Brexit revisits the civil war

With summer still in full swing in the northern hemisphere, it’s been a rather quiet couple of weeks in the never-ending Brexit saga. But that can’t last much longer: parliament is due to resume in three weeks’ time, and prime minister Boris Johnson will need to decide on his next move.

Assuming that the European Union is not going to agree to amending the withdrawal agreement – and at this point there’s no sign that he is even trying to convince them, much less that he would succeed – Johnson has basically three options: to reverse course and try to get the existing agreement through parliament; to push ahead with a no-deal exit; or to call an early election (to seek a mandate for one of the other two, or for something else entirely).

The first option would antagonise the mass of his supporters without much compensating advantage, so it seems unlikely. He has also repeatedly ruled out an  election, but many observers still suspect that the boldness and unpredictability of the tactic will appeal to him.

I’ll come back to election timing on another occasion; for today let’s assume that Johnson is aiming at no-deal exit on 31 October, the date already set in law. There is clearly a majority in the House of Commons determined to stop him, although with different priorities among themselves. How might this play out?

Conflict between the executive and parliament is an old theme in British history. In earlier times there would have been a simple answer in a situation like this: the executive had the ultimate weapon, the royal prerogative of dissolving parliament. With no parliament in being, Brexit would be allowed to take its course.

That’s why the Long Parliament in 1641, in the conflict with Charles I that ultimately led to civil war, passed an act to prohibit its own dissolution without its consent. But no parliament has ever followed suit; when the Whigs tried the same move in 1780 it fell flat.

In 2011, however, everything changed. The Fixed-term Parliaments Act, passed by the Cameron-Clegg government, abolished the prerogative of dissolution and provided for parliament to sit for a fixed term of five years, with two exceptions.

The first is that a two-thirds majority of the House of Commons can vote to hold an early election. This is the provision that Johnson would use if he decided on one; there’s no doubt that such a motion would be carried.

The other exception is in the case of a motion of no confidence in the government. But that doesn’t make for an immediate election; rather, it sets the clock running for 14 days. If in that time a motion of confidence in the government is passed, everything’s OK. If not, parliament is dissolved for an election.

The 14-day grace period works for the case where a government loses a vote for some temporary reason (such as absent MPs); or where it succeeds in buying off one of the parties that had opposed it; or where it resigns and a new government, with majority support, takes its place.

In other words, the government that wins the confidence vote doesn’t have to be the same one that lost it. But what happens if a government that has permanently lost its majority refuses to resign?

This is the question now now being posed, since one possible measure to stop Johnson is a vote of no confidence, to be followed by a transitional government formed by the opposition parties and dissident Conservatives, which would then request a postponement of the Brexit deadline to allow for a fresh election or referendum (or both).

But the act says “confidence in Her Majesty’s Government” – not in some prospective government, but an actual government. So could Johnson, as his supporters have suggested, frustrate any new government by simply refusing to resign?

In the old days before 2011, it was generally accepted doctrine that if a government lost its majority it was not obliged to resign; it had the option of calling an election. That’s what happened on the last occasion that a government lost a vote of confidence, in 1979.

The clear intention of the Fixed-term Parliaments Act, however, is to change that, and to allow an alternative government to be formed if there is one that would command a majority in the Commons. And there is nothing to stop parliament making that explicit by coupling its motion of no confidence with a resolution setting out its preferred alternative.

Faced with such an address from the Commons, the queen would have no alternative but to ask for Johnson’s resignation. If he refused, she would be entitled to dismiss him. Dominic Grieve, one of the leading Tory dissidents, put it sharply last week: “The suggestion that Mr Johnson can stay in office after a vote of no confidence if an alternative administration is capable of taking office is complete and total nonsense.”

The British political class has a widespread horror [link added]of getting the queen “involved in politics”, but fundamentally that is her job: to act as the constitutional umpire when all else fails. In her 67 years on the throne, this could well be her most serious occasion for it yet.

Parliament, however, is not limited to motions and addresses. If need be, it can also legislate – in fact it has already done so, with an amendment passed last month that prevents parliament being prorogued during the critical period.

A number of rules and conventions keep the Commons, in normal circumstances, under the control of the executive. But with no written constitution, none of those rules are unchangeable; parliament can take control of its own proceedings, and once it does, by the time-honored doctrine of parliamentary supremacy it can do anything at all.

It could, for example, legislate to force the prime minister to seek an extension of the 31 October deadline, and if he refused it could legislate to vest executive authority for the purpose in some other person(s). It could also repeal the Fixed-term Parliaments Act, and make whatever alternative arrangements it wished for the timing of elections.

To be valid, of course, such legislation must first receive royal assent. But no monarch has refused assent for more than three hundred years: one can be very confident that the queen would not cross that bridge, and even Johnson is unlikely to suggest it.

None of this means that Johnson and no-deal are doomed. In order to implement any counter-measures, the anti-Johnson majority first have to agree among themselves on exactly what they are trying to do, and that isn’t going to be easy. But at least they are working on it.

And if they do reach a consensus, they can be confident of their ability to implement it. As Charles I discovered, the position of an executive with a determined parliamentary majority against it is not a happy one.