h1

An unconventional carry-on

August 10th, 2019

Never mind what the government should do: what will it do?

Ravi Ashwin might not be the first name you think of as being of particular relevance to the Brexit denouement this October. However, his dismissal of Josh Buttler in the IPL this March is an excellent example of one side playing to the rules while the other played to the conventions of the game – and who went on to lose.

Too much of the commentary around what’s likely to happen this September and October in the clash between the forces in parliament determined to stop a No Deal Brexit and a government driving for precisely that, has concentrated on precedent, convention and the spirit of the game. I think that, like Buttler, they’re making a serious error. Johnson and Cummings have little respect for these conventions and even less incentive to follow them: if they can ignore them, they will. Both neutral analysts / commentators, and opponents of the government’s policy therefore need to change their way of thinking.

What does that mean in practice? We can assume that at some point when parliament resumes, Jeremy Corbyn will table another Motion of No Confidence in the government, not least because he’s effectively said that he will. There may be some initial parliamentary skirminshing before then but numbers and processes make it extremely difficult for anything to come of it, not least because Labour has little incentive to play along with lesser processes when the prospect of ousting the government is in sight.

However, the first question we should ask in this new mind-set is will the government even allow the No Confidence motion to be tabled? The convention is that a VoNC from the Leader of the Opposition is always accepted and debated the next sitting day. However, this is only a convention and the government isn’t obliged to make time. It cannot be overstated how important it is in this process that the government controls the parliamentary agenda.

The answer, however, is that it almost certainly will make time – not because of the conventions but because of raw politics. Leave aside that there’d be the most almighty furore, the Opposition is not without options, most notably an appeal to the Speaker for an emergency debate under Standing Order 24. These debates are within the gift of the Speaker, not the government.

Traditionally, the motions in these debates are simply that the House has considered the issue in question but Speaker Bercow isn’t a great one for tradition either (or only when it suits him), and strongly hinted in March that the usual wording is not compulsory. In other words, Bercow might very well allow an emergency debate on a FtPA-worded Confidence vote if the government unreasonably refused to schedule a debate tabled in the usual way. Indeed, such a move might work strongly against the government, which often has ministers scattered around the country and world, because the Speaker can schedule them for later on the day that the application is made, and the debates are limited to three hours. An effective opposition whipping operation could therefore put the government at a serious disadvantage – so the government won’t risk it.

Let’s assume then that the Confidence vote is lost, although this is far from an assured outcome. At the last No Confidence vote, in January, Theresa May won by 19 votes and while there’ve been defections and resignations since, we (and Labour) can’t assume that all independents will necessarily vote against the government. Some may abstain while others (Sylvia Hermon and Charlie Elphicke, for example) are likely to back Johnson. Corbyn is likely to need at least 5 Tory rebels to carry the vote: a high tariff.

Still, let’s run with that because it’s where the uncertainty lies (if Johnson wins the vote, he and his policy become effectively untouchable until a new VoNC). Some have suggested that Johnson should (or even must) resign if it’s likely that someone else could command a majority government. These suggestions miss the point that while constitutional convention indicates that he should, the law does not – again, we’re in a rules vs spirit of the game contest.

So can he simply sit things through, using the government’s powers (and he would still be PM, despite the defeat), to see off challenges? I don’t think so – though again, we’d be piling crisis on crisis. Some of his supporters assert that a PM, defeated in a confidence vote, has always had the choice of resigning or seeking an election and hence it’s perfectly legitimate to ‘choose’ an election under the FtPA by shutting down debate and running down the clock. The assertion, unsurprisingly, is wrong. A PM – especially one that parliament has just rejected – has never had the right to a dissolution, just the right to request it. The Queen has the power to say ‘no’, and the Lascelles Principles define when she should do so.

It had been assumed that the FtPA put Lascelles into abeyance but if a PM sought to argue a right to an election (and hence a right to block parliamentary action within the 14 days), then they come back into play. In effect, if the monarch is confident that another government could be formed from within the existing parliament then she would be within her right – indeed, it would be her duty – to dismiss the PM and invite that alternative person to form a government. Even so, politicians usually avoid bringing the Queen directly into politics; this would be to drag her right to the centre of the storm – something that she’d hate (but then that’s the point: if the Palace is reluctant to act then that favours the forces of inertia).

Whether that scenario applies in 2019 is another matter. The opposition might just unite to reject Boris but can they agree on an alternative within the 14 days? If not, the election campaign would block out most if not all of the time until Brexit Day anyway. For that matter, if it doesn’t look like an alternative could be found, that severely limits the incentive for Tories to rebel at the initial No Confidence vote.

I don’t see any more than one option, in reality. For all the talk of Yvette Cooper, Hilary Benn, Dominic Grieve, Ken Clarke and so on, the crucial figure is Jeremy Corbyn: without him, nothing happens – and Corbyn will not play second fiddle to anyone in his party (he’s the one with the double leadership election mandate, thank you), or outside it when his MPs outnumber all other parties combined by about 3½-to-1. But then if MPs are so keen to stop a No Deal Brexit, why wouldn’t they accept a brief Corbyn government which existed solely in order to extend the A50 period again, if it was the only option?

Two more conventions have been raised as binding the government at this point: the commitment not to make any major policy changes while effectively a ‘caretaker’ government, and not to make any major or controversial announcements during the purdah of an election campaign. Again, don’t assume anything: it doesn’t much matter what the Cabinet Manual says is conventional or expected – the only thing that will matter is what is required. There’s no legal requirement to act so impartially.

That means that there’s no requirement to request an extension Article 50, an act which would be politically suicidal for Johnson. If he doesn’t have to do it, he won’t, no matter how loud the complaints. (On this point at least, I have some sympathy – not only is the default already set in law but parliament would have had two weeks to find an alternative outcome and would have failed to do so).

Put simply, I think it’s entirely possible that over the next three months we could see any one or more of the government trying to manipulate parliament’s timetable to deny assumed opposition rights; failing to resign after being No Confidenced, even if someone else could form a government; or making controversial decisions (or inactions) during an election campaign. Those wanting to stop it need to understand that it’s not that the rules of the game have changed; it’s how those rules are interpreted and (self-)enforced.

David Herdson