Going for Broke. Where does the PM stand after a week of defeats, expulsions and resignations?

Parliament is now in recess for a full five weeks. No one will be more pleased by that fact than the Prime Minister. For the first five weeks that he was in Downing Street, but without MPs sitting in Westminster, he was the one making the political weather, in campaign mode, and making quite an impact. Once the House returned to business, even for a short stretch, the tables were turned.
His hope must be that once a few days have passed, he can return to his previous approach and with similar effectiveness. Even so, he will now be functioning in the knowledge that legislation has been enacted which obliges him to seek an extension to Article 50 if he cannot strike a new deal. Despite bluster to the contrary, this is a very important development and it hugely complicates what at one stage had appeared a relatively straightforward route to a snap election that he would surely win.
And now the Scottish courts have sought to throw a spanner in the works asserting that the recent prorogation was illegal. This may not survive an appeal to the Supreme Court which sits next week. It would be rather extraordinary if the judiciary could order the legislature when to meet.
What went wrong for the Government last week?
Downing Street knew that even a very short September session offered the danger that anti no-deal legislation would be rushed through Parliament. In some ways, it was an outcome that appealed to them. It opened the door to a very quick election indeed, with 10 October the best option.
Their assumption, though, was that any new law would be very similar in style to that of ‘Cooper-Letwin’, which was endorsed in April to avoid a no-deal on 12 April. That set a time very close to the moment of exit when the Prime Minister had to ask for an extension, but was not very precise about exactly how that request should be framed. A repeat of this formula would have allowed time to hold an election and, if the Government was victorious, to reconvene Parliament and repeal the new law before it could be imposed on the Prime Minister. Alas for Boris Johnson, Sir Oliver Letwin is a very clever chap and had seen that one coming. What he devised triggered a series of highly adverse events for the PM.
The Bill produced last week made 19 October the crucial date on which Mr Johnson had to write to extend Article 50 and laid down specifically in law how he had to it. This was less a set of handcuffs than a straitjacket. It is extremely implausible that even if there could be an election on 10 October that there would be time to reconvene Parliament, swear in MPs, elect a Speaker, introduce the Queen’s Speech and legislate to repeal this Bill in both the House of Commons and House of Lords (a chamber that is staunchly anti-Brexit). The provisions on how the extension was to be sought were also designed (by some very eminent legal minds) to allow Downing Street minimal wiggle room.
Once they had seen the Bill, the Prime Minister and his team decided to respond by raising the threat level to Conservative MPs who might be tempted to vote for it to the withdrawal of the whip. While an extreme measure, it was the only choice they had other than meekly accepting a defeat. To near universal astonishment at Westminster, this move increased the size of the rebellion. The PM found himself obliged to see through what he had said he would do and destroy his own very tiny majority by sending 21 former colleagues into exile. They would be joined, in effect, by his own brother, Jo Johnson, walking out of Cabinet and as an MP, and then by Amber Rudd, who ended her time as Secretary of State for Work and Pensions to become an Independent Conservative as well.
Finally, again to wide surprise, Jeremy Corbyn, whom Mr Johnson assumed could not do anything else but vote for an early election in all circumstances, was convinced to change his mind and insist that any motion for such a contest would only be taken seriously after 31 October. This switch appears to have been engineered by John McDonnell, who brokered a deal between Mr Corbyn and senior members of the Shadow Cabinet, under which he would defer the election beyond October and they would not use the party conference to spring him into embracing a second referendum on EU membership where the choice was between Remain and no-deal, with Labour championing Remain.
Is the Prime Minister really prepared to defy the law and risk imprisonment?
This is highly unlikely. There are a number of scenarios that could come to pass despite the arrival of an Act of Parliament which would appear to undermine him enormously. The first is that there may still be a deal reached on an alternative to the Withdrawal Agreement which could become law by 31 October allowing the UK to exit the EU entirely legally and properly on his preferred date. This might seem improbable today but the incentives for all sides not to let Brexit drag on are sizeable.
The second is that the EU-27, which has to be unanimous on the matter, might well not agree to the extension of Article 50, either out of collective exasperation with London or because a rogue member (Hungary is the obvious candidate) might veto the notion at the behest of Mr Johnson. This would mean that the UK left the EU without a deal on 31 October despite the preferences of Parliament. This would be intergalactically controversial, but it certainly cannot be ruled out of the equation.
If neither of the above happen, then, after high-profile protest and resistance, Mr Johnson would have little choice but to obey the law and seek the extension. What he would probably acquire as part of the package is a mutual understanding that the delay would be deployed for an election. He would then revert back to a ‘People versus Parliament’ formula, albeit on a later date than wanted. If he were seen by Leave supporters to have tried his very best to get them out on 31 October but had been undermined by an elite conspiracy of those who intend to block Brexit then the political damage to him of having failed at the first attempt would probably not be anything close to fatal.
So, will we have an election relatively soon then?
The balance of probability is that we still will. Most scenarios point in that direction. If the UK does leave the EU with an agreement on 31 October, then it is hard to envisage how Mr Corbyn could resist the hustings any longer. If an extension is forced on Mr Johnson to 31 January then, as set out above, he would demand that the public settled the question of whether there were to be any more extensions at the polling stations.
It is also possible, with its majority dispersed to the wind, that the Government will lose on the Queen’s Speech vote on 21 or 22 October, or was brought down in a vote of confidence shortly after that. The Prime Minister might even attempt to engineer that defeat. To do so, nevertheless, would mean that he had to find a scheme which would allow him to restore the Conservative whip to all or most of those who have had it taken from them. Finding a mechanism to do so that did not enrage the pro-Brexit branch of the Conservative Party would not be simple. It is conceivable in conditions where the UK did depart the EU with a deal on 31 October. It is unimaginable if Mr Johnson is open to the charge that he has allowed the UK to be thrown out.
An election is not entirely inevitable. If the UK leaves the EU with no-deal on 31 October then all the resources of Whitehall will be trained on making that as smooth a transition as humanly possible. It would hardly assist that cause to force an election and to close down the Government during this time.
The other argument against an election is the raw political one. If Downing Street looked at the polls in early November and did not like the numbers, it could always find an alibi not to have an election in the same way that Mr Corbyn found his reason why he did want an election in October.
The failure to secure a general election last week and on Monday night does mean there would probably not be a contest in November. It would be at some time between 9 and 19 December. Whether this is the Christmas present that the country is crying out for is another question entirely.
Tim Hames
Director General, BVCA