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.

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Pressures to recall parliament over Brexit during the summer seem likely – what if they occur?

meg_russell_2000x2500.jpgIMG_20190723_020219.jpg (1)A new Prime Minister is expected to be appointed tomorrow, the day before MPs break up for the summer recess. With just 14 weeks remaining before the current Article 50 deadline, the Commons is then not due to meet for almost six weeks. This creates some very obvious scrutiny gaps. Meg Russell and Daniel Gover suggest that pressures for a Commons ‘recall’ during the summer recess seem likely, but that this will revive difficult questions about who can, and should be able to, recall MPs.

On Thursday, MPs are due to leave Westminster for the summer recess. Yet, barring mishaps, a new Prime Minister is expected to be installed in Downing Street only the preceding day, making immediate parliamentary scrutiny of the new government’s key decisions all but impossible. An added pressure, of course, comes from the Brexit context. The current Article 50 deadline for the UK to depart the EU is 31 October, but parliament is due to remain closed for around half that time – for almost six weeks initially, until 3 September, followed by another break for the party conferences. During this period, calls for parliamentary scrutiny of the new government – most obviously over Brexit – seem very likely to grow. 

In this post we examine the pressures that may build for a recall of parliament during the summer, and what mechanisms exist for MPs if they do. Crucially, a formal Commons recall can only be initiated by the government – which may push parliamentarians towards innovative solutions. In the longer term, pressures for reform of the recall process may well be revived. 

Why there may be pressures for recall 

Demands for the Commons to be recalled from a recess are not unusual, as discussed below. However, they seem especially probable this year. MPs are set to break up just one day after the new Prime Minister takes office, while the tensions over Brexit and how he intends to handle this (particularly if the winner is Boris Johnson) are running high.

An initial challenge, raised in another recent post on this blog, is whether it will even be possible to know that the new Prime Minister and his government enjoy the confidence of parliament. The first action of a new premier is to appoint a cabinet, followed by junior ministers. Within the 24 hours available to the House of Commons, this process may not be complete. As the Commons’ confidence depends not only on the personality of the Prime Minister, but the personalities and balance of the whole government, this could well be brought into doubt. Additionally, there will be very little time under current plans for parliament to quiz the Prime Minister on his Brexit strategy. A statement on Wednesday afternoon or Thursday is possible, but not assured – and if MPs are dissatisfied there will be very little time to respond. The immediate start to the recess hence already looks problematic, and MPs may depart amidst claims that the new Prime Minister is dodging scrutiny. Continue reading

Six constitutional questions raised by the election of the new Conservative leader

professor_hazell_2000x2500_1.jpgmeg_russell_2000x2500.jpgIn less than one month, Conservative Party members will elect a new leader from a two-man shortlist. Under normal circumstances, what happens next would be obvious – Theresa May would resign and the winner would be called on by the Queen to form a government and take office as Prime Minister. However, with the Conservatives lacking a parliamentary majority and normal party loyalties skewed by Brexit, the current scenario is far from normal. Robert Hazell and Meg Russell identify six key constitutional questions that the Conservative leadership election raises for the winner, his party, the Palace and parliament.

With the Conservative Party leadership contest in full swing, the expectation is that Britain will soon have a new Prime Minister. But the process has opened up some significant constitutional controversies. This is the first time that party members will potentially directly elect a new Prime Minister, and this innovation is happening at a time not only of minority government, but with the governing party severely divided. Some senior Conservatives have signalled that they might go so far as to vote no confidence in a new leader who sought to deliver a ‘no deal’ Brexit, while some candidates in the race suggested a possibility of proroguing parliament to avoid MPs blocking a ‘no deal’. In this post we address six of the most burning constitutional questions raised by these controversies.

1. Will the new leader of the Conservative Party be appointed Prime Minister?

Not necessarily. The key test is whether the Conservatives’ new leader is able to command the confidence of the House of Commons. This is how it is expressed in the key paragraphs of the Cabinet Manual:

2.8    If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government.

2.9    … In modern times the convention has been that the Sovereign should not be drawn into party politics, and if there is doubt it is the responsibility of those involved in the political process, and in particular the parties represented in Parliament, to seek to determine and communicate clearly to the Sovereign who is best placed to be able to command the confidence of the House of Commons. As the Crown’s principal adviser this responsibility falls especially on the incumbent Prime Minister …

2.18    Where a Prime Minister chooses to resign from his or her individual position at a time when his or her administration has an overall majority in the House of Commons, it is for the party or parties in government to identify who can be chosen as the successor.

