A no-deal Brexit is less inevitable than it looks

Boris Johnson says he won’t talk to the EU unless it agrees to scrap the Irish backstop. The EU says that any deal with Britain must be based on the current withdrawal agreement, including the backstop. With neither side willing to blink, Britain seems set to leave the EU without a deal on 31^st October. Yet despite appearances, that outcome remains far from certain.

At the moment Johnson is taking a very hard line with the EU. But might he flinch at the last moment? As the end of October approaches, he will realise that the EU is unwilling to budge. He will watch financial markets falling, shoppers buying in panic, foreign investors screaming, farmers threatening to slaughter livestock and tensions rising in Northern Ireland. He may wonder whether he really wants to fight an election campaign with the economy in turmoil.

If Johnson did seek a reasonable compromise from the EU, it would be willing to oblige—for example by amending the withdrawal agreement to produce a longer transition period or a Northern Ireland-only backstop, producing clarifications or interpretations, or changing the political declaration on the future relationship. But if the EU and Johnson dressed up Theresa May’s package to make it look prettier, it would still struggle to pass the Commons.

If Johnson himself will not prevent no deal, MPs will have to do so. Some of them hope to amend legislation so that they can take control of the parliamentary agenda. That would allow backbenchers to propose a bill requiring the government to seek an extension of Article 50. But this method can only work if the government proposes laws, and it may try to govern—at least for a while—without doing so.

Then MPs would have to look to Standing Order 24, a procedure which allows the opposition—if the Speaker approves—to hold an emergency debate on an amendable motion. An amendment could enable MPs to take over parliament’s agenda on a specified date, leading to legislation on extending Article 50.

If these agenda-seizing methods fail, MPs will focus on motions of no confidence. Given that the government’s majority is just one, it could easily be defeated. But a successful motion would not in itself stop no deal. The Fixed-term Parliaments Act (FTPA) specifies a two-week period before an election has to be called. If another government emerges in those two weeks, with the confidence of the House, there need not be an election.

Such a government of national unity would have two tasks: to ask the EU for an extension of Article 50, and to organise an election. It would need a figure-head who appealed to MPs across the political spectrum. It would require the support of most Labour MPs, plus a substantial minority of Tory ones. At the moment this seems unlikely, with the Labour Party insisting that Jeremy Corbyn himself would have to be the prime minister. Pro-EU Tories would never vote for a Corbyn-led government. However, some Labour frontbenchers think Corbyn’s stance may become more flexible, if and when his own bid to become prime minister fails.

But even if a new government had a Commons majority, Johnson’s advisers say he would refuse to resign and simply set a date for an election after 31^st October. The FTPA is unclear on whether the prime minister must resign in such circumstances. Whatever the legal position, clinging to office after losing a vote of confidence would surely breach a constitutional convention.

Britain’s courts will be reluctant to deal with constitutional conventions, as opposed to matters of law. But if Johnson breached conventions he would risk drawing in Buckingham Palace. One official who has worked with the Palace tells me that he thinks its top priority would be not to become involved. The Queen sees her role as unifying the country; taking sides on Brexit would be divisive. She would not want to go against the advice of her prime minister. However, her officials would do their best to avoid a difficult situation by gently nudging the prime minister away from steps that would breach constitutional conventions.

Many plausible scenarios lead to a general election. But are the signals coming out of 10 Downing Street—that the election should not be held until after Brexit has happened—entirely sincere? Would Johnson really want to manage the consequences of no deal, with for example chaos at ports, during an election campaign? Would he not prefer parliament to force him to extend Article 50 so that the election took place with Britain inside the EU? That would allow him to blame MPs for the delay, see off the Brexit Party’s threat and position himself as the people’s champion against the Remainer elite. So perhaps Johnson will shed crocodile tears if MPs force him to delay Brexit.