Can Boris Johnson ignore parliament and force a no deal Brexit?

meg_russell_2000x2500.jpgprofessor_hazell_2000x2500_1.jpgControversy is swirling over the extent to which Boris Johnson’s government must be bound by parliament, particularly regarding a ‘no deal’ Brexit. Some have even suggested that Johnson could flout a Commons vote of no confidence and pursue this outcome contrary to parliamentary support. Meg Russell and Robert Hazell explore such questions, concluding that both convention and parliamentary logic mean Johnson cannot ultimately force a ‘no deal’. But to prevent this MPs must be organised and determined.

There has been much recent controversy about whether Boris Johnson’s new government can press ahead with a ‘no deal’ Brexit against the express wishes of the House of Commons. This was kicked off in part by a front-page story in Tuesday’s Times headed ‘Johnson to defy any vote of no confidence’ – suggesting that even if MPs went so far as to withdraw their support from the government, the Prime Minister could stay on and force a ‘no deal’ Brexit, perhaps in the middle of a general election campaign. Various commentators have subsequently expressed their views. Many questions raised are close to those that we addressed in an earlier post on this blog reflecting on constitutional questions surrounding the (then still awaited) appointment of the new Prime Minister. Here we return to some of these questions, and our conclusions are twofold. First, despite disparate commentators’ voices, there is a high degree of agreement on the key issues. Second, the essential answer to the question posed in our title is ‘no’. But this depends on strong political will and organisation by the forces in parliament opposed to ‘no deal’.

The options available to MPs

Much energy has been spent in recent months, including prior to the Johnson premiership, reflecting on what MPs’ options are if they want to block a ‘no deal’ Brexit. The general view – for example from the Institute for Government, and from Jack Simson Caird on this blog – is that such options are limited, but do exist. MPs’ continued determination to prevent a ‘no deal’ outcome was demonstrated by the heavy defeat inflicted on Theresa May’s government over the Northern Ireland (Executive Formation) Bill – which in effect blocked the threat of an autumn prorogation. On a previous occasion, ‘no deal’ was defeated by 400 votes to 160. Now, following the departure of many ministers from the government, the forces against ‘no deal’ on the Conservative backbenches are even stronger.

Our earlier post pointed out the unfortunate timing of a new Prime Minister taking office on the day before the Commons entered its summer recess. As further discussed by Meg Russell and Daniel Gover on this blog, the lack of parliamentary scrutiny of the Johnson government is problematic, and may lead to increasing demands for a recall of the Commons. This scrutiny gap has already contributed to an escalating rhetoric on both sides.

But when MPs do finally return (currently scheduled for 3 September), what will they be able to do? Initially, they will surely want to ask Prime Minister Johnson to explain his Brexit strategy, and press him hard on his intentions regarding European negotiations, and how to confront a ‘no deal’. Many will argue that this outcome should be avoided at all costs, if necessary through seeking a further extension to the Article 50 period. If Johnson flatly rejects this option, and particularly as the clock ticks down, MPs have two legally robust options in front of them. First, to legislate – probably to require the government to seek and accept an extension, using similar mechanisms to those employed on the so-called ‘Cooper bill’ in April (which might require some imaginative use of the emergency debate procedure under Standing Order no. 24). Second, to vote no confidence in the Johnson government. A vote of no confidence, as discussed below, might then lead to legislation along the lines discussed above, or to the formation of a new government.

The Fixed-term Parliaments Act and the 14-day period

Recent events have focused attention on the content of the Fixed-term Parliaments Act 2011, and the procedures it sets out for the termination of a government. Clause 2(4) of the Act specifies the wording of a formal motion of no confidence, whose approval can potentially trigger a general election. In practice, to be guaranteed parliamentary time, such a motion must be proposed by the Leader of the Opposition. But a vote of no confidence in this form doesn’t lead to a general election immediately. Instead the Act sets out a 14-day period during which the House of Commons may vote formal confidence in a government. In practice this could be either a new government or the pre-existing government, for example if it declared a change in policy direction. Where the Act is silent is on how a new government is formed. Ultimately, it is for the monarch to appoint a new Prime Minister, and the wording in the Act effectively requires this to have happened before the formal vote of confidence. However, there are various mechanisms that MPs could use to indicate their support for a new administration. In our previous post we suggested use of the Humble Address procedure. Again, a Standing Order no. 24 debate could potentially be used. As pointed out by David Howarth, the mechanism need not even be a formal vote. If a majority of MPs signed an early day motion (EDM) expressing support for a named person to be appointed Prime Minister, this could give the Queen confidence to act.

