Is it true, as the prime minister’s special adviser Dominic Cummings suggests, that it is too late to stop a no-deal Brexit, even through a vote of no confidence in HM government and a general election?
Not necessarily. If, as the Commons managed before, MPs seize control of the parliamentary agenda, ambushing Jacob Rees-Mogg, they could pass a law – not mere motions or the like – effectively outlawing no-deal Brexit. No general election would be necessary in such a case.
It would be a difficult task, with a narrow window available from parliament’s return on 5 September, through to the putative Brexit day on 31 October, but it is at least possible. Variations on this theme include revoking Article 50, asking for another extension (to which the EU may or may not concede, and with or without conditions), organising another referendum or, conceivably, putting Theresa May’s deal back to the Commons for a belated fourth attempt.
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If, as seems likely, Jeremy Corbyn calls a vote of no confidence in early September he will need cross-party support to secure the defeat of the government, which is supported by the DUP. There will be abstentions and rebels on both sides, and the vote would most likely be very tight.
If it passes and the government is defeated, unlike the situation before the Fixed-term Parliaments Act 2011, that does not mean a general election is held straight away. There follows a 14-day period, maximum, in which an alternative government would need to be formed and be in a position to win a vote of confidence. This might not be headed by Mr Corbyn, and could instead be styled as some sort of government of national unity.
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It would comprise Labour, Liberal Democrat, SNP, Plaid Cymru, Green, independents, the Independent group (or Change UK), plus Conservative dissidents. To head such a government would need either an alternative Labour figure, such as Margaret Beckett, Keir Starmer or Yvette Cooper; or else a more consensual Conservative figure, such as Philip Hammond or David Lidington. On all sides of these options lie resistance and tribulations, and the odds would be against it being, to borrow a phrase, “strong and stable”. If its sole job was to organise a second referendum, however, then it would work.
Even if a signed-up guaranteed cross-party alternative government was available, legally Mr Johnson would not have to quit for the full 14-day period. He could squat in No 10 – though constitutionally or politically he might be obliged to resign, especially if the palace indicates a view that he is embarrassing the Queen and dragging her into the political arena, that warning itself, though, being a political act.
After the fortnight has elapsed, there would have to be an election – but when?
It could be held just in time for Brexit – say on 17 October. Much would depend on its commission – but the chances are it might be even more of a hung parliament than the current one, with more power for the minority parties, and would in a way, be an unofficial second referendum. An election might be no more able than the current Commons to decide on anything or form a stable government or coalition.
After (another) inconclusive election, Mr Johnson would still be prime minister, and might hang around to see if he can continue in office, as Gordon Brown did in 2010 and Ted Heath did in 1974.
The election might also be after Brexit day. The law only sets down a minimum period of 25 days between dissolution and election day, usually held on a Thursday. There would need to be a “washing up” period to end the current session. But the setting of polling day could be some way into the future – and crucially past 31 October, it would not be an extraordinary delay to hold polling in early November. In 2017, for example, Theresa May called the election on 18 April, but the campaign dragged on until voting on 8 June. Technically there is no limit on how long an election campaign can be; but there is a limit on the public’s patience.
Michael Gove says EU is ‘not interested’ in Brexit talks
Again, holding a general election in such circumstances, with ministers operating a caretaker government, might be politically or constitutionally unwise or even impossible, but not necessarily illegal. These points could be settled by the Supreme Court, although that body doesn’t move rapidly by habit. It would be preferable to bringing the Queen into politics; it might even need a special Article 50 extension purely to resolve the complications.
An early recall of parliament would allow room for thought and refection over the summer, but that is firmly in the gift of the prime minister, and he seems unlikely to exercise that right. On the other hand parliament has amending a law about Northern Ireland, prevented him proroguing (ie suspending) parliament from anytime between now and 31 October, cutting off one of his options.
There are some historical precedents, such as the formation of the national government in 1931, the wartime coalitions in 1915, 1916 and 1940, the Churchill Conservative caretaker administration of 1945, and so on. But this is different. As in so many cases since the referendum in 2016, not to mention the referendum itself, the British political system is trying to navigate a way through extremely hazardous waters without much of a map, without a sextant and, quite possibly, looking for another new captain.