Geoffrey Cox is in Brussels attempting to achieve a breakthrough on the backstop. So far, the Attorney General's efforts have not gone entirely to plan – with the word in Brussels that the first night of talks with Michel Barnier went badly. If Cox cannot win a significant concession on the backstop that will allow him to change his legal advice, there is little chance of Theresa May's deal passing next week. However, even if he is successful in his aim there's a chance it won't be enough to win over Tory eurosceptics.
As I write in the i paper, there is an increasing pessimism within the Cabinet that May can pass her deal next week. There are rebels returning to the fold, but at nothing like the speed that would be needed to reverse a 230-vote defeat. If May's deal is rejected next Tuesday, she could become a mere placeholder, in office but not in power, as the Commons spends the rest of the week deciding whether to proceed with no deal or request an extension from the EU. 'This is the point we lose control of Brexit,' says one government source. Another warns that should the Government lose the first vote, whatever happens next will be 'bad'. No 10 aides believe Brexit will only get softer should that happen.
Yet not everyone agrees with that prognosis. Should Cox fail to win a significant change on the backstop, senior Tory Brexiters have begun to wargame a Plan B. At exactly the point Downing Street had hoped Brexiters would get into line, there is renewed optimism among the European Research Group that they can vote down May’s deal a second time and still achieve a clean Brexit. Two methods have been discussed. The first is that MPs would vote down May’s deal and put no deal back on the table. As one senior European Research Group member puts it, 'Brussels are not going to move unless they know we are serious about no deal'. To do this, Brexiters vote down the government deal. Then the next day, MPs can use that vote on no deal to show there is a majority in the House of Commons for proceeding with no deal.
This plan is not without problems. It relies on May whipping her party to keep no deal on the table, and some Labour MPs joining her in the voting lobby. If the Government can’t whip successfully for its own deal, would it have more success whipping for no deal – a policy that a slew of cabinet ministers are virulently opposed to?
The second route to a clean Brexit being talked up by Eurosceptics is to accept a long Article 50 extension as preferable to May’s deal, which would mean falling into the hated backstop. The argument goes that after the period ended, the UK would not be trapped in a permanent customs union – which they worry the backstop would result in. What’s more, they could use the extension to prepare for no deal, install a Brexiter prime minister – and potentially negotiate a better Brexit deal. The problem with this plan is that Brussels could add unfavourable caveats to any Article 50 extension, in order to avoid such a situation (were the EU to do this, May could potentially try and bring her deal back for a third vote).
Many Leave MPs feel that if the deal stays as it stands it's so bad there it little to lose from taking a gamble in the hope of something better. Unless May can convince them otherwise, she will lose the vote next Tuesday and then have to face one of her most difficult choices yet. She would have to decide how to whip her party on the thorny issue of taking no deal off the table or extending Article 50. Either decision would lead to resignations. If May told her MPs to vote in favour of keeping no deal as an option, ministers including Amber Rudd and David Gauke could walk. However, if she told MPs to vote to take no deal off the table, Brexit-backing ministers could walk. This is why some cabinet ministers are urging her to hold a free vote where MPs can do as they please. But a government with no party line on its flagship policy can hardly be described as governing. Unless May can convince the Brexiters her deal is the best route to Brexit, her premiership will enter its choppiest stage yet.