Richard Parry assesses the impending parliamentary action in September and October as the Commons tries to construct an anti-no deal majority.
Boris Johnson’s dramatic prorogation initiative of 28 August has certainly turbocharged one thing – the sense of outrage felt by his opponents. In practical terms it has truncated the time available to them to pursue initiatives against his EU policy. The party conferences start with the Liberal Democrats on Saturday 14 September and end with the Conservatives finishing on Wednesday 2 October; attempts to keep Parliament sitting during them are now impossible. The prorogation order gives Johnson the flexibility to make any day from Monday 9 to Thursday 12 September the final one of the session and then not start the next until a Queen’s Speech on 14 October. Time will be further pre-empted by the Chancellor’s Spending Review statement, completing or carrying-over legislation, and the Queen’s Speech with its ensuing debate.
Courts throughout the UK are showing an interest in scrutinising the extreme length of the prorogation in relation to its stated aim of effecting the transition between one session and the next. In the Court of Session on 30 August, Lord Doherty issued a judgment of Solomon that denied an interim interdict against the prorogation but brought forward the main hearing on the issue to 3 September. The UK government cannot assume that they have found the perfect stratagem immune to resistance by the courts as well as by the Crown and by Parliament.
On the other hand, it is now guaranteed that Parliament will be sitting in the days up to 31 October and may have a chance to vote on a Withdrawal Agreement Bill based on a putative deal with the EU on 17-18 October being put to a vote on 21-22 October. The most controversial kind of prorogation, and the one most likely to have proved justiciable – that spanning 31 October – is ruled out. Any deal is still covered by the European Union (Withdrawal) Act 2018 and requires a resolution in stated terms and primary legislation. Johnson’s letter to MPs suggests that, like Theresa May’s abortive last throw, he envisages rolling up the resolution into the Bill and getting it through both Houses by 31 October. It seems very unlikely that he could avoid what many of his leadership rivals embraced – a ‘technical’ extension beyond 31 October to allow passage. Johnson has invested so much in this date that he may now be most comfortable with a no-deal exit that allows him to address political problems and plan a General Election from outside the EU.
So much gained for Boris if the opposition forces that met on 27 August (all Westminster party leaders except the Conservatives and the DUP) had otherwise got their way – but suppose they had not? Like a sports umpire the Institute for Government issued its own guide to the parliamentary rules (Voting on Brexit: Parliament’s Role before 31 October, 11 August 2019). It noted the less favourable circumstances for a repeat of the Cooper-Letwin law, the European Union (Withdrawal) Act 2019, which went through all its stages in both Houses three sitting days and required ministers to propose within a day an extension to Brexit. In the event Theresa May proposed one anyway before enactment. The margins in the Commons last time were wafer-thin: one vote on the necessary business motion on 1 April, five votes on second reading and one vote on third reading on 3 April.
Labour’s attempt on 12 June to use its last opposition day to gain control of the timetable failed by 11 votes; 10 Conservatives voted for it but there were 8 Labour votes against. The total anti-Brexit vote mobilised was 298 against its peak of 315 in the second reading of the Cooper bill. This vote – cited by Matt Hancock as the reason for his conversion to the no-deal line – showed the difficulty of getting Corbyn-led initiatives through. In fact there have been only five totally solid Conservative remainers against the deal and in favour of ploys for extensions in all the 2019 votes – Guto Bebb, Justine Greening, Dominic Grieve, Sam Gyimah and Phillip Lee. It might be tactically wise for the anti no-deal forces not to attempt an impossible law-making feat in September but rather win a motion with Conservative rebel support (including the now-liberated discards from May’s team) via an emergency debate.
The alternative approach is a non-confidence vote. Jeremy Corbyn’s suggestion on 14 August that he would see this leading to his own installation as Prime Minister and fighting a General Election holding that office dealt it a possibly fatal blow, confirmed by the 27 August party leaders’ meeting. But a motion in name of the Leader of the Opposition would be the only certain way of getting parliamentary time: governments have to be prepared to confirm that they enjoy the confidence of the House.
Even if such a vote were, implausibly, won, Boris Johnson holds good cards. The Fixed-term Parliaments Act 2011 overturned the convention that a government defeated on a central item of policy has to resign. Now a confidence motion can, if won, get over the crisis (as Theresa May did by 325-306 on 15 January 2019); even if lost there is only an election if the Commons does not pass within 14 days a motion that it ‘has confidence in Her Majesty’s Government’ (the same HMG as in the first vote, or another one formed after it; prorogation might prevent such a second motion). The 2011 Act does not specify or mention a Prime Ministerial resignation, but ‘the Prime Minister is expected to resign where it is clear that he or she does not have the confidence of the House of Commons and that an alternative government does have the confidence’ (Cabinet Manual 2011 para 2.19). Clarity can be relative and contestable.
There was one twentieth century instance when a government collapsed and the Leader of the Opposition became PM in advance of the ensuing general election, which was duly won (Henry Campbell-Bannerman in 1905). The more recent relevant example is James Callaghan in 1979, who lost a vote of confidence on 28 March and stayed in office without controversy until the general election on 3 May. The Cabinet Manual para 2.27 states that in such a period ‘governments are expected by convention to observe discretion in initiating any new action of a continuing or long-term character’ but ‘essential business must be allowed to continue’; it can be argued that this wording either requires or prohibits a default no-deal Brexit. Under the 2011 Act the timetable for an early election is under government control: ‘the polling day is to be the day appointed by Her Majesty on the recommendation of the Prime Minister’.
Johnson’s move may have spared his opponents from having to reveal weakness in their coalition, saving their chance until frenetic days before 31 October. The problem is that to get a real grip on the situation there may have to be a majority for something positive – rescind withdrawal, have a second referendum – rather than a negative statement against no deal. It would be do-or-die for both Brexit and Boris.