Clearly none of these paragraphs quite covers the present unusual circumstances: Prime Minister Theresa May is on course to resign as an individual (2.18), rather than on behalf of the government (2.8), but the governing party does not have an overall Commons majority. Two things however are clear in either case. First, that the new Prime Minister must be the person most likely to be able to command the confidence of the House of Commons, and second, that it is the responsibility of the politicians to determine who that person is, in order to protect the Queen from the political fray.

Whether the new Conservative Party leader can command parliamentary confidence is clearly in some doubt given comments from Conservative MPs that they may not be able to support the new government. The government only has a majority of three (including the DUP), so only a very few rebels is enough for it to lose its majority. The parliamentary arithmetic is not necessarily that simple, because some pro-Brexit Labour rebels could conceivably decide to support the government. But the number of Conservative rebels is potentially large enough. Continue reading

The House of Commons and the Brexit deal: A veto player or a driver of policy?

pastedgraphic-1-e1494926560214With parliament set to vote on the government’s Brexit deal today, there is much speculation about what will happen if it is rejected. Here, former Clerk of Committees Andrew Kennon analyses the potential scenarios, including whether or not the House of Commons could end up running the country directly.

A key concern for the House of Commons when voting on the proposed deal with the European Union will be not only the merits of the agreement itself, but what happens if it is defeated. In theory, parliament – and in particular the House of Commons – is the ultimate source of constitutional authority within the UK system. But, in this particular circumstance, if MPs reject what is on offer, will they be able to take the initiative and impose a different course of action, or will they simply have to wait for the government to act?

The key problem for MPs wanting to implement other solutions to the Brexit deal is time – not just 29 March but debating time on the floor of the House. The government has complete control of the business and time of the House – with the exception of specific time set aside for the opposition and backbench business. Furthermore, any solution which requires legislation could only get through parliament with the government’s support.

But is it possible to contemplate the House taking the initiative in finding a solution to Brexit? If the government’s deal does not pass in the House on 15 January, might the government really say ‘we want to hear what the House thinks of the various options’?

An ‘All-Options’ debate?

At this point many MPs will want – and the public might expect – a debate leading to a vote on a whole range of options. In procedural terms, there is a clear precedent from 2003 when the House voted on a variety of options for the composition of a reformed House of Lords – though the salutary lesson from that experience is that each option was rejected. One group of MPs will be solidly opposed to opening up the options like this: those who oppose the government’s deal and want a no-deal exit. Continue reading

Can David Cameron call a second election? How does that fit with the Fixed Term Parliaments Act?

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Robert Hazell outlines how the Fixed Term Parliaments Act restricts the new government from calling a second election. He writes that if Cameron wanted to take a gamble to boost his slender majority, he would have to work within the confines of the Act given the likely complexities of any attempt to repeal it.

This is the third in a series of posts based on the Unit’s latest report, Devolution and the Future of the Union, published here.

Now that David Cameron has won, but only with a slender majority, speculation will turn to whether his government will last a full five years; and whether he could improve his numbers by calling a second election. In the run up to the election there was talk of the new government calling a second election after a year or so, as Harold Wilson did in 1966 and again in 1974. This kind of speculation is wild. It is no longer possible for the Prime Minister to seek an early dissolution, because the prerogative power to dissolve Parliament was abolished by the Fixed Term Parliaments Act 2011. It is now up to Parliament to decide whether there should be an early election. Under the Act there are only two ways in which Parliament can be dissolved early:

  • By a motion ‘that there shall be an early parliamentary general election’ passed by at least two thirds of the House of Commons (s 2(1))
  • By a formal no confidence motion, in the statutory form prescribed in the Act (that ‘this House has no confidence in Her Majesty’s Government’), passed by a simple majority of those voting (s 2(3)). If no alternative government can be formed within 14 days which can command confidence, Parliament is dissolved and an early election held.

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