June 27, 2019
Why it is an illusion to think that the Commons could stop a no-deal Brexit
In today’s briefing, we are looking at procedures and timetables, and why they conspire against a further Brexit extension. Our overall conclusion is that it is not possible for the UK parliament to frustrate Brexit by October.
We should remember how this kind of analysis applied last time. It got short-circuited because Theresa May herself sought the Brexit extension. She could have defeated or ignored the Cooper amendment if she had wanted to. She chose not to.
The mechanics of the fixed-term parliaments act (FTPA), the legislation that would apply in this specific case, suggests to us that the time window for an election ahead of the end-October deadline is too tight. Labour has already decided not to launch an immediate vote of no-confidence against Johnson - as presumptive prime minister - when he takes office on July 23 or 24. The House of Common goes on holidays on July 25 and does not return until September 5. At that point, it is already too late, according to an analysis by Catherine Haddon from the Institute of Government.
She worked out the timetable under the FTPA backwards, but didn’t take into account of the parliamentary recess times. Here it is the full version, with that important omission repaired:
- Oct 31st is a Thursday. Last possible date for a new government to be installed before the deadline is Friday Oct 25; thus elections need to be hold by Thursday, Oct 24;
- start of election campaign Sept 19 as FTPA requires 25 days for the campaign;
- 2 day washup time, as Haddon calls it, to get things ready. She writes this the shortest conceivable time;
- Sept 16 - second vote of no-confidence - after a 14-day period following the first vote;
- Sept 2 - first vote of confidence;
- But... Sept 3 - end of recess.
So, if Jeremy Corbyn were to launch and win a vote of no-confidence in the first week after the return, he would still end up outside the Oct 31st deadline. And this on the shortest of all possible timetables. This is in itself unrealistic because, as Haddon notes, the prime minister is in control of three important nodes in that process:
- when the first vote of confidence is voted on - there is no obligation for the PM to grant that vote immediately;
- whether to resign and force elections immediately, or wait out the 14-day period for a second vote;
- and the actual election date - the 25 days in the FTPA are a minimum.
The vote of no-confidence would only trigger a Brexit extension if the prime minister were to agree to ask for it. UK commentators appear to take this for granted. We do not. If Parliament gets dissolved on September 16 or 17, it does not have the opportunity even to put forward a motion asking the government to seek an extension. In other words, Johnson could deliver the no-deal Brexit 6 days before the elections if he wanted to.
Does parliament have other options? Cooper-style motions are not going to swing it. We see only three theoretical possibilities:
- unilateral revocation;
- passage of second-referendum legislation coupled with a formal request for the government to seek extension of the October deadline;
- an FTPA process leading to the appointment of a new government without elections.
We see no chance of unilateral revocation. We think the Labour Party will end up supporting a second referendum, but with at least 30 MPs opposed. One of the reasons we think MPs will be cautious is that a second referendum is very likely to be preceded by elections. MPs would thus have to defend their decision to support a second referendum in a general election first.
What about a short-lived technical government set up with the sole purpose of seeking an extension to Art 50, and to agree immediate elections afterwards? We see no reason why Corbyn would support that option when he can have elections right away. Such a government of national unity might decide to hang on. The left would clearly see a technical government as an centrist attempt at a reverse takeover of the Labour leadership.