Brexit and the constitution: will a Johnson premiership prove dead on arrival?

Boris Johnson often paints a no-deal Brexit as the only alternative to an untimely political death. Britain must leave the EU on 31^st October, “do or die.” Kick the can again, he says, “and we kick the bucket.”

Yet a Johnson government’s commitment to a no-deal Brexit could itself draw the reaper to the threshold of No 10. Dominic Grieve, a former attorney general now on the Tory backbenches, says that a “large number” of Conservative MPs will do“everything possible” to stop no-deal, including voting against the government in a parliamentary confidence vote. Defence Minister Tobias Ellwood says there are “a dozen or so.”

In truth only a small handful of Conservatives have flirted with the idea in public but, then again, only a small handful is needed. If Grieve and Ellwood joined forces with Ken Clarke and Philip Lee, both of whom have suggested they could bring down a Tory government over no-deal, then the government’s working parliamentary majority of four would be gone in the blink of an eye. That raises difficult constitutional questions. If Boris Johnson does win the Conservative leadership contest, as expected, could his government be stillborn, brought down before he has entered the chamber for his first Prime Minister’s Questions?

Johnson would not become prime minister automatically upon winning the Tory leadership contest. Theresa May will remain in place until she resigns. At that point, it would fall to the Queen to appoint a successor.

The cabinet manual offers some principles to guide that process. “In modern times the convention has been that the Sovereign should not be drawn into party politics,” the manual says. If there is any doubt over who should become prime minister, then it is for “those involved in the political process, and in particular the parties represented in parliament,” to determine who is “best placed to be able to command the confidence of the House of Commons,” and to tell the Queen. This responsibility falls “especially” on the incumbent prime minister, who at the time of her resignation may be asked by the Queen who can best command the confidence of the House.

There are two main options for how to proceed. The first, conventional way would be for May to advise the Queen to appoint the leader of the Conservative Party, even if it did not appear that he could command the confidence of the House, and leave the House to vote confidence or no confidence at a moment of its choosing. A second, more contentious option put forward by Meg Russell and Robert Hazell at the UCL Constitution Unit would be for May to advise the Queen that she should hold off on appointing a new prime minister until the new Tory leader demonstrates that they could command confidence, with some form of investiture vote.

That latter route would be a radical constitutional innovation, and it seems an unlikely parting shot from May. After all, the convention is not that the Queen appoints someone who can command the confidence of the House, but whoever is best placed to command its confidence. Even if a handful of Tories deserted Johnson, there could be little doubt that he was still the best placed of a badly placed bunch. Jeremy Corbyn, whose own party falls around 70 seats short of a majority and has no standing deals with the smaller opposition parties, is not going to be commanding the confidence of the House in a hurry.

Assume, then, that May does resign straightaway and does advise the Queen to appoint the new Tory leader. If there were a handful of Tory MPs unprepared to support his government, could he squat in No 10 long enough to bring about a no-deal Brexit anyway?

There are two ways that might happen, though both seem so scandalous that they should be implausible. The first is that the new prime minister advises the Queen to prorogue parliament before it has had the chance to vote no confidence in his government, or the chance to block “no deal.” The resulting mess would make the “crises” of the last few months look like a constitutional picnic. The Queen would come under pressure to reject her prime minister’s advice, straining a convention at the heart of the system of constitutional monarchy.

If Prime Minister Johnson did not go that far, there may be another way for him to guarantee a no-deal exit on 31st October. Even if he did let parliament hold a confidence vote, and even if he lost it, it would take some time to install a new prime minister. There would be a brief period in which others tried to form a government and, after that, probably a general election. That process could well outlast the current Article 50 deadline, and Prime Minister Johnson could just refuse to agree an extension with the European Council. Britain would leave, without a deal, by default.

The political fallout of such barefaced defiance of parliament would, no doubt, be gruesome. Johnson had better hope, therefore, he keeps hold of the confidence of his backbench colleagues and so the House of Commons. If he loses it then he—and the British constitution—could be in for a very rough ride this autumn.