the other is some kind of government of national unity. So we're not talking about a government of national unity. It's this odd thing. It's not Theresa May talking about bringing people into her government. It's this sort of consensus that has to be achieved across the parliamentary benches. It’s a legislature of national unity, which is really hard to construct and there isn't really a historical precedent for that. We have a general election. So my feeling is the obvious way out of this, maybe the only way out of this, is to have a general election. But I also see it's politically not going to happen because Jeremy Corbyn is leader of the Labour Party and that disciplines conservatives, and then Theresa May has said she will not fight another election and many people will hold her to that. And I cannot see the Tories having a process to get a new leader in place who would be in a position to fight a general election this year and not lose it.

KENNETH: But the only way of manufacturing the general election as an early general election is in terms of fixed term Parliament Act. And of course there's votes… the confidence vote is a vote in those terms. So if it's lost tonight then we don't get to an early general election. You'd have to then at some other point have a vote amongst MPs where, as they did in 2017, decide that without a conference…

DAVID: That’s Theresa May's other Hail Mary, which is to call on herself, and as it were, defy her own party and say, ‘I know I said I wouldn't fight another one but needs must. I know I’m a useless campaigner but I'll be better this time. It's still Corbyn I'm up against. I am six points ahead in the opinion polls. I am the most popular person when asked who do you want to be prime minister though everyone seems to hate me,’ another one of these weird anomalies of contemporary British politics, but it's not going to happen is it? Apart from anything else she’s not gonna…

HELEN: Also it runs into the fundamental problem that that the parties have put themselves in, is what manifesto does the Conservative Party fight on this election? What manifesto does the Labour Party fight in this election? If Corbyn were to get his way then you would you would end up going into this election with two parties committed to leave, when clearly a significant section of the electorate want one of the two parties—not the Liberal Democrats—to be a remain party. So how… you’re going to tear the Labour Party apart trying to come up with a unified manifesto unless Corbyn was able to impose one effectively like him and McDonnell did last time. And I think it is wrong to say is is there isn't a precedent for there being the legislature acting as some kind of cross-party basis for action in a crisis. Well it was a different kind of crisis, and that was in 1972 with the European Community Accession Act, when it took a cross-party coalition... it took 67 Labour MPs breaking a three-line whip to vote with the Conservative government to get Britain into the European community. So we have been here before. The European issue does this to our party politics.

DAVID: I completely take your point, and you know way more about this than me, but that was on a vote, whereas this is to sort of to create a consensus in the legislature to actually decide on the process and the choices, rather than a choice being presented to parliament and there being a cross-party consensus to get that choice enacted.

HELEN: But this is where I think that this distinction between the political declaration and withdrawal agreement matters because the question to me now is is there some basis for getting more parliamentary consensus around the content of the political declaration? If there is then I think there is a possibility of passing the withdrawal act. And if you look at the cross-party alliance that is currently making the running so to speak in terms of alternative ideas, the Norway plus plus, Nick Boles and Stephen Kinnock. That is what they're trying to do. I mean it cannot be the case that they're trying to reject the withdrawal act because a withdrawal act is not about the future relationship. [40:05]

DAVID: Will the Labour Party leadership allow this? There we go, silent...

CHRIS: I think the Labour Party's calls for a general election are essentially posturing and it comes from the fact that they know… I mean many people on the left know that Corbyn finds himself boxed into this space where he commits to calling for a general election but in the absence of achieving that, he has to give his support to a second referendum. The general election I think could create the sort of space in order to throw up ideas and possible solutions. It would also possibly create a different majority. And Theresa May has been really hobbled by the fact that she doesn't have a majority and relies on the DUP. But I think it just won't happen. And so it's really sort of ushering in, again, more pressure for the second referendum.

DAVID: It is one of the oddities that Labour's position on Brexit is to call for a general election. That in a way for the Conservative Party to agree to a general election is sort of to agree with Labour's position on Brexit. It doesn't make any sense.

HELEN: There's another problem as well with Labour’s general election line of argument from Corbyn, which is is that assuming… I don’t know that I would assume that Labour would win a majority, but let's just say for the sake of argument they won a small majority, and then he does what he says he would do, which is to renegotiate with the European Union. And let's just say for the sake of arguing, which I don't think would happen, that they would reopen the withdrawal agreement and negotiate something else with him and he brings it back to Parliament. How on earth does he think that this withdrawal agreement is going to pass? Because he certainly has got at least 100 hundred MPs who aren't going to vote for it. So then he's got to depend on Conservative votes. So after the Labour Party refused to vote for a Conservative negotiated withdrawal agreement he's gonna ask the Conservative party to vote for Labour negotiated withdrawal agreement. It just it just doesn't stack up.