In theory, during the 14-day period the existing Prime Minister could try to short-circuit the process by bringing forward a motion under Clause 2(2) of the Act to trigger a general election. This would require support from two-thirds of all members of the House of Commons. Although it might be difficult for either Labour or Conservative MPs to vote against such a motion, MPs wishing to avoid a ‘no deal’ could certainly withhold their support until an Article 50 extension had been secured. Notably, just 217 MPs (say, SNP plus Liberal Democrats plus two-thirds of Labour) would need to abstain on the motion for it to fail. In practical terms an Article 50 extension would be necessary even if the election could be scheduled before 31 October. It could not be held much earlier, given the statutory 5-week lead-in time and, if the outcome was another hung parliament, formation of a new government could eat up further time.

What happens immediately after a vote of no-confidence?

One claim frequently repeated in recent days has been that the Prime Minister would not have to resign following a no-confidence vote. At one level, this is completely true. The country cannot be without a government or without a Prime Minister, so in the short term Johnson could rightly see it as his duty to remain in post. The last time a general election was triggered following a vote of no confidence was in 1979, when Prime Minister James Callaghan remained in post for the last few days of the parliament and during the election campaign, finally handing over to Margaret Thatcher immediately after polling day. But, firstly, a government remaining in office in such circumstances is bound by the ‘caretaker convention’ (see immediately below), and second, it would be bound to resign if an alternative government could be formed (as discussed further down).

The caretaker convention

The Cabinet Manual clearly sets out that there are ‘restrictions on government activity’ in certain circumstances – commonly referred to as the ‘caretaker convention’. This applies, for example, in the immediate aftermath of a general election if the Prime Minister needs to stay on while a new government is formed – as Gordon Brown did in 2010. As set out in the Cabinet Manual, these same conditions apply following a vote of no confidence in the government (para 2.31), and during an election campaign (para 2.28). The conditions themselves are given in paragraphs 2.27 and 2.29, and specify that the government must ‘observe discretion in initiating any new action of a continuing or long-term character’. Typical examples would include making new public appointments or government contracts: the Cabinet Manual advises postponing such decisions, ‘provided that such postponement would not be detrimental to the public interest or wasteful of public money’ (para 2.29).

In our previous post we suggested that this convention means the government should not allow the UK to exit the EU on a ‘no deal’ during a general election period: especially if ‘no deal’ were the central issue in the election campaign. Some others have disputed our interpretation, on the basis that the legal default is to leave the EU on the 31 October. However, various news outlets have reported that the Cabinet Secretary, Mark Sedwill, interprets the convention in the same way as us. Although Brexit might be the legal default, the status quo is EU membership; furthermore, the ‘continuing or long-term character’ of leaving the EU on a ‘no deal’ basis is clearly greater than that of remaining in the EU on a temporary basis during an extension period.  An extension would allow for a subsequent ‘no deal’ departure, just a bit later; leaving with ‘no deal’ does not allow for subsequent extension.  Thus an extension preserves both options, and is a more truly neutral and reversible course of action.

As this matter is at least debatable, the government’s interpretation of the caretaker convention is the first thing that MPs should seek to check after a vote of no confidence has taken place. It is very likely that the Prime Minister would be called to the House of Commons using an ‘urgent question’ (or potentially an emergency debate) immediately after such a vote, in order to explain his intentions. Should the Prime Minister respond by refusing to seek an Article 50 extension to take the UK beyond an ensuing general election, MPs could use the 14-day period to pursue one of the other options indicated above – legislating to require the government to request and accept an extension, or putting a new government in its place that would.

How would a government of national unity work?

The path of legislating to require an extension has already been tested – though the Cooper bill was not legally watertight in requiring the government to accept the extension on offer. Given the Johnson government’s possible resistance, MPs’ preferred option could instead be to put in place an alternative government that pledged firmly to seek such an extension. It has been widely floated that this could be a cross-party ‘government of national unity’. But how would that work, and what are the obstacles?

As indicated above, there are various mechanisms that MPs could use to indicate their preferred alternative Prime Minister, in effect recommending that person to the Queen. The key requirement in choosing that person is that they could command cross-party confidence. This in effect rules out Jeremy Corbyn, and implies a more centrist figure, such as Hilary Benn or Yvette Cooper from Labour, Philip Hammond or David Lidington from the Conservatives.

