Boris Johnson and his government have been sending out mixed messages about the possibility of a no-deal Brexit on 31st October. On the one hand they claim that there is only a “million to one” chance of no deal happening, while on the other they are preparing to spend increasingly large sums preparing for it. A lot of individuals and businesses are apparently assuming that parliament will block a crash out. The question is, can MPs really stop a prime minister determined to push that outcome through?
There are several formidable obstacles for parliament to overcome. The countdown of the Article 50 timer, and the main pieces of Brexit legislation—the EU (Notification of Withdrawal) Act 2017 and the EU Withdrawal Act 2018—mean that if nothing else happens, the UK leaves the EU on 31st October. To change this, either a prime minister voluntarily asks for a further extension of Article 50 (which requires the agreement of the EU), or revokes the Article 50 letter (which the UK can do unilaterally at any time before we leave). Alternatively, parliament compels him to take one of these actions.
The timetable between now and 31st October is extremely tight. Parliament resumes for just over a week at the start of September and then goes into a three-and-a-half week recess for the party conferences. So there are only about four working weeks before Brexit Day in which to do anything.
So what are the options? Of course it is always theoretically possible for the government to strike a deal with Europe and implement it before 31st October, but no serious commentator truly believes that is realistic in the time available. Or that MPs would necessarily endorse such a deal.
A more plausible option could be to amend government legislation, to nullify or suspend the effects of the 2017 and 2018 Acts and compel Johnson to seek an extension. But there are problems with this. There are in theory five Brexit-related Bills covering trade, agriculture, fisheries, immigration and social security, and financial services remaining to be passed. Another Bill, to re-introduce direct rule to Northern Ireland in the event of no deal, would also be necessary unless the NI executive is restored.
Yet the government seems to think that it doesn’t need to pass any further Brexit-specific legislation before 31st October. The influential Institute for Government (IfG) seemed to endorse this possibility in its recent report. It would create huge risks, but the IfG may be right in saying these Bills do not strictly have to be passed ahead of no-deal. In that case, MPs would possibly have nothing to amend.
The next problem is that even if any of these Bills are brought forward, it is not certain the speaker would allow amendments that would effectively stop no-deal from happening. John Bercow is widely thought to be pro-Remain and he is certainly very clear that parliament should have a voice before no-deal is allowed to happen. But that does not mean any old wheeze that the anti-no deal MPs come up with will be endorsed. He has already ruled several times in ways unhelpful to their cause. There is no guarantee he won’t do so again.
What’s left? MPs can try to do what they did in March when an amendment tabled by Oliver Letwin set aside a day when MPs, rather than the government, could determine the business of the Commons. This eventually led to the passing of Yvette Cooper’s amended EU (Withdrawal) Act 2019, against the government’s wishes. But, as Commons researchers point out: “if a majority of MPs can agree, all that is needed to override the precedence of government business is an order of the House of Commons. However, the opportunities to vote on a motion that could become an order are limited.”
The Letwin-Cooper manoeuvres showed it is possible, but difficult, for the House to pass legislation in this way. There could be a short Bill to compel a request of extension to Article 50 (as last time) or to rule out no deal by amending the 2018 EU Withdrawal Act, forcing Johnson to seek extension in practice. Remember though that only a change to the law will actually compel Johnson to change course—a simple resolution, even if it was passed overwhelmingly, could be ignored. Remember also that even if this succeeded, the EU27 need to unanimously agree to an extension, which is by no means guaranteed.
Yet another possibility is a vote of no confidence (VONC) in the government under the Fixed-term Parliaments Act. This would trigger a 14-day countdown to a general election unless a contrary resolution that “this House has no confidence in Her Majesty’s government” were passed.
Of course, there is no guarantee that Johnson would resign as PM if he lost the first vote. He would be free to try to pass the second motion by various ploys.
Could a Labour or a national government be formed in those 14 days? Possibly, but it would be tricky. Some mechanism would have to be found to get the Queen to sack Johnson and install a new PM before the subsequent vote of confidence. That would almost certainly require a vote in the Commons asking the Queen to do that—possibly in the form of a “Humble Address” (although this has only been used to demand papers from the government so the speaker might veto its use in this context). It seems impossible that Jeremy Corbyn could command a majority, so a national government looks more plausible, though still highly unlikely for both political and constitutional reasons. If an election were triggered, Johnson would probably enter as the incumbent PM.
So lastly, could an election solve the problem? Assuming that Corbyn puts down a VONC at the earliest opportunity (and it has to be him)—the 3rd September—and it is passed on the 4th, the earliest possible date for a general election would be 25th October. Any later than 3rd September risks the election not happening before Brexit. If a new PM won, with a majority, and took over on 25th October, and if they asked the EU for an immediate extension, and if all other 27 EU members agreed, a no-deal Brexit could be halted. That is a lot of ifs. The new PM might be forced to revoke Article 50 if the EU would not agree an extension—although this seems unlikely.