DAVID: One last question. One reason I think it's very hard to see how Labour would win a majority is because of Scotland. This predates Brexit. One of the fundamental questions of British politics is for Labour to be a majority government again it needs to recover in Scotland. There were signs of a micro recovery at the last general election but in polling again in Scotland, Labour are losing seats again. Going into a general election against an SNP, that is the party clearly committed on the one hand to Remain, and a conservative party which will have its own problems. But the choice is probably going to be one where Labour get squeezed again. Scotland once again is lost to Labour. And once Scotland is lost to Labour, Labour does not win a majority in the United Kingdom, unless, and it is worth saying this, something happens in Scotland. And in all of the Brexit coverage, certainly south of the border, people have not noted that the SNP is in trouble. I mean a good old fashioned political scandal slash falling out between the rival camps of leadership, Alex Salmond, the former leader, and Nicola Sturgeon the current leader. Again, in normal times that would be the big story in British politics because that could really change the equation. That's the thing about general election right, you just don't know.

KENNETH: Another side of it is of course that the Conservatives in Scotland have been the resurgent party over the last few years, and the position that people like Ruth Davidson and Dave Mundell were taking, they were clearly trying to pivot in a slightly different direction from the May government. So there would be a very interesting dynamic there were there to be an election and were, oddly, the Conservatives to pick up seats in Scotland. Where would that then lead the Conservative side? Would that actually lead to a different vision of the future and would that actually be, potentially the thing that then drives drives a future Conservative Party forward in terms of its European position?

HELEN: I think the other thing that is important though is is that the Salmond-Sturgeon conflict does have some Brexit origins in it because they did not agree how to deal with the second referendum issue for Scotland in the aftermath of Brexit. So if you remember that Sturgeon said the day after that there was now material change and that meant a second referendum. And Salmond was pushing for her to move ahead with that a lot more quickly than she was willing to do, and then she retreated from it not least because of what happened in the in the general election. I think for Salmond is is that he understands because it was always his strategy that an independent Scotland requires both the rest of Britain and Scotland to be in the European Union. Once that’s disappeared, or if that’s disappeared I should say, then the whole calculation facing Scottish independence is is very different. And so that's why he was as frustrated as he was with Sturgeon that she didn't push ahead early with the referendum and I think you can start to see the breakdown of their relationship there.

KENNETH: One other possibility is of course that May is running a minority government. Well Labour could run a minority government. We could have a change of government without a general election and that would be an interesting position then to see how could a minority Labor government form any kind of consensus within parliament for a different kind of deal.

DAVID: Do you honestly think that is likelier than any of the other very unlikely options that we've canvassed here? We're still looking for the option that might be likely, but…

KENNETH: If the major constraining factor is time and having to do something...  this is something you could do immediately. It could happen overnight.

HELEN: But you would need the DUP to support Labour.

KENNETH: Yeah but it could happen overnight. Everything else, general elections, other referendums, take time. This could happen immediately.

DAVID: And if it does happen overnight tonight, oh I don't know…

HELEN: The DUP won’t vote with Labour in a vote of confidence even though they oppose the government on the most important issue of the Day. It’s incredibly difficult to see how they provide support for a Labour government. [45:36]

DAVID: It's now just gone 7:30 on Wednesday evening. I'm sitting in my car in  a car park outside my son's basketball game. I just listened on the radio to the result of the vote of no confidence. It was, as everyone seems to have predicted. No one's mind appears to have changed on anything in the last few days despite all the talking. And Theresa May is still there at the heart of this process, the heart of British politics. We have a parliament that seems as though it can't live with her and it can't live without her. Listening to her this evening, her short statement after the vote in which she made an offer to the leaders of the other parties, including Jeremy Corbyn, who didn't sound thrilled to be offered anything, that she would talk to them. She still seems to be the person she's been throughout. She is entirely predictable. And somehow completely unfathomable. It's so hard to work out where or how she is going to give something away. But she must. Or else we leave without a deal. She's offered an amendable motion on Monday. She's been required to provide that and so we'll see. It will be the beginning maybe of the testing of the views of the Commons on some other questions. But there's still no sign of an agreement, a consensus, that can secure a majority. And on Monday we will be five days nearer the 29th of March. Something has to give, and it may be that what has to give sooner rather than later is that date.