There has been much speculation as to what will happen when Theresa May loses the Commons Brexit vote, as she almost certainly will, on Dec. 11th. Most observers don’t expect that vote to be even close, with some estimating a margin in excess of 100 votes. Some speculate such a defeat will finally trigger a challenge to May’s leadership. But if Rees-Mogg’s co-conspirators couldn’t even muster 48 votes the last time around, it seems hardly likely they will be able to achieve the 158 votes required to win a vote of confidence against her leadership and trigger a leadership election.

The downside for them is that the rules dictate that they won’t be able to issue a renewed leadership challenge for another 12 Months if they fail. So they had better get it right the first time around. A lot will depend on how badly she still wants the job. So far she has won some grudging admiration even from her opponents for how she has stuck to her task against seemingly insurmountable odds.

The other downside is that the rules suggest a 12 week timeline for a full leadership challenge and the election of a replacement, which almost takes us outside of the Brexit timeline altogether. It’s hard to see the EU Council extending the A. 50 deadline just to allow a Prime Minister Johnson settle into his job. They have fulfilled their A.50 obligation to negotiate an exit deal. He can take it or leave it. The internal machinations of the Tory party are none of their concern.

But there is an alternative scenario…
Suppose May does lose the vote and declares that she will renegotiate the deal with the EU to “take account of the objections of the House”. Conservative MPs will be reluctant to pull the trigger before they can see what alternative deal she can come up with. Of course the EU Council have declared that the negotiations are over and cannot be re-opened, but there is one change that they, just, might be prepared to consider.

The original back-stop proposal involved just Northern Ireland remaining in the Customs Union and Single market (CUSM) if no alternative solution to keeping the Irish border open could be found or agreed. The DUP objected vociferously on the grounds that that would result in a border “down the Irish sea” and threaten the Union between N.Ireland and Great Britain.

In response, Theresa May agreed to keep all of the UK within the CUSM until an agreed solution to keeping the Irish border could be found – meaning effectively no border down the Irish sea. This also enabled Theresa May to minimise disruption for UK business until such time as a comprehensive free trade agreement between the UK and EU could be negotiated and agreed – and an alternative solution to keeping the Irish border open could be found.

This deal was greeted with howls of protest from both Brexiteers and Remainers, who noted that free trade deals can take many years to negotiate, and that the UK could remain stuck in the CUSM almost indefinitely, without a say in the ongoing development of its regulations, and without being able to negotiate its own trade deals or achieve full control of freedom of movement. For Remainers it was so obviously inferior to full membership. For Brexiteers the promise of a global Britain securing more favourable trade deals around the world was postponed indefinitely.

What has been less remarked upon is that it was also rejected by the DUP. For the DUP, anything, but anything, which hints at N. Ireland being treated any differently to the rest of the UK is an absolute no no, and they have a lot of practice at saying NO! Despite the fact that Theresa May’s current deal offers them the best of both worlds – access to the Single Market and the UK market with no hard borders – they have rejected it outright – to the howls of protest from the N. Ireland business and agricultural lobbies, who can recognise a gift horse when they see it.

But the DUP rejection also provides Theresa May with an opportunity should she wish to grasp it. As the DUP votes are lost anyway (and as they have been making common cause with Boris Johnson) she can revert to the original backstop proposal of retaining N. Ireland, only, within the CUSM until such time as an alternative solution to keeping the Irish border has been found. This would require at least a temporary border down the Irish sea, but she can argue that there are already controls on food, livestock and agricultural products down that border, and that these have no constitutional implications for N. Ireland’s status within the UK whatsoever.

She can present this “new” proposal to the Commons as an enormous concession by the EU, even thought that was the original EU proposal in the first place. Great Britain will be free to leave the CUSM any time it chooses, and N. Ireland can follow just as soon as an agreed mechanism for keeping the Irish border open has been found.  The DUP will of course again vote against, but Theresa May can hope to bring many more Remainer and Brexiteer votes on board to vote for a proposal which does not tie Britain to the rules of the CUSM indefinitely, or prevent it from negotiating its own trade deals.

Does this mean that Theresa May will win a second vote on this new deal? Probably not, as she doesn’t have an overall majority without the DUP’s 12 votes. However it does mean that the margin of defeat could be reduced from possibly over 100 to less than a dozen or so. Enough to raise hopes that a few Labour MPs could be seduced to voting for the deal by a knighthood, or frightened into voting for it as a no deal Brexit looms.

It would, at the very least, increase Theresa May’s bargaining leverage with the SNP, Lib Dems, and Labour as a hard “no deal” Brexit day approaches. If she survives that long. Or even wants to.

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