British PM threatens to defy the Law?

After two posts on “Life and Death” issues, it pains me greatly to find myself returning to UK politics and Brexit. And I do so only to help answer the questions of my non-UK readers who form the bulk of this blog’ readership.

Yesterday saw the House of Lords confirm the earlier House of Commons vote which seems to make a “No Deal” exit from the EU illegal. Logically this would require the Prime Minister to seek from the EU an extension to the deadline of 31 October. He has, however, apparently indicated that he will not seek such an extension – thereby putting himself as PM in the remarkable position of being in contempt of the law
And the Commons also denied Johnson’s attempt to force a General election - with opposition leaders confirming they would vote down the further attempt he is rumoured to be seeking on Monday. It is, after all, their last day before he (with the Queen's gracious permission) "suspends" them (for 6 weeks). The mind boggles!

I thought the flowchart in this recent article was complicated – until I saw the various options presented by this specialist in EU politics.

The BBC flowchart seems to be simpler - although I don’t quite understand their comment that a simple motion with a specific date for an election would require only a simple majority since that is surely ruled out by the “Fixed Term Parliament Act” of 2011 (which requires a 2/3 majority)

But it was public admin academic Colin Talbot who put the issue most pithily in this blogpost

What if the Government tables a motion for a General Election under the terms of the Fixed Term Parliaments Act?

This requires a two-thirds majority of all MPs – whether present and voting or not. That’s 434 MPs. They have already tried it once and failed. It’s unlikely to succeed when they try again on Monday. After that Parliament is going to be Prorogued (suspended) so it will be impossible before it resumes in Oct.

What if the Government brings forward a one-line Bill to suspend the Fixed Term Parliaments Act and call a General Election?

The Government could do this and try and fix a date that meant the GE could not stop Brexit happening on 31 Oct. They would need a majority, which they don’t have. It would be open to amendment, which could negate what they are trying to do.

What if the House of Commons passes a vote of No Confidence, in the terms stipulated by the Fixed Term Parliaments Act, next week?

This, quite uniquely, would require the Government to move such a motion itself and puts the Opposition Parties in a dreadful quandary -  difficult to vote against it (and thus vote confidence in the Government), so it would pass. It only requires a simple majority.

This would trigger the 14-day period during which a General Election can only be averted by passing a motion of confidence in HM Government (who ever that might be by then).

Except Parliament would be suspended because it will be Prorogued. There would be no House of Commons to pass such a resolution. The clock would tick down and a General Election would be triggered after 14 days, probably after 1stOct. The PM can then fix that election for a date that means the UK will crash out of the EU on 31 Oct. There would appear to be nothing Parliament could do to stop it.

BUT, to do this the Government would have to pull this stunt whilst Parliament is still (just) sitting. If they did the reaction would likely be explosive. We could well see unprecedented moves to overturn Prorogation by the House of Commons appealing directly to the Queen? This would obviously create a huge constitutional crisis. Or Parliament could try and pass a Bill suspending the FTPA?

Of course, if the Government were voting No Confidence in themselves to try to force a General Election through this highly dubious route, it might not be seen as so bizarre for the Opposition to vote the other way? In these strange times, who knows?

What if The Prime Minister extends Prorogation?

It is perfectly possible for Boris Johnson to go back to the Palace and ask Her Majesty to extend Prorogation so Parliament does not re-assemble, and he cannot be challenged.

If he did something so blatant there could be push-back from the Palace, through the Courts, and even by the House of Commons doing something unheard of like re-assembling itself.

                     

A Scottish and English court have both upheld the Prime Minister’s right to suspend Parliament for 5 weeks but appeals will be heard in the Country’s Supreme Court in what is expected to be a 3 day hearing on 17 September. But in the meantime Parliament is muzzled and shackled…..so is the state of the UK this day of the Lord 7 September 2019