August 07, 2019
No, the UK parliament will not stop a no-deal Brexit
We have a useful tip for readers who follow Brexit professionally. The easiest way to cut down on your daily Brexit readings without losing any information whatsoever is to exclude two overlapping categories of writers and commentators: anybody who has not read or understood Art. 50 of the Lisbon Treaty and thus treats Brexit purely in the context of UK law and politics; and anybody who involves the Queen at some part in the process, like the extreme Leavers who call for the prorogation of parliament, and the extreme Remainers who want parliament to stop a no-deal Brexit. Some commentators fall into both categories simultaneously.
Today we would like to debunk the myth that the UK parliament can stop the no-deal Brexit. Under EU law - the law that matters in this specific discussion - there are only two technical possibilities for the UK parliament to frustrate an October 31st Brexit. The first and the only certain route is a majority in favour of unilateral revocation of Brexit. No such majority exists.
This leaves a less certain pathway: to seek a further Art. 50 extension. Since Boris Johnson refuses to do this, it would have to involve a new prime minister before October.
So what would happen if the House of Commons were to pass a vote of no-confidence in Johnson's government? Under the fixed-term parliaments act, this would trigger a 14-day period in which parliament can seek an alternative candidate for the job of prime minister. Failing that, there would have to be elections.
An alternative prime minister would be tasked with doing two things only: to write a letter asking the European Council for an extension and to seek immediate elections. It would be what the Italians call a technical government.
There was some discussion yesterday on whether Johnson would need to resign even if parliament were to succeed in finding such a candidate. We believe that to be the case. Others do not. But for now this is an idle discussion to which we will happily return if we get to that point. We will probably not, because the numbers are simply not there.
For this situation to arise, a number of things would have to happen. First, Jeremy Corbyn would have to ask for, and win, a vote of no-confidence in the government. He could ask for such a vote to take place shortly after the Commons return from the summer recess. The Johnson team’s plan A is to get ready in case they lose this vote. The plan is to schedule an election on or after October 31 - but not to extend the Brexit deadline. So the election would take place after a no-deal Brexit.
This, in our view, is the Johnson team's greatest vulnerability. We don’t think that they have thought this through in full. The logistical consequences of a no-deal Brexit are hard to predict. There may be food or medical shortages that could easily turn into a major election issue. So, before discussing any complicated issues arising from UK constitutional law, ask yourself: why would Corbyn want to miss out on such an opportunity by supporting an alternative technical government? This is an election he might actually win.
A technical government would require almost unanimous support from all the opposition parties. It would have to include every Labour MP. The Tories currently have a majority of three. Any Tory MP who votes against their own government will be immediately sacked from the parliamentary party, and replaced as a future MP candidate by their local association. There will be some brave hearts. We suspect maybe five to ten, but not ten to twenty. A successful vote of no confidence is entirely possible.
But what about agreement on an alternative prime minister? The UK does not know the concept of a constructive vote of no-confidence, which is what you have in Germany or Spain. In the UK it is possible for MPs to express no confidence in a government, and then go on to withhold their support for any alternative candidate.
The LibDems, and the Scottish and Welsh nationalists, will support a technical government. But will Labour?
The decision will be taken in the context of a pending election. Labour MPs in Brexit-supporting seats will have to explain why they supported a Remainer as interim prime minister with the sole task to frustrate Brexit. This would be the one scenario where we could see a political alliance between the Tories and the Brexit party - with the latter targeting some of the leave-voting marginal Labour seats.
For now, the Labour frontbench team has firmly ruled out the idea of supporting a government of national unity. Rebecca Long-Bailey, a Labour frontbencher who is close to Corbyn, yesterday categorically ruled out supporting a government of national unity to deal with Brexit. We can see why. It does not make sense for them.
But even if the Labour frontbench team were to come under massive pressure to support a government with an extremely limited remit, we still don’t see how the numbers add up. On our count there are about 10 Labour MPs who do not wish to be seen to frustrate Brexit.
So, before we get to the constitutionally tricky question of what would happen in case Johnson simply refuses to go even if parliament were to huddle around an alternative, we better stop at this point and look at the numbers. They are not there. The numbers for unilateral revocation are not there either. This means that parliament cannot stop a no-deal Brexit on its own.
We are not saying a no-deal Brexit is certain. We are saying that it depends on Johnson - not on parliament. He and his team are clear that they need to deliver Brexit. But we don’t think they have yet thought through the difficulty of running an election campaign in the middle of a no-deal Brexit chaos.
This means that the future is not foretold. Events can and will intrude.