A no-deal Brexit could still happen, even if MPs vote against it – and this is why

In all the Brexit confusion, one thing we do know is that there is a large majority in the House of Commons opposed to leaving the EU without a deal. In last night’s vote, there were perhaps only 65 MPs who voted against the prime minister’s deal who would rather a no-deal Brexit. That is just one tenth of the total, so there is no doubt that tonight the Commons will vote against leaving without a deal.

There will be more MPs voting for a no-deal Brexit because they think the government needs to use the threat of the economic disruption it would cause as negotiating leverage in the final days of talks with the EU, but the outcome is nevertheless about as certain as it can be.

But even if parliament votes against it tonight, as we expect, the UK could still leave the EU without an agreement.

The votes tonight are merely expressions of opinion. As the prime minister pointed out last night, the only way to be sure of avoiding a no-deal Brexit is for the Commons to vote for something else. It has to vote either for a deal or to delay Brexit.

The prime minister’s motion for tonight’s debate makes this explicit. It says: “That this house declines to approve leaving the EU without a withdrawal agreement…” But then it adds “... on 29 March 2019”. In other words, we could still leave without a deal on a later date, after the “short, limited extension” on which the Commons will vote tomorrow.

Just to drive the point home, the prime minister’s motion also says: “... and notes that leaving without a deal remains the default in UK and EU law unless this house and the EU ratify an agreement”. That is merely a statement of legal fact, and delaying Brexit does not get round that fact.

The only way to take no-deal off the table permanently, other than approving a deal, would be to revoke the Article 50 notice – that is, to cancel Brexit altogether. And there isn’t a majority in the Commons for that either, yet.

Some MPs want to try to rule out a no-deal Brexit more emphatically, and so they are supporting an amendment to the prime minister’s motion in the name of Caroline Spelman, the Conservative former cabinet minister. This simply “rejects the UK leaving the EU without a withdrawal agreement” and deletes the bit about the default.

This amendment is likely to pass because Jeremy Corbyn is expected to whip Labour MPs to support it. If it passes, it will in effect replace the prime minister’s motion, so the reference to the default will disappear. A similar amendment tabled by Spelman on 29 January was passed by eight votes.

But neither that amendment, nor this one, changes the legal position. That means that if parliament fails to vote tomorrow to delay Brexit, or if the EU27 refuse to agree to an extension to the Article 50 deadline, we would still leave on 29 March – with or without a deal.

The endless cycle through the options – leave with a deal, leave without a deal or don’t leave – will continue until parliament finally produces a majority for one of them. A no-deal Brexit can never finally be buried unless the Commons votes for a deal or to stay in the EU.