With the advent of the newest incarnation of the Conservative government, with Boris Johnson at the helm, a ‘No-Deal’ Brexit is looking increasingly likely. The Prime Minister has repeatedly gone on record, stating that the UK will leave the EU on 31st October “do or die”, even if this means exiting without a deal in place; however, there is increasing support by MPs who oppose a no-deal Brexit to block this but the question is, is this achievable, how, and what are the legal ramifications? These questions open up a whole host of adjacent issues which this post will touch upon.
What is a “No Deal” and Why Can’t a “Deal” be Reached?
A no-deal Brexit essentially means that the UK would leave the EU without any agreement in place concerning how this process would operate, or how we would separate. This would pull the UK out of the customs union and single market overnight, elements which are designed to help trade between EU nation states. This would leave the UK trading under the arguably far more unfavorable World Trade Organisation (WTO) rules until new agreements could be struck. This, naturally, has caused quite some concern among members of Parliament, many of whom wish to prevent said no-deal exit.
Boris Johnson has stated that he is looking to form a new deal, but if one is not reached by the 31st, the UK will leave without one. The previous deal on the table, pushed for by Theresa May, was a lengthy document exceeding 500 pages; however, it contains provisions for citizens’ rights, a time-limited implementation period and, perhaps most pivotally, provisions for a continuing soft border with Northern Ireland involving a lack of splitting of the UK customs territory.
It is this ‘Irish Backstop’, which seeks to preserve a softer border between Northern Ireland and the Republic of Ireland, that is one of the core issues holding the UK back from reaching a new deal. The problem lies in that this ‘backstop’ has proven unacceptable to many conservative MPs, as well as the current Prime Minister (Boris Johnson) who has said that “a revised Brexit deal must include ‘the abolition of the backstop’.” Conversely, on 22nd July 2019, it was reported that President Macron stated that “the Ireland-Northern Ireland backstop plan was ‘indispensable’”. It is this key context that shows the likely course of a no-deal Brexit, but can anything be done?
What are the Challenges to Overcoming a No-Deal Brexit?
The current challenges to stopping a no-deal are centered in that, in theory, Mr. Johnson does need to actively do anything for said no-deal Brexit to occur as the BBC reports that it is already written into law that the UK will depart on 31st October, and the Prime Minister could just let the clock timeout, as it were; however, there is some argument that the European Union Withdrawal Act 2018 (the 2018 Act), the legislation relied upon above, is not set in stone. The 2018 Act functions by way of repealing the European Communities Act 1972, with Section 1 stating that this Act will be repealed on exit day. It is this aspect which undermines the Prime Minister’s insistence that the UK will leave on 31st. While exit day is currently set for this date, it could still be amended under Section 20 of the 2018 Act, as has already occurred. Further to this, there is nothing stopping Parliament from legislating to revoke Article 50. The Government’s reliance on this becomes hollow rhetoric and doing so goes counter to the rule of law.
The second core challenge is the potential for the Prime Minister to suspend Parliament in October, allegedly to force through a no-deal Brexit, in the case that a deal cannot be reached. This may as somewhat of a surprise, but Parliament closes every year, for a short period, as a matter of course. This is officially known as ‘proroguing’ ; however, the question is could the Prime Minister force Parliament to close? The answer is, theoretically, but this power does not rest with MPs, it rests with the Queen upon being asked by the Prime Minister. If Mr. Johnson were to do this, though, it would leave the Queen in a very controversial position as she would essentially be forced, by way of Parliamentary Convention, to agree. Therefore, in theory, Parliament could be closed preventing it from passing any laws to prevent a no-deal or soften the blow.
This being said, a majority of MPs have approved an amendment to the Northern Ireland (Executive Formation) Bill that “blocks suspension between 9 October and 18 December unless a Northern Ireland executive is formed” (BBC). Further to this, a legal challenge has been raised by MPs, including former Prime Minister John Major, against any attempt by Boris Johnson suspending Parliament. In fact, a hearing has been declared in advance of 31st October leaving deadline by the Course of Session in Edinburgh. There is a clear argument to be made here that suspending Parliament for such a reason is unlawful and potentially unconstitutional.
Update (28th August): It may well be the case, however, that the above options will be more limited as, while originally Mr. Johnson did not rule out suspending Parliament, on 28th August, the Queen gave her approval for such a measure. Parliament is set to be suspended from the week commencing 9th September and ending on 14th October, leaving precious little time to review the options and potentially prevent a no-deal Brexit. This is the longest suspension of Parliament, if it occurs (see below options that still apply), since 1945 where Winston Churchill was caretaker Prime Minister, and this also sees Parliament in the longest session since this time. This has caused outrage among MPs, including the Speaker of the House of Commons who stated this is a “constitutional outrage” and:
“However it is dressed up, it is blindingly obvious that the purpose of [suspending Parliament] now would be to stop [MPs] debating Brexit and performing its duty in shaping a course for the country.”
What Paths Are Open to Stopping a No-Deal?
