What next for Boris Johnson after another Commons defeat?

Can parliament trump Johnson in the war over no deal?

Boris Johnson: insistent  UK will leave on October 31st and has hinted he’ll bend law to avoid requesting another Brexit delay. Photograph: AFP

Boris Johnson: insistent UK will leave on October 31st and has hinted he’ll bend law to avoid requesting another Brexit delay. Photograph: AFP

 

Boris Johnson has failed in his second bid for a general election. The British prime minister had hoped to dissolve parliament on Monday evening and hold a snap poll on October 15th, but opposition parties denied his request. Instead, they want him to focus on a new Brexit deal and then, if he fails, to hop on a train to Brussels to seal another extension to Article 50.

Parliament was also suspended for five weeks on Monday night. There are no more immediate opportunities for MPs to collapse the Johnson government or force his hand further on Brexit. So the focus in Downing Street now is to broker a new Brexit withdrawal agreement that can pass muster with the 27 EU leaders and a majority of MPs. But has Mr Johnson’s entire strategy been sunk by parliament?

What does Boris Johnson do now?

Since his appearance on the steps of Downing Street, Mr Johnson has been eager to put a no-deal Brexit firmly back on the negotiating table. His strategy has been to show the EU that he is serious about leaving on October 31st potentially without a deal. The prime minister has one aim in talks with the EU: to remove or tweak the backstop, an insurance policy to ensure there is no hard border with Ireland.

But parliament passed legislation last week to effectively take no deal off the table again, leaving Mr Johnson floundering. His hardball strategy has been sunk by MPs who are set against the hardest of Brexits. Then his Plan B of calling a snap election, to let the public decide whether it wants no deal, was also embarrassingly sunk.

The best Mr Johnson can do for his Plan C is to keep negotiating with the EU, insist that no deal is still a realistic option and hope there is a breakthrough between now and the next EU Council on October 17th. Then his best outcome would be to strike a new deal, ram it through parliament and the UK would leave the bloc smoothly on October 31st.

There are growing indications from the prime minister that his efforts are focused on a Northern Ireland-only solution to the backstop – a combined agri-foods regime with Ireland appears to be where talks are going. This might pass muster with the EU, but not necessarily with staunch unionists. Such an outcome would, in essence, be putting a border in the Irish Sea – no matter how invisible and light touch it may appear.

But what happens if Mr Johnson cannot reach a deal?

Assuming no new Brexit deal emerges out of the next EU Council, the UK will be on course for an almighty constitutional bust up. Mr Johnson is insistent that the UK will leave on October 31st and has hinted that he will bend the law to avoid requesting another Brexit delay. While some senior Conservatives have urged Downing Street to ignore the law, ministers have suggested that he will instead test it to destruction.

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Senior government officials point to the sentiments expressed by foreign secretary Dominic Raab about where Brexit will head next. In an interview on Sunday, Mr Raab said that the government would “adhere to the law” but also “test to the limit what it does actually lawfully require”.

One government insider said: “There are often conflicting laws and legal advice and sometimes we lose.” This official indicated that Downing Street would seek to “sabotage” the legislation, forcing Mr Johnson to seek an extension and the government “expects to be in Supreme Court after the 19th if necessary”.

What is clear is that Mr Johnson is not giving up on his Brexit deadline without a fight. He appears to be sticking to his pledge to leave on October 31st and may contemplate resigning if he is left with no choice but to delay Brexit once again.

Can parliament trump Mr Johnson in the war over no deal?

The answer lies in who wins in the battle of the two Doms. Dominic Grieve, the former attorney-general who has masterminded efforts to thwart no deal, thinks that parliament will prevail and is confident that his legislation, carefully written over several months, will force the prime minister to extend and avoid no deal.

But the other big Dom in Westminster, the prime minister’s chief adviser Dominic Cummings, thinks otherwise. He believes that Mr Grieve’s law is poorly worded and has enough wriggle room to ensure that Mr Johnson will not have to break the law or his pledge to not delay Brexit again. Downing Street insiders said they are confident that they will not have to bend to parliament’s will.

Ultimately, this battle could be resolved in the courts. If Mr Johnson refuses to request an extension to Article 50, assuming there is no new deal out of the next EU Council, he could well be taken to the Supreme Court. Forget the “people versus parliament” slogans that No 10 has talked about, Brexit could soon turn into “people versus parliament and the judges”.

And all this would take place against the tense backdrop of a failed renegotiation and just days before the UK is set to be automatically ejected from the bloc under the terms of Article 50.

Is the UK going to have an election?

Yes. With a working majority of -43, Mr Johnson cannot govern. The prime minister will have to go to the polls sooner or later. All major political parties are in agreement that the UK needs an election before the year is out.

The Tories wanted an election now, before Brexit and before the next EU Council. But opposition MPs have decided that it should be after no deal has been averted. Dissolving parliament requires the support of two-thirds of MPs, so it is out of Mr Johnson’s hands. A cross-party deal was struck between Labour, the Liberal Democrats, Scottish and Welsh nationalists to ensure that an election would not be held before an extension is granted.

The assumption, therefore, is that the UK will head to the polls sometime in November. But there are too many unknowns. If the prime minister refuses to seek a Brexit delay, he may resign and his government could collapse sooner. Or MPs might pass a no-confidence vote in Mr Johnson when parliament returns – opening the door for another prime minister to resolve the Brexit impasse.

An election is clearly coming soon, it is merely difficult to say exactly how and when. – Copyright The Financial Times Limited 2019