The possibility that the House of Commons may wish to prevent a no-deal (or, more accurately, a "Crash-out") Brexit taking place on 31 October is producing further constitutional talking points. In March 2019 the House was opposed to no-deal - BBC News 14 March 2019. The new Prime Minister has said that Brexit will take place on 31 October “whatever the circumstances” - The Guardian 5 August. A no-deal Brexit entails leaving a deeply-integrated and barrier-free market with 27 other member States and over 510m people. The UK will also leave Euratom. No-deal will also have serious consequences in other areas such as Police and Judicial Co-operation - Law Society February 2019.
This previous post (1 August 2019) reported
the appointment of former diplomat Mr David Frost as a Special Adviser (SPAD) to Prime Minister Boris Johnson and noted that Mr Frost was visiting Brussels to talk with EU officials. The No. 10 Downing Street website is replete with "electioneering-style" announcements regarding matters such as money for the NHS but there has not been any official communiqué regarding Mr Frost's activities.
The EU's stated position is that the withdrawal agreement is not open for re-negotiation but talks on the political declaration are possible. So far, the Johnson government has not announced any new proposals - e.g. to offer a viable alternative to the backstop which the EU insists is required to avoid a "hard border" across the island of Ireland. (The "backstop" provisions are in a Protocol to the agreement - starting at page 302- see previous post).
Media reports - e.g. The Guardian 5 August 2019 and BBC News 6 August - indicate that Boris Johnson "has no intention of renegotiating the withdrawal agreement and a no-deal Brexit is his central scenario." The reports continue - ".. David Frost, the government’s new chief Europe adviser, is said to have sought discussions on how negotiations could be reset after the UK crashes out on 31 October." Despite such reports, Downing Street is rejecting claims that it is unwilling to negotiate with the EU and wants talks to fail to allow a no-deal Brexit - BBC News 6 August. A No 10 spokesperson said: "The prime minister wants to meet EU leaders and negotiate a new deal - one that abolishes the anti-democratic backstop. We will throw ourselves into the negotiations with the greatest energy and the spirit of friendship and we hope the EU will rethink its current refusal to make any changes to the withdrawal agreement."
A no-deal Brexit would be against the view of the House of Commons and probably against the view of a majority of the British people. A further referendum now appears unlikely but a petition to Revoke Article 50 and Remain in the EU has over 6 million signatures. Even Vote Leave did not actively campaign for a "no-deal" Brexit and clearly preferred a negotiated withdrawal agreement stating -
"We should negotiate a new UK-EU deal based on free trade and friendly cooperation. We end the supremacy of EU law. We regain control. We stop sending £350 million every week to Brussels and instead spend it on our priorities, like the NHS and science research."
Parliament:
The UK Parliament is on its summer recess until early September. The question arises as to whether Parliament can prevent a no-deal Brexit.
In the European Union (Withdrawal) Act 2018, Parliament legislated to require parliamentary approval of any withdrawal agreement (see section 13) but, as pointed out in this previous post (27 June 2018), did not legislate anything requiring specific approval for a no-deal Brexit. In other words, Parliament did not address what is, and always has been, the default position prescribed by Article 50 in the event of no withdrawal agreement.
Whether the House of Commons is willing to finally countenance a no-deal Brexit could be tested by some form of Vote of No Confidence. Historically, confidence motions have taken various forms and it may be that such motions can still be tabled - see the discussion by Institute for Government. A brief history of the votes of no confidence held since 1742 may be seen at Wikipedia. A key form of Vote of No Confidence is that prescribed by the Fixed-term (Parliaments) Act 2011 and the use of this form can lead to a dissolution of Parliament and a subsequent general election.
In January 2019, the Prime Minister (Theresa May) survived a Vote of No Confidence. The House of Commons rejected it by a vote of 325 to 306
The Callaghan government - 1979:
On 28 March 1979, the Leader of the Opposition (Margaret Thatcher) moved a motion "That this House has no confidence in Her Majesty's Government." - Hansard - Her Majesty's Government: Opposition Motion. The motion succeeded by one vote - 311 to 310. The Prime Minister, James Callaghan, responded:
"Mr. Speaker, now that the House of Commons has declared itself, we shall take our case to the country. Tomorrow I shall propose to Her Majesty that Parliament be dissolved as soon as essential business can be cleared up, and I shall then announce as soon as may be—and that will be as soon as possible—the date of Dissolution, the date of the election and the date of meeting of the new Parliament." Mrs Thatcher then noted that - " .. the Government no longer has authority to carry on business without the agreement of the Opposition ..."
Mr Callaghan acted in accordance with constitutional convention requiring that a general election be held if the government loses the confidence of the House of Commons.
The 1979 general election was held on 3 May and returned a Conservative government. The party held power for the following 18 years.
James Callaghan continued as Prime Minister between the 1979 vote of no confidence (28 March) until the general election and the subsequent appointment, on 4 May, of Margaret Thatcher as Prime Minister.
