A spanner in the works
Just when you thought the Brexit saga couldn’t get any more manic, the Speaker of the UK House of Commons John Bercow has thrown a major spanner in the works for the Prime Minister.
Amid reports that PM Theresa May was considering bringing her deal back to parliament for a third meaningful vote this week, the speaker made a statement on Monday afternoon explaining the government can't bring the same motion back more than once, citing centuries-old conventions.
Put simply, his ruling means that barring a ‘significant’ change to the deal itself, PM May won't be able to re-table her deal. So what options does the prime minister have?
1 The 'rules are there to be broken' option
Well firstly, the prime minister could look for a way around the convention, and according to the prime minister’s former director of legislative affairs Nikki Da Costa, that might be possible.
Writing in the Telegraph last week, she suggests if the government could prove there is enough support among MPs to have another vote – for example by getting lawmakers to sign the government’s motion – this may be sufficient to bring back PM May's deal for the third time.
There may be a way around Bercow’s ruling, but does it matter anyway?
Costa also suggests there may be other complex-sounding legislative options – for instance adding the wording 'Notwithstanding practice of the House' to the motion.
Failing all of that, the nuclear option would be to end the current parliamentary session altogether, hold a new Queen’s speech and start a new session. This would in effect press the ‘reset’ button on the meaningful votes – although it would also apply to all other legislation currently on their way through parliament.
In other words, there may be a way around Bercow’s ruling – although of course, all of these are fairly drastic measures.
But does it matter anyway? Despite all the reports of negotiations between the Democratic Unionist Party (DUP) and the government over the weekend, the odds still seemed stacked against PM May’s deal. Even if the prime minister manages to win over the DUP, reports indicate that at the very minimum, 20-30 hardline Conservative lawmakers aren't still prepared to rally behind the deal.
Despite suggestions that some Labour MPs may be prepared to prop up the deal (those that support Leave-supporting areas), it’s far from clear, there are enough to offset the Conservative opposition.
2 Renegotiate the wording on future trade
All of this places, even more, focus on alternative Brexit strategies – and brings us neatly on to Mrs May’s other way of getting around the Speaker’s ruling on Monday.
The EU has made it clear it isn't prepared to negotiate on the withdrawal agreement, and a government spokesperson indicated on Monday that the prime minister accepts this. However, when it comes to the political declaration – a document that vaguely outlines aspirations for future trading relations – the EU has made it clear it is open to changes. Unlike the withdrawal agreement, this document isn't legally binding, and could, therefore, be an easier way for Theresa May to tick the 'substantial changes' box when it comes to bringing her deal back.
It's far from guaranteed any of these options would command a majority
But what changes should be made? To find out, this would probably require the government to stage 'indicative votes' on the different Brexit options, which it has promised over the next couple of weeks. These Brexit options would likely include a second referendum, as well as the Labour Party's proposed permanent customs union, and maybe also the 'Norway-Plus' model - (essentially, a single market and customs union).
The problem is that it's far from guaranteed any of these options would command a majority. A second referendum still lacks majority support, and while we suspect a softer Brexit is likely to get enough support, in the end, many moderate Conservative MPs may be very wary of backing a policy that essentially mirrors the opposition Labour party's position.
All of this makes a complex European Council decision even trickier
What'll happen now at the European Council meeting on Thursday/Friday is even more important than ever - and even trickier to predict.
At this meeting, EU leaders will decide on whether to give the UK an Article 50 extension and if so, how long should it last for. Bercow's ruling effectively means the option of a short 'technical extension' is probably off the table unless the government can find a way around. This option would have given the government some extra time to pass all the associated legislation, assuming May's deal passed parliament.
That switches focus to a longer extension, perhaps as long as nine to 12 months, which is reportedly favoured by Germany, France and Ireland (although the Netherlands and Spain appear to be more keen on a shorter delay).
It looks like a final decision may not be made on extending Article 50 this week
Officially, EU leaders have said a good reason will be needed for this to happen, so it's possible that Brussels decides to grant an extension this week, on the condition that parliament must vote on different Brexit options over the next few days ( i.e. before 29 March).
If it did set this kind of ultimatum, it would undoubtedly pile the pressure on lawmakers to rally around an alternative plan - which as we said earlier, would most likely resemble a softer Brexit.
But what happens if parliament doesn't back another Brexit option? Neither side would prefer a 'no deal' exit, so perhaps ultimately some form of extension would still be granted. In the UK, lawmakers may also try to step in to change the 29 March Brexit date, that is currently enshrined in British law.
Having said all of this, nobody truly knows what the EU will decide on the Article 50 extension - and how MPs might react to indicative votes.
But one way or another, it looks like a final decision on extending Article 50 might not be made this week. That means it may not be until the final days or hours of the Brexit process before we know for sure that 'no deal' has been avoided, and for how long a Brexit delay might last.