The Brexit deadline 31st October is just 32 days away. The House of Commons is sitting because prorogation was ruled unlawful and void by the Supreme Court. But UK politics is still on a knife edge because what will happen with Brexit is still unknown.

The quandary is essentially this. The Benn Act stipulates that in the absence of a Brexit Deal having passed the House of Commons by 19 October, the Prime Minister must request an extension of the Article 50 negotiation period until 31 January 2020. For the sake of the rest of this piece I assume there will not be any Deal passed by the House of Commons by 19 October, or indeed at all.

Johnson has said he will comply with the law, but under no circumstances request Brexit delay.

This narrows Johnson’s options to five:

  1. He resigns as Prime Minister rather than requesting the delay
  2. He u-turns and makes the extension request
  3. He changes his mind and chooses to break the law
  4. He finds some way around the law
  5. Someone else makes the extension request instead

The combined opposition of Labour, Liberal Democrats, SNP, Plaid Cymru, Greens and the Tories who have lost the whip have to work out how to respond to this.

The choice for them boils down to this: do they seek to ensure Article 50 is extended, then oust Boris Johnson? Or do they oust Johnson first, so as to replace him and guarantee Article 50 is extended?

Let’s examine each in turn.

The better response to options 1, 2 in the list above would be for the opposition to wait and not oust Johnson now. If he resigns he looks weak – that assists the opposition, and in steps the opposition to unify behind a caretaker administration if that happens. If he u-turns he looks weak – likewise he looks weak, and mission accomplished for the opposition.

Options 3 and 4 are more complicated. If he breaks the law there would need to be a Supreme Court case immediately after 19 October, and possibly thereafter (or in parallel) a Vote of No Confidence in the Prime Minister to oust him, and the caretaker would seek an Article 50 extension, all before 31 October. The timetable for all of that is ridiculously tight. If Johnson were to seek some way around the law there might likewise be the danger of running out of time, even though pretty much all of of the floated ways around the Benn Act result in dead ends, as Raphael Hogarth indicates here.

Option 5 is possibly the most interesting. There are three ways someone else could make the extension request. First, the Jolyon Maugham / Dale Vince nobile officium case succeeds and the Inner House makes the request (explained here). Second, the EU could offer an extension (note Article 50 says extension must be in agreement with the state that is leaving, not that the request has to come from that state). Or – more radical – Johnson is replaced as Prime Minister, and his replacement makes the extension request. This is the case that the SNP has been making – see Ian Blackford’s column in The Times.

The problem with the radical route to remove Johnson is that there is no complete clarity about how to do that. There are essentially two ways: one is to table and win a Vote of No Confidence (VONC) under the procedure foreseen in the Fixed-term Parliaments Actย (FTPA), the other is to use what I will call the Maugham-Mountfield route that is explained here. The FTPA route is guaranteed to have parliamentary time allocated to it, but there is a dispute whether the incumbent Prime Minister Johnson could simply sit out the 14 days as Prime Minister and refuse to resign, resulting in a General Election and the danger of No Deal in the middle of the campaign. Carl Gardner for example takes this view (Carl has also clarified this further in a comment below). Robert Craig argues the opposite here. The Maugham-Mountfield route is less dangerous as it does not automatically trigger a General Election after 14 days, but it is based on convention and is untried.

Further, as if all of that were not complicated enough, if the opposition parties wait a few weeks to see if Johnson will extend, and then he breaks the law (option 3 above), chances are you areย still going to need either a VONC under the FTPA or the Maugham-Mountfield route some time around 19 October, when time is of the essence.

Also as Parliament is now sitting, a further option could be to amend and tighten up the FTPA to ensure that were it to be used, the Prime Minister would be obliged to resign and could not sit out the 14 days. Although the danger of doing so could be to highlight the opposition’s tactics for the coming weeks. Alternatively an amendment to the Benn Act to bring forward the 19 October deadline – perhaps a week or so earlier so as to give more time for a VONC in the case of Johnson behaving unlawfully (option 3) – could be another option, or to amend it to mandate someone else to request the extension in the case that the Prime Minister fails to do it.

However, as things currently stand, there is no completely failsafe way to ensure that Article 50 is extended, nor is there any completely failsafe route to ensure that Johnson is ousted. It is a matter of judgment.

Ian Blackford, Nicola Sturgeon and the SNP take the view that Johnson is not to be trusted, and it would be better to oust him as soon as possible – and thereby ensure Johnson’s replacement extends Article 50. Jo Swinson takes the opposite view – that it is better to make sure Article 50 is extended first – and then oust Johnson. I assume that the Labour Party leans towards that outcome too for the moment.

[UPDATE 29.9.2019, 1850]
This is a cunning alternative way to amend the Benn Act!

And this remains a danger, albeit a small one

Also note that Option 3 originally said “He breaks the law” – a friend pointed out to me that the way this was formulated contradicted the text above. So this has been amended to include that he would have to change is mind to break the law.

[UPDATE 30.9.2019, 1040]
Nicolai von Ondarza at SWP has an additional point of view:

This needs some further thought – on how to schedule these aspects, and in what order. If a General Election were called today it would happen earliest 5th November, i.e. after the scheduled Brexit day.

2 Comments

  1. It is so sad that Parliament did not have the courage to change the default from crashing out without a deal, to revocation.

    Had they legislated that, if a deal could not be achieved and an extension not granted by 19 October, the Prime Minister must immediatly revoke Article 50, we’d be in a much safer position.

  2. Can I just clarify my view on this, Jon? It’s a bit complicated.

    It’s not my view that Johnson would be entitled to run down the 14-day clock after losing a FTPA no-confidence motion. I think that’s a wrong view of the way the FTPA interacts with convention.

    My point is that it’s very hard to see what mechanism there is for any of us to stop Johnson acting in accordance with that wrong approach. The convention relating to resignation of a government that’s lost the confidence in the Commons would I think be harder to enforce in court than the law on prerogative powers, last week.

    In other words, I fear that Johnson could get away with applying the FTPA in a dodgy way, and running down the 14 day clock.

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