The Fixed-term (Parliaments) Act 2011:
The Fixed-term (Parliaments) Act 2011 long title states that it is "An Act to make provision about the dissolution of Parliament and the determination of polling days for parliamentary general elections; and for connected purposes." The Act is therefore about PARLIAMENTS and not governments.
Section 1 fixes parliamentary general elections at 5 yearly intervals.
Section 2 provides for two methods by which an early parliamentary election can come about.
First, the House of Commons votes for an early parliamentary general election. The majority in favour has to be two-thirds of the number of seats in the House (including vacant seats). This method was used in April 2017 when the Commons voted 522 to 13 to hold an early election.
Secondly, the House of Commons passes a motion worded - "That this House has no confidence in Her Majesty’s Government." This exact wording has to be used. Let's refer to it as a Fixed-term Parliaments Act Vote of no Confidence (FTPA VoNC).
If such a motion passes then the government could still survive because the Act allows a period of 14 days during which the House could pass a motion worded - "That this House has confidence in Her Majesty’s Government."
The second method plainly reflects the origin of the legislation during the days of the Conservative-Liberal Democrat Coalition government (2010-15) - see the Coalition's plan for government. The Act made it possible for the government to see if changes could be made such that it could regain the confidence of the House. If that was achieved then a dissolution of parliament and an early general election could be avoided.
If the Johnson government were to lose a FTPA VoNC then it too would have a 14 day period to see whether confidence could be regained - e.g. by changing policy or leader. Also, if the political will was present in the House of Commons, it is possible that a new government could emerge during this period. Such a goverment would have to be able to command the confidence of the House and would, almost certainly, be under fresh leadership.
Section 2(7) states that if an election has been brought about under the Act then the polling day for the election is to be the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister. It is possible that, even in the face of losing a FTPA VoNC, the Prime Minister could ensure that the general election date was fixed after 31 October and then do nothing to prevent no-deal Brexit taking place on 31 October.
Section 3 provides for the dissolution of Parliament. It dissolves at the beginning of the 17th working day before the polling day for the next parliamentary general election. Parliament cannot otherwise be dissolved.
A very useful analysis of the Fixed-term (Parliaments) Act is by Carl Gardner and is available in Kindle form at Amazon.
Purdah:
A further issue is what is a government permitted to do once an election date is set. Purdah is the term used to describe the period between the time an election is announced and the date the election is held. Civil servants are given official guidance by the Cabinet Office on the rules they must follow in relation to Government business during this time.
One House of Commons Research Briefing refers to pre-election sensitivity. During a general election Ministers remain in office and in charge of their departments but it is customary for them to observe discretion in announcing initiatives that are new or of a long-term character in their capacity as a minister. It does not prevent ministers from campaigning on their party manifesto in their role as politicians seeking election.
It is not entirely clear how purdah might apply if (say) in September or early October a general election were to be called because the government had lost a FTPA VoNC. Would the Prime Minister be required to request a further Article 50 extension? On the one hand, it is arguable that he should do so because the new government would then be able to determine the way forward regarding Brexit. On the other hand, it is also arguable that he should not request an extension because seeking a further extension would alter the position as it stands at the time the election is set in train. The point is not crystal clear and "purdah" is a matter of convention and not law. It seems likely that the Johnson government would choose the second option.
If the House of Commons were to vote in favour of a FTPA VoNC it appears that it would be necessary for the House to make it clear what it required of the government in the pre-election period. Whether that would require legislation is yet another question. Such legislation would be difficult to secure particularly at a time when the government did not have the confidence of the House. Earlier this year the Commons agreed to suspend standing order 14 (which gives priority to government business) and that enabled the Cooper-Letwin bill to pass and to require Theresa May to seek an extension to the Brexit date to avoid a no-deal Brexit.
Further:
Professor Vernon Bogdanor - The Guardian 6 August - MPs can still thwart Boris Johnson over no deal - Here's how.
Special Advisers are often ambitious individuals operating largely backstage but they are highly influential - see The Guardian 5 August which comments that - "A new cadre of special advisers has entered Downing Street and various ministries under the regime of Boris Johnson, suggesting radical rightwing thought and true believers in hard Brexit are in the ascendancy."
The Guardian 6 August 2019 - View of former Justice of the Supreme Court - Jonathan Sumption - No deal Brexit legally possible even after no confidence vote
The Guardian 6 August 2019 - The fight over no-deal Brexit: How might the crisis pan out
Spinninghugo blog 6 August 2019 - Boris Johnson's duty to resign - "If there were an election tomorrow, and the main opposition party won a landslide victory, what would the duty of the current Prime Minister be? No statute anywhere tells us. Certainly not the Fixed-term Parliaments Act, which says nothing about the issue. The answer is however clear: he must resign."
8 August 2019 - Professor Mark Elliott has published a post on his Public Law for Everyone blog. The views expressed are, generally, in line with the views in my post above. Please see Can Parliament prevent a no-deal Brexit.
UCL The Constitution Unit - Professors Meg Russell and Robert Hazell - Can Boris Johnson ignore parliament and force a no deal Brexit?
11 August 2019 - Institute for Government - Voting on Brexit: Parliament's role before 31 October -22 pages pdf.
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