In practice, a government of national unity might prove difficult for Labour to swallow, as having brought down the Johnson government Jeremy Corbyn’s key priority would be a general election. But the support of the Labour frontbench would almost certainly be essential to gain a majority for formation of such a government. Formation of that government might, in turn, be essential to securing an Article 50 extension. There is hence a need for pragmatism when choosing a centrist leader, including which party they are drawn from. An explicitly joint ticket (e.g. Cooper/Lidington) might prove necessary. Even more important could be the declared objectives, and promised tenure, of such a government. At a Constitution Unit event on 22 July Hilary Benn suggested that this could be a ‘letter writing’ government whose sole purpose was to request an Article 50 extension before it dissolved itself – possibly triggering the general election that Labour craves. Any worries that such a government could overstay its welcome can be easily dispelled. Should it break its pledge to go, Labour could simply collapse the government by withdrawing its support in a subsequent no confidence vote.

Nonetheless, creation of a government of national unity is more complex than just the appointment of a new Prime Minister. Even if the government lasted only a few weeks, up to and including a general election campaign, Secretaries of State would need to be appointed – as some have statutory responsibilities. However, in a caretaker administration the number of ministers could be small, and their policy responsibilities would be (for reasons set out above) necessarily limited.

What if Boris Johnson simply refused to cooperate?

As already indicated, Johnson would need to remain as Prime Minister unless and until it was clear that an alternative government could be formed which could command confidence in his place.  He would thus remain the Queen’s principal constitutional adviser. However, since he no longer commanded confidence, his advice would no longer be binding. In essence, in these circumstances, it is parliament’s advice that the Queen is bound to take. If MPs had clearly indicated support for an alternative Prime Minister, Johnson would be expected to resign and to recommend that the Queen appoint the alternative candidate in his place (Cabinet Manual para 2.19).  If he refused to do so, the Queen would be entitled to dismiss him and appoint the alternative as Prime Minister.  As Conservative commentators have remarked, it seems extraordinary even to suggest that a Conservative Prime Minister could do otherwise.  Conservatives are expected to uphold our institutions, and to obey the conventions that underpin them. However, this is perhaps less surprising in a context where Johnson’s most senior adviser has himself previously been found in contempt of parliament.

What if parliament passed a bill to require Johnson to seek and accept an Article 50 extension, and he refused to comply?  Again, it seems inconceivable that he would openly flout the will of parliament and the rule of law in this way.  But if he did, he could then be open to enforcement action in the courts.  The closest parallel is M v the Home Office (1993), a deportation case where the House of Lords held that the courts could enforce the law by injunction or contempt proceedings against a minister in his official capacity.

Conclusion

As various commentators have pointed out, it is far from straightforward for MPs to block a ‘no deal’ Brexit. There are procedural obstacles, and opposing ‘no deal’ alone is not enough – MPs must vote positively in favour of something, even if in the short term that is simply a further Article 50 extension. But in the end, Johnson cannot institute a ‘no deal’ Brexit, or a chaotic general election campaign during which a ‘no deal’ occurs, without MPs effectively having let him do this, through inaction. Nor can he cling on to office if they indicate majority support for an alternative government in his place. But in the present circumstances, with the government committed to delivering Brexit on 31 October ‘no ifs no buts’, MPs will need to be particularly determined if they want to prevent a ‘no deal’. As some commentators have pointed out, the outcome may depend on which side is the most committed to its goal, and some of Johnson’s supporters are clearly very determined.

Fundamentally, it must be remembered that the core principle of the UK constitution is parliamentary sovereignty, and the government is only the government because it enjoys parliamentary support. For a government actively to flout the will of parliament, for example by refusing to step aside having lost the Commons’ confidence, or to refuse to implement a statute, would hence, in the words of former Conservative Foreign Secretary Malcolm Rifkind, precipitate a ‘grave constitutional crisis’ – which could draw the Queen or the courts into political decisions.

In addition, the UK’s ‘political’ rather than ‘legal’ constitution rests to a significant extent upon convention. This depends on key actors respecting the rules. Notably, just because something (such as the requirement to resign if an alternative government gains the Commons confidence) is not written down in law, this does not mean that no such rule applies. However in a political constitution, it is normally for political actors, not judges, to determine the outcomes. Again, the central political actor holding that power is parliament. As some MPs have now begun to point out, if the government starts to tear up the constitutional rules, the risk is parliament will do the same.

About the authors

Professor Meg Russell is Director of the Constitution Unit, and also a Senior Fellow at the UK in a Changing Europe studying ‘Brexit, Parliament and the Constitution’. 

Professor Robert Hazell was the first Director of the Constitution Unit, and closely involved with helping the Cabinet Office draft the Cabinet Manual. He is currently working on a comparative study of European monarchies, due to be published next year.