The Road to No-Deal Brexit...
Currently, the legal consequence of having triggered Article 50 is that we will leave the EU at 11pm on 31 October 2019. That means that from a literal perspective, a "no-deal Brexit" remains the default outcome (votes in Parliament notwithstanding).
There are 3 ways to avoid a no-deal Brexit outcome:
- Agree a deal before Brexit Day
- Extend Article 50 (delays the problem, but doesn't solve it)
- Revoke Article 50 and call off Brexit (not necessarily for ever, but certainly for some time)
So if we end up with a new Prime Minister who's hellbent on no-deal, Parliament may find itself in a game of cat and mouse. Remember, no-deal happens automatically in the absence of any deal, and we *will* leave on 31 October 2019 unless something changes.
Parliament has already voted against no-deal several times, but the votes weren't binding so the PM can disregard them. Future votes may well not be binding either, especially if they're Opposition Day motions. So legally the PM can ignore them.
MPs can only put down motions and amendments if Parliament is sitting and conducting business. So a "rogue" PM could seek to prorogue Parliament (send MPs home) and let the clock tick past 31 October, at which point the UK would crash out of the EU.
Another way a rogue PM could engineer a no-deal outcome would be to not put any significant business in front of Parliament. Instead, organise random meaningless debates on minor issues that are nothing to do with Brexit. That wouldn't give MPs any material to work with.
Now, MPs could try and put together a vote of no confidence, but it would take 2/3 of all MPs voting in favour to take down the Government, which is a very high bar. So the VONC might fail. Plus Parliament needs to be sitting for a VONC to be organised.
Or, the Tories could take down their own leader with an internal VONC, like the one Theresa May faced in December 2018. A simple majority of all Tory MPs would be needed to dethrone their leader, but again that's a high hurdle given the Tory membership will have enshrined them.
So what else could MPs do? Well, they could try and force the PM to extend Article 50 and buy some breathing room. But that would require
A) Taking hold of the order paper
B) Finding a majority for a course of action
C) Passing a binding motion
D) EU unanimously ageeing it
And what happens if the PM decides not to follow the clear instruction given by MPs? Like any attempt to prorogue Parliament, this would plunge the UK into a consitutional crisis.
It could lead to a legal challenge, which might well be successful. But the law doesn't move particularly quickly, so if the court case dragged on past 31 October 2019 we'd crash out of the EU while awaiting its conclusion. Once we're out, a legal decision can't reverse Brexit.
The bottom line is, no-deal Brexit isn't inevitable. But a determined PM, unafraid to ignore convention and the political consequences of their actions might be very, very hard to stop. And the rotating knives of 31 October 2019 won't stop just because we're mucking around!
Two more things to consider:
- How the Queen might get dragged in (e.g. if MPs implore her to refuse consent to prorogue Parliament)
- The role of the Speaker, who has already laid out his stall against political tricks and games.
And one final wrinkle: there is a school of thought that suggests the EU could give us an Article 50 extension even if we never ask for it (this is a controversial view, but some legal experts support it). Would they dare to do so if facing down a rogue PM? Who knows!
So what's the answer? There isn't one. But the takeaways are:
A) No-deal is the default outcome of the Article 50 process
B) No-deal is not inevitable
C) Much depends on the "rationality" of our new PM
D) We may still be far, far away from peak Brexit messiness!
More on this topic in this excellent explainer by Daniel Kraemer for the BBC...…
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