Option One: MPs may attempt to amend the government report due in September concerning efforts to restore Northern Ireland’s devolved administration in Stormont. This would, naturally, signal opposition to a hard Irish border to the Government; however, this may lack the force preferred and such an amendment, even if it is approved by Parliament, it may not even be binding. This does not mean, though, that it would have no effect, as such amendments do place a considerable amount of pressure on the Government to act upon them. Considering the hardline approach to a no-deal Brexit, it is unclear just how Mr. Johnson would respond.
Option Two: A potentially strong route to oppose a no-deal might be replicate what backbenchers did earlier in 2019, taking control of the Commons Order Paper, a power that usually rests in the hands of the Government, to pass legislation mandating the Prime Minister (at the time Theresa May) to request an Article 50 extension. Repeating such a feat might be more difficult in this instance, however, if not impossible. This is because the Cooper-Letwin Bill, which achieved the above, was a lengthy difficult process and one which the current timeline might not allow for. To achieve a similar effect in the current timeframe would require the use of Commons Order 24 to organise an emergency debate. This is a prerequisite for legislation to be passed, potentially stopping an exit without a deal by passing a bill to request a further Article 50 extension. Such legislation, if passed, would have to be worded carefully, however, to ensure Mr. Johnson would not have room for an alternative course. There has been some speculation that the Prime Minister could ignore Parliament if it passed such a bill; however, if this occurred then, aside from being a flagrant breach of Parliamentary supremacy and the rule of law, then he would be open to court enforcement with the case of M v the Home Office (1993) offering the closest parallel example.
Update (28th August): In light of the earlier update, after confirmation of suspension permission from the Queen, this may have spurred on a cross-party ‘rebel alliance’ to push through legislation similar to a Cooper-Lewin Bill to request an Article 50 extension. The difficulties noted above, were considered in isolation away from the prospect of Parliamentary suspension and this has, and will, likely provided the impetus needed for this route to succeed. Such a move is currently being headed up by Jeremy Corbyn and further hopefulness to this approach is provided in the form of the signing of the Church House Declaration, showing a cross-party commitment to using whatever mechanism is necessary to prevent the Prime Minister from proroguing Parliament.
Update (30th August): An attempt by a group of 75 parliamentarians (which included Liberal Democrat leader Jo Swinson) has failed to halt Mr. Johnson’s plan to shut down parliament. The request was declined by Lord Doherty at the Court of Session, who stated that there was “no cogent need” for an interdict. Read more about this story on BBC News.
Option Three: In addition to the above, it is highly likely that the Opposition will move to make a motion of no confidence in Boris Johnson’s Government. If successful, this would engage two constitutional provisions. Firstly, the convention that the UK Government’s authority is based upon its capacity to command confidence in the House of Commons under paragraph 2.7 of the Cabinet Manual. If lost, as evidence through a successful vote of no confidence, then the Prime Minister must resign at an appropriate time. It is this latter element that could cause some issues, though it is constitutionally unfathomable that a Prime Minister could ignore and carry on in light of such a vote.
The second element is the Fixed-Term Parliaments Act 2011 (FTPA). If the vote of no confidence is successful, then this triggers a 14-day period under S.2(2) FTPA. In light of this, a few things might happen with perhaps the best-case being that the vote stands, and a general election must take place; however, Mr. Johnson’s government might persuade enough MPs to change their mind, regaining support. This seems currently unlikely, though, considering the sheer opposition to a no-deal Brexit, unless of course the government changed its tact and extended Article 50, for instance. This being said, they would have to win a second confidence vote within this 14-day period which might be challenging. Finally, an alternative government might form.
Assuming, then, that the vote is successful, then s.2(7) provides that the timing of the election should be determined by the Queen “on recommendation of the Prime Minister”. The clear issue of this, is that Mr. Johnson’s government could simply advise that this timing should be after the 31st October leaving Parliament in the same position they would have been otherwise: with no deal; however, Parliament could, like with Option 2 above, amend the FTPA, or otherwise, put forward a Cooper-Letwin Bill. This would be politically very difficult, though. Finally, there might be a chance of judicial review on the Prime Minister’s advice to the Queen under s.2(7), but this faces issues in itself of whether a court would regard the question as justiciable. As with the above options, this is also fraught with many factors which might counter Parliament at each turn.
Update (30th August): Prorogation of parliament has been deemed unlawful by the Supreme Court. Justice Hale stated that the prorogation impeded parliament in carrying out it’s duties.
The effect on the fundamentals of democracy was extreme.
This court has already concluded that the prime minister’s advice to Her Majesty was unlawful, void and of no effect. This means that the order in council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the royal commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 justices.
Extract from the Supreme Court Judgement
In light of the above, it is clear that Parliament has several options to prevent a no-deal Brexit, but the paths to these ‘solutions’ are difficult and by no means assured. A combination of Options Two and Three seems like the wisest course of action, covering the broadest approaches while covering some of the shortfalls of each. While a short timeframe and political volatility are definitely issues to consider and overcome, the bold move by Prime Minister Johnson in securing a suspension of Parliament may be exactly what was needed to force an alliance in order to push through legislation or call a vote of no confidence. Further to this, pressure will likely come, if only slightly, from a petition to not prorogue Parliament, which as of writing this has almost 1.5 million signatures. Please post your thoughts as to the above in the comments below and we will endeavour to provide legal updates as they become available.