What is the toughest challenge facing Theresa May’s government in implementing Brexit? Many people’s answer, especially after the delays and missed deadlines acknowledged in the recent Brussels summit, is striking a Brexit deal with the European Union. In fact the underlying problem is right here in the UK itself and it has nothing to do with Michel Barnier, Jean-Claude Juncker or any of the Brexiters’ usual bogey figures.
That problem, which has existed since the referendum in 2016, is not merely that the Conservative government cannot agree what kind of Brexit it seeks, challenging though that is. The problem is also that, far from being resolved and narrowed, Conservative disagreements about Brexit are deepening and multiplying. The problem, in other words, is here and within the Tory party.
The most immediate evidence for that is the fate of the EU withdrawal bill. Once optimistically dubbed the great repeal bill, this has now become the great standstill bill. It is nearly six weeks now since the bill got its second reading in the Commons, back in the early hours of 12 September. Since then, however, the withdrawal bill has been as immovable through the parliamentary stages as a fatberg in a Victorian-era sewer.
More than 300 amendments have been put down for the Commons committee stage, and more than 50 new clauses proposed. Lacking an overall Commons majority, and with a weak leader and a divided cabinet, ministers are struggling to agree which changes to accept, which to fight and which to try to tweak. Each issue involves having to navigate the Tory party’s obsessive divides, which is hard enough, and then working with the other parties at Westminster.
The upshot is that the detailed committee stage has not begun yet and may not begin before the November recess. With the budget and its necessary legislation looming, and since the government has committed to eight full days of debate in the committee stage (actually too few, and far less than the 23 days allowed in the Maastricht bill in 1993) it seems probable that the committee stage may not be completed – assuming that it starts at all – this side of the new year.
That, though, is only phase one. Next spring, the bill may eventually reach the House of Lords, where there is no Tory majority either, and where pro-European feeling, not least on the Tory backbenches, is strong. There is a real prospect of significant amendments to the bill in the Lords, perhaps for any final Brexit deal to require fresh primary legislation, perhaps including a second referendum on the final terms.
In the past, the Lords have observed the so-called Salisbury convention, which reins in peers’ opposition to bills containing government manifesto commitments. But there is no guarantee that the convention will operate in the Brexit legislation. A report published on 20 October makes clear that all the main parties in the Lords, plus the crossbenchers, take sharply differing views of whether the convention applies under a minority government. The reality is that almost everything is different in 2017 compared with 1945, when the convention was drawn up at a time when an entirely hereditary Lords contained a Tory majority of over 300, and there were only 16 Labour peers. Minority government, moreover, means that government bills have less electoral legitimacy, maybe even none at all.
The withdrawal bill is not a crisis waiting to happen. It is a crisis that is happening already. It is also a Tory crisis. The longer it continues the more it weakens the Tories. On Saturday, Labour’s Keir Starmer proposed six changes – covering transition, ministerial powers, workers’ rights, devolved authorities, human rights and a final say for MPs – that could ease the current gridlock. Mrs May will not want to do a deal with Labour on such terms. But a deal with the EU will only happen if it is clear that Mrs May both knows what she wants and can deliver it. At the moment that is not happening. This way it might.
