Deal or No Deal: Revisiting Theresa May’s Brexit Defeat

JCMS | 20 December 2021

Theresa May and the shaping of the Brexit process

With the provisional entry into force of the EU-UK Trade and Cooperation Agreement (TCA), the dust is far from settled on the Brexit process. And yet the culmination of the formal stages of talks on the terms of withdrawal and the future relationship – however ‘thin’ and contested – offers an opportunity to reflect on the key moments that shaped the negotiations over the years.

While Boris Johnson’s bombastic approach and set-piece parliamentary stunts have attracted more attention recently, it was under his predecessor, Theresa May, that the contours of the Brexit process were decisively shaped.

May’s interpretation of the Brexit mandate as binding, her resolve to keep the Conservatives united and her corresponding failure to reach out to the opposition, her secretive and centralised decision-making style, and her push for a ‘bespoke’ deal through a ‘hard bargaining’ strategy – all of these left indelible marks on the Brexit process.

In the end, May’s catastrophic defeat in the UK Parliament, on three separate occasions in 2019 (15 January, 12 and 29 March) not only highlighted the difficulties of Brexit, but also exposed to many the flaws in May’s negotiating strategy and the pitfalls in her closeted and uncommunicative approach to the mammoth task of EU withdrawal. The prime minister’s defeat also set the stage for Johnson’s usurpation of her role, and the ensuing efforts to drive and harder bargain and ensure greater autonomy from EU rules after withdrawal.

May’s failure to pass the Withdrawal Agreement in early 2019 did not surprise some – least of all her critics – but it is puzzling that a prime minister would undertake to secure an agreement without the requisite support at home. ‘Involuntary defection’, as the literature on negotiations terms such occasions, happens rarely, precisely because leaders have little incentive to sign up to terms which their domestic support base might reject.

Explaining the fate of the Withdrawal Agreement

The conventional wisdom has it that May’s early approach to the Brexit negotiations – her unsuccessful hard bargaining, her failure to reach out to the opposition, and her numerous strategic errors – cost her the support of Parliament.

But this view makes a number of assumptions which – with no desire to exonerate May – we might find questionable.

It assumes a “better” deal might have been available, which is at odds with the EU’s clear and unchanging offer of the terms of withdrawal and with the imbalance of power between both sides. It assumes soft bargaining might have worked better than hard bargaining, when it is more likely a conciliatory approach would have landed May in a similar situation, not least vis-à-vis her Conservative compatriots.

It also assumes that MPs were voting on the basis of a deal they wanted to see, when in reality there was very little chance the UK could negotiate a deal that would fully satisfy the outlandish aims of the hard Brexiteers or the bespoke goals of softer Brexit supporters, let alone those who wished for the UK to remain in the EU. The reality is that MPs would always be voting for a least-worst outcome, and that they had their eyes on the alternatives to an agreement as much as the agreement itself.

Take-it-or-leave-it

Acknowledging this, I argue in a recent article, provides the key to understanding the failure of May’s Withdrawal Agreement: It would always have to have been passed under some form of duress, given the inequalities in the EU-UK relationship and the divergence between domestic and external ‘win-sets’ – that is, between Brussels and the Tories.

And the requisite pressure could be easily supplied by a combination of the Article 50 process and the executive’s traditional dominance under the UK constitution.

Article 50 established that a damaging ‘no deal’ cliff-edge would become the default outcome in the event both sides failed to negotiate an agreement within two years, and locked this commitment in through the unanimity requirement for the granting of any extension.

The UK constitution, meanwhile, afforded the government considerable leeway in determining the timing and the nature of any vote on the terms of withdrawal, effectively allowing the government to run the clock down with impunity until a final vote, which the government indicated might be offered after the UK had left the EU.

Combined with fortuitous political circumstances – namely, the extremely low proportion of pro-Brexit MPs and a widely held belief that the mainstay of opposition would come from Remain supporters, for whom a ‘no deal’ scenario was unconscionable – these factors, when taken together, offered the prospect of presenting the negotiated agreement to parliamentarians with no effective choice of an alternative.

Under conditions so propitious to passing any agreement better than ‘no deal’, it is perhaps no wonder May took liberties with her demands and decided against any overtures to the political opposition.

The changing circumstances of the vote

But the circumstances of the final Brexit vote – and indeed the government’s advantageous position – was greatly altered by the political and constitutional upheavals wrought about as the negotiations got underway.

Support for ‘no deal’ Brexit increased precipitously within the Conservative party, as political entrepreneurs sought to highlight the deficiencies in the deal May was negotiating. While not all Conservative no deal supporters were likely to support going over the cliff, the shift in position made them less vulnerable, on the face of it, to May’s threatened outcome were they not to support her deal.

Not only did Conservative support for no deal shift the parliamentary calculus, it also influenced the government’s signalling strategy, making it far more complex. Instead of claiming that ‘no deal was better than a bad deal’, May changed tack, and by late 2018 was offering a more confusing choice between ‘no deal’, her deal, and ‘no Brexit’.

Although the ‘no Brexit’ threat was aimed at pro-Brexit Conservatives, its emergence proved a game-changer for Remain supporters, giving them more reason to reject May’s deal. The possibility of Brexit not happening at all was reinforced, in

Most important, perhaps, the circumstances of the vote itself shifted, as parliamentary activists – mainly Conservatives but with cross-party support and the tacit backing of Commons Speaker John Bercow – sought to take advantage of May’s non-existent majority to wring concessions out of the government on the circumstances of the vote.

Parliamentarians succeeded in obtaining a commitment to a ‘meaningful vote’ from the government in late 2017 by holding hostage the EU (Withdrawal) Bill, thereby ensuring the government would not leave the vote until the last minute. As the vote approached, in January 2019, they also tied the government into presenting new proposals to Parliament in the event the deal was rejected, and over the subsequent weeks Conservative rebels – acting in unison with the Labour opposition – would succeed in committing Parliament against ‘no deal’.

Taken together, what these developments amounted to, over the course of 2017-2019, was to remove the beneficial combination of political, constitutional, and discursive factors that enabled the government to present its naturally unpopular Withdrawal Agreement to legislators as the only palatable option against the damaging (and inevitable) no deal backdrop.

Why it matters?

Re-assessing the reasons for May’s dramatic defeat in early 2019 are important, not least because of the consequences it came to have for the Brexit process, and thus the subsequent direction of the UK also. Accounting for the change in the vote’s circumstances not only helps us understand the reasons why May was unsuccessful in her efforts to deliver Brexit, but also why she made key decisions which – coupled with these altered circumstances – would seal her fate as prime minister, and that of her preferred Brexit outcome.

And there are good theoretical reasons to play closer attention to this period, not least given the relative obscurity of examples of involuntary defection. May’s experience with the Withdrawal Agreement helps us to understand how the ‘rules of the game’ – so often treated as exogenously defined by existing theories – can change during the course of negotiations. Moreover, it shows that change can come from below, not just from above, as domestic actors in weakened circumstances find innovative legal and political ways to shift the balance of fortunes in their favour.

This blog post draws on JCMS article, “Deal or No Deal: Theresa May’s Withdrawal Agreement and the Politics of (Non-)Ratification”

Benjamin Martill is Lecturer in Politics and International Relations at the University of Edinburgh, where he conducts teaching and research on Brexit, European security, and the politics of foreign policy. Benjamin is co-editor (with Uta Staiger) of Brexit and Beyond: Rethinking the Futures of Europe (UCL Press).

Twitter: @EdinburghPIR