Boris Johnson’s top aide says the prime minister can delay an election until after we’ve crashed out, even if he loses a vote of confidence, according to the Sunday Telegraph. That’s not quite true.
We do not live in a dictatorship. MPs will have to do a lot of heavy lifting when they get back from their holidays on September 3. But if they want to stop “no deal”, they can.
Dominic Cummings does have half a point. If there’s an election, the Queen chooses the date on the “recommendation of the prime minister” under the Fixed-Term Parliaments Act.
What this means is that MPs cannot stop a no-deal Brexit if Johnson a) loses a no-confidence vote, b) recommends to the Queen to delay an election until after we’ve crashed out of the EU and c) hangs on as prime minister.
There are, though, a lot of “ifs” in the previous sentence. Let’s look at them in turn.
For a start, Cummings is assuming that there will be a no-confidence vote. But that shouldn’t be MPs’ Plan A. It would be better to pass legislation forcing Johnson to ask for extra time to hold a referendum – and only turn to a no-confidence vote if that fails. If the legislation route works, Cummings’ whole scheme falls apart.
Is Johnson really Cummings’ puppet?
Even if there’s a no-confidence vote, will the prime minister really act as cynically and undemocratically as Cummings is supposing – and delay an election until after we’ve crashed out? In the scenario we are considering, Johnson would be disregarding the will of Parliament and preempting the will of the people.
There would be strong moral, political and possibly even legal pressure on him not to do so. The Cabinet Manual states that governments which have lost no-confidence votes are “expected by convention to observe discretion in initiating any new action of a continuing or long-term character”. (See para 2.27).
Taking us out of the EU without a deal would have massive long-term consequences. This is presumably why the Cabinet Secretary has presented legal advice that the prime minister would have a constitutional duty to ask the EU to delay Brexit so an election could be held, according to the Sunday Times.
Emergency government
Now of course, it’s possible that Johnson will be so brazen that he will try to plough on regardless. But would he then hang onto power?
This seems unlikely. Sensible MPs from different parties should come together to form an emergency government, which would ask the EU for extra time to hold either an election or a referendum.
Dominic Grieve, the Tory MP and a former attorney general, floated this idea yesterday, telling the BBC: “There are a number of things which the House of Commons can do, including bringing down the government [via a vote of no confidence] and setting up a new government in its place.”
When someone put to this possibility to Cummings, “he spat his drink out laughing,” a senior Downing Street official told the FT. “The idea we will hand over to a new government rather than leave with an election after October 31 is laughable.”
But Cummings is wrong again. If a prime minister loses a vote of confidence, there are 14 days to see if anybody can command a majority in Parliament, under the Fixed Term Parliaments Act.
“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,” according to the Cabinet Manual (See para 2.19). What’s more, if Johnson still dug his heels in, the Queen has the reserve power to dismiss him. (See para 2.9).
Cummings is indeed a “master of misinformation”, as Grieve said yesterday. People need to be aware of his devilish plans, but should not fall for the propaganda that he’s all-powerful.