It is worth adding that Johnson can probably trigger a “back me for Brexit” general election (by asking for a two-thirds vote in the House of Commons) at virtually any time and put a spanner in any well-laid plans of MPs. If they want to block no deal they are going to have to work hard to do it. Buckle up.
There are several formidable obstacles for parliament to overcome. The countdown of the Article 50 timer, and the main pieces of Brexit legislation—the EU (Notification of Withdrawal) Act 2017 and the EU Withdrawal Act 2018—mean that if nothing else happens, the UK leaves the EU on 31st October. To change this, either a prime minister voluntarily asks for a further extension of Article 50 (which requires the agreement of the EU), or revokes the Article 50 letter (which the UK can do unilaterally at any time before we leave). Alternatively, parliament compels him to take one of these actions.
The timetable between now and 31st October is extremely tight. Parliament resumes for just over a week at the start of September and then goes into a three-and-a-half week recess for the party conferences. So there are only about four working weeks before Brexit Day in which to do anything.
So what are the options? Of course it is always theoretically possible for the government to strike a deal with Europe and implement it before 31st October, but no serious commentator truly believes that is realistic in the time available. Or that MPs would necessarily endorse such a deal.
A more plausible option could be to amend government legislation, to nullify or suspend the effects of the 2017 and 2018 Acts and compel Johnson to seek an extension. But there are problems with this. There are in theory five Brexit-related Bills covering trade, agriculture, fisheries, immigration and social security, and financial services remaining to be passed. Another Bill, to re-introduce direct rule to Northern Ireland in the event of no deal, would also be necessary unless the NI executive is restored.
Yet the government seems to think that it doesn’t need to pass any further Brexit-specific legislation before 31st October. The influential Institute for Government (IfG) seemed to endorse this possibility in its recent report. It would create huge risks, but the IfG may be right in saying these Bills do not strictly have to be passed ahead of no-deal. In that case, MPs would possibly have nothing to amend.
The next problem is that even if any of these Bills are brought forward, it is not certain the speaker would allow amendments that would effectively stop no-deal from happening. John Bercow is widely thought to be pro-Remain and he is certainly very clear that parliament should have a voice before no-deal is allowed to happen. But that does not mean any old wheeze that the anti-no deal MPs come up with will be endorsed. He has already ruled several times in ways unhelpful to their cause. There is no guarantee he won’t do so again.
What’s left? MPs can try to do what they did in March when an amendment tabled by Oliver Letwin set aside a day when MPs, rather than the government, could determine the business of the Commons. This eventually led to the passing of Yvette Cooper’s amended EU (Withdrawal) Act 2019, against the government’s wishes. But, as Commons researchers point out: “if a majority of MPs can agree, all that is needed to override the precedence of government business is an order of the House of Commons. However, the opportunities to vote on a motion that could become an order are limited.”
The Letwin-Cooper manoeuvres showed it is possible, but difficult, for the House to pass legislation in this way. There could be a short Bill to compel a request of extension to Article 50 (as last time) or to rule out no deal by amending the 2018 EU Withdrawal Act, forcing Johnson to seek extension in practice. Remember though that only a change to the law will actually compel Johnson to change course—a simple resolution, even if it was passed overwhelmingly, could be ignored. Remember also that even if this succeeded, the EU27 need to unanimously agree to an extension, which is by no means guaranteed.
Yet another possibility is a vote of no confidence (VONC) in the government under the Fixed-term Parliaments Act. This would trigger a 14-day countdown to a general election unless a contrary resolution that “this House has no confidence in Her Majesty’s government” were passed.
Of course, there is no guarantee that Johnson would resign as PM if he lost the first vote. He would be free to try to pass the second motion by various ploys.
Could a Labour or a national government be formed in those 14 days? Possibly, but it would be tricky. Some mechanism would have to be found to get the Queen to sack Johnson and install a new PM before the subsequent vote of confidence. That would almost certainly require a vote in the Commons asking the Queen to do that—possibly in the form of a “Humble Address” (although this has only been used to demand papers from the government so the speaker might veto its use in this context). It seems impossible that Jeremy Corbyn could command a majority, so a national government looks more plausible, though still highly unlikely for both political and constitutional reasons. If an election were triggered, Johnson would probably enter as the incumbent PM.
So lastly, could an election solve the problem? Assuming that Corbyn puts down a VONC at the earliest opportunity (and it has to be him)—the 3rd September—and it is passed on the 4th, the earliest possible date for a general election would be 25th October. Any later than 3rd September risks the election not happening before Brexit. If a new PM won, with a majority, and took over on 25th October, and if they asked the EU for an immediate extension, and if all other 27 EU members agreed, a no-deal Brexit could be halted. That is a lot of ifs. The new PM might be forced to revoke Article 50 if the EU would not agree an extension—although this seems unlikely.
It is worth adding that Johnson can probably trigger a “back me for Brexit” general election (by asking for a two-thirds vote in the House of Commons) at virtually any time and put a spanner in any well-laid plans of MPs. If they want to block no deal they are going to have to work hard to do it. Buckle up.
