17 Jul 2019

Battle of Wills. A constitutional crisis will occur if a no-deal Brexit is attempted on 31 October

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A week today will see Theresa May conduct her last Prime Minister’s Questions. In the hours to follow she will leave office and a successor will be appointed. If, as universally expected, this is to be Boris Johnson, a number of dramatic developments will occur quite swiftly.

A large section of the current Cabinet will leave their positions, voluntarily or involuntarily. At least one Conservative MP will probably resign the Whip and this could be enough to tip even the combined total of the Conservatives and the Democratic Unionist Party into a minority situation. A set of others within the ranks of the parliamentary Conservative Party, probably under the de facto leadership of Philip Hammond, who will be by then an ex-Chancellor, will make it clear that their support for a Prime Minister Johnson is contingent on him not taking the UK out of the EU on 31 October on WTO terms (a.k.a. no-deal) without the expressed consent of the House of Commons (which would be most unlikely to offer it).

The stage would then be set for a truly extraordinary series of weeks in which the new Government would attempt to find a formula which would enable it to proceed with a repackaged version of the existing Withdrawal Agreement, and if it could not do so then choose between abandoning its principal campaign promise of departing the EU on 31 October in favour of a further extension, or seeking to extract the UK from the EU on that date but without a full deal. The drama of the past several months would be nothing compared with what might be witnessed.

It might not come to this. As BVCA Insight set out last week, there are reasons to believe that a PM Johnson would have more chance than Mrs May ever did at enacting the legislation required for an orderly Brexit to be executed. The timetable is, though, exceptionally tight, but if a Withdrawal Agreement Bill were passed by the House of Commons by 31 October then that would probably be considered a sufficient achievement for the Government to seek a short extension of Article 50 and retain enough political credibility to survive the experience.

Yet it is manifestly possible in the days running up to the EU Council on 17 and 18 October, the logical point at which to move towards a new date for the legal and political divorce to take place, that Parliament is still not able to agree on a Withdrawal Agreement. At that point, with no-deal looming, the gloves will come off. It will be a constitutional clash of a sort unseen in modern times as the legislature attempts to impose itself on the executive and the executive has to decide how far it is willing to go to resist this.

Can the House of Commons kill a no-deal Brexit on 31 October?

The short answer is ‘yes’ but it would be a politically brutal exercise. It would more likely be seen through legislation than the truly nuclear option of a no confidence vote followed by a short-term alliance to appoint a different Prime Minister who would request an additional extension of the EU in time to avert a 31 October ‘cliff edge’.

The approach would be similar to the methodology deployed in April to force a statute through the House of Commons (and then the House of Lords) in abnormally swift time. This ‘Cooper-Letwin’ strategy would be more complicated potentially at the second time of asking because the Government might seek to avoid bringing forward any forms of legislation which could be hijacked by a hostile amendment claiming control of parliamentary time to allow a new Cooper-Letwin Bill to be debated and voted on. The incentives for attempting to avoid this fate would be higher for Boris Johnson than it was for Mrs May as she self-evidently did not want to see the UK crash out of the EU on 29 March and was always ready to ask for more time from the EU to deliver a deferred Brexit with a Withdrawal Agreement. She did not resist the will of the House of Commons as forcefully as she might have done. Boris would have to fight back harder.

Yet, if the House of Commons wanted to bind his hands then it could do so. The probable device is an otherwise obscure rule of the House of Commons known as a Standing Order 24 debate. Under SO24, any MP can petition the Speaker of the House of Commons to hold an emergency debate on a subject of urgency. It then falls to the Speaker alone to decide whether or not the House should have the opportunity to decide, via a vote, whether it wanted such a debate (which would usually be on the next sitting day). If the House backed such an application and the wording of the motion was deemed by the Speaker to be in what is known as ‘substantive’ terms, then amendments to it could be tabled which the Speaker, and the Speaker alone, could then determine whether or not to accept. It is those amendments which would allow a majority in the House to seize parliamentary time and start the process of enacting legislation extremely quickly.

It would be an extremely unorthodox use of the rulebook (to put it mildly) but it would be in order. The Prime Minister of the day would find that he had been legally obliged to return to the EU with a later date for the UK’s departure from it. If by the Monday after the EU Council – Monday 21 October – a no-deal Brexit looked imminent then that is the point at which the procedure set out above would be initiated.

What about prorogation?

It is precisely because ministers know that a majority in the House of Commons could force them to secure an extension to avert a no-deal Brexit that prorogation has been mentioned. It was first floated by Dominic Raab during the early stages of the Conservative Party leadership election and Mr Johnson (whom Mr Raab now endorses) has declined to rule it out entirely. It would mean that the Prime Minister would advise the Monarch to dismiss Parliament temporarily and not to recall it until after the 31 October deadline had come and gone and hence the UK had left the EU without a deal despite a majority in the House of Commons existing which opposed that course of action.

There is a precedent of sorts in the democratic era for operating in this fashion. In 1948, the then Prime Minister Clement Attlee convinced King George VI to prorogue the House of Commons for a short period and then bring it back into session. This was a device which made it easier for him to enact the Parliament Act 1949 (reducing the blocking powers of the House of Lords) which the Upper House had been resisting.

The crucial political difference, however, was that in 1948 tactical prorogation was employed to allow a majority in the House of Commons to have its way on an issue (legislating for the Parliament Act), not to prevent a majority in the House of Commons having its way on an issue (legislating to stop the UK leaving the EU without an agreement with it in place).

There would be strong arguments provided that the Monarch was within her rights not to agree to shut down Parliament. Either way, it would be a constitutional crisis of the very highest order. It would be all but certain that once the House of Commons was restored it would vote out the Prime Minister. Prorogation cannot be dismissed because it exists as a weapon but it seems most unlikely. It is more plausible that there would be a short extension followed by a general election campaign.

So is a no-deal Brexit on 31 October impossible then?

A no-deal Brexit on 31 October which was actively opposed by a majority of MPs is extremely hard to contemplate. It cannot be ruled out entirely because something might transpire which means that a majority of MPs are not against it, or it is just about imaginable that there might be some kind of interim accord between the UK and the EU that falls short of a ‘deal’ but is also not a ‘no deal’, or, despite the preference of the UK House of Commons for a further extension of Article 50, the EU-27 (or a single nation, as any extension requires unanimous approval) decided not to allow for this. Of all of these possibilities, perhaps paradoxically, it is this last one which is the least hardest to envisage.

Tim Hames
Director General, BVCA


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