15 August 2019

MPs trying to stop a no-deal Brexit are likely to find the pursuit of legislation easier – though still tough, argues Bronwen Maddox.

Jeremy Corbyn has called on other opposition parties to back him in leading a caretaker government to ask the European Union for an extension to the Brexit deadline of 31 October, and to call a general election within that time. The plan would be to force Boris Johnson from office through a no confidence vote, and to establish an alternative “strictly time-limited temporary government with the aim of calling a general election” while “securing the necessary extension of Article 50 to do so”.

There is some support for Corbyn’s letter

Corbyn's letter aims to stop the UK leaving the EU before a general election can be held. Many MPs argue that a general election would be fought on Brexit and it is wrong to frustrate voters having their say by having the election after exit had happened.

This prospect has arisen because the Fixed-term Parliaments Act holds that if the government loses a vote of no confidence and in 14 days neither it nor an alternative government can command the confidence of the House of Commons, then it must call a general election. Given the time needed for a campaign, it would be almost impossible for Johnson, if he lost such a vote in early September, to call an election for a date before 31 October even if he wanted to (and he wouldn’t).

Plaid Cymru immediately welcomed the attempt by the Labour leader to build a consensus to that end.

But the political obstacles to Corbyn’s proposal are considerable

Many MPs who might support the idea in theory would not want to install Corbyn in No.10 even as a caretaker prime minister. Jo Swinson, leader of the Liberal Democrats, has condemned the plan. Others appear divided on whether they would want a general election or second referendum.

Nor does Corbyn’s letter answer questions that any political partners would reasonably ask. It does not say how “time-limited” his “temporary” government would be (indeed, all governments are time-limited and temporary because there will be an election at some point). He offers “the aim of calling a general election” but not the certainty of doing so, nor does he say when. He does not say how long an extension he would ask the EU for (and presumes that one would be given, a likelihood but not a certainty). He does not say what powers he would have as prime minister or what powers others in this pact would have.

What is more, Corbyn does nothing to clarify Labour’s position on Brexit and what kind of a deal it would seek with the EU. He says only that “in that general election, Labour will be committed to a public vote on the terms of leaving the EU, including an option to Remain.” That is, he is asking other parties to make him prime minister for an unspecified time to pursue a Brexit policy that is still unknown.

Would Corbyn's plan to call a no confidence vote work?

Not for sure, even if he could overcome these political obstacles. It is conceivable – the subject of heated recent debate – that Boris Johnson, having lost a vote of no confidence, might not recognise an alternative government. Johnson might use the caretaker nature of what Corbyn proposes and its limited aims to argue that it was not a real government.

Other routes to blocking no deal

There are two other ways in which MPs can try to stop a no-deal Brexit on 31 October. The first would be to use the conventions of election campaigns to force the government to ask the EU for an extension until the election had been held.

The argument would be that during election campaigns, the government cannot make significant decisions. Corbyn refers in his letter to the “non-committal” response he received from Sir Mark Sedwill, cabinet secretary, when he asked him “for his view on how purdah rules would apply if Parliament is dissolved for a general election campaign that straddles the Brexit date”. Purdah is the period before a general election when constraints on government communications and actions apply, aimed at stopping governments from taking unfair advantage of their incumbent position to influence the outcome or write the script for a new government.

It is possible that Sedwill offers him more reassurance than he has chosen to take. In Sedwill’s letter to Corbyn, obtained by the BBC, he says: “let me reassure you that I am ready to ensure [the] full and proper application” of the purdah rules set out in the Cabinet Manual. Those say that the government can carry on essential business during a campaign but cannot initiate or announce major policy decisions or take actions of a long-term character. Sedwill’s remark could be interpreted to mean that he is open to arguments that it would not be proper for the government to let the UK leave the EU during the campaign.

On the other hand, the government might argue that leaving the EU on 31 October is not new policy. It might take issue with Corbyn’s assertion in his letter that “this government has no mandate for no deal”. It could argue that its legislative mandate comes from the triggering of Article 50 in March 2017 – which Corbyn voted for and whipped his MPs to support.

A second route is for MPs to use one of several manoeuvres to try to seize control of House of Commons business, at least to express their firm opposition to no deal, but really with the hope of passing legislation forcing the government to seek an extension. These include appropriating the Northern Ireland Act when the government brings a report to the Commons in early September, using emergency debates and manipulating the procedures of a no confidence vote. Elements of these might rely on the discretion of the Speaker, John Bercow, and even though he is keen to give Parliament a voice, they might also involve departing from conventions. None is certain to deliver the objective.

Yet they may well prove a simpler route than Corbyn‘s. They are focused just on one goal, getting an extension. Corbyn wants three steps: an extension, a general election and installing himself as prime minister. The political obstacles to that consensus as well as the procedural complexity seem formidable.

Comments

If John Bercow breaks with 'Parliamentary convention' in order to facilitate mechanisms to force the government into a taking a particular action, such as seeking an extension to Article 50, then no one could reasonably complain if the government did the same in return in order to combat those mechanisms.

I am sure that Johnson and Cummings have been war gaming for many months all the possible scenarios that might be attempted to stop Brexit taking place on the 31st of October. I think that is why they are so confident of success.