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Chris White was Special Adviser to Patrick McLoughlin, when the latter served as Chief Whip, as well as to Andrew Lansley and William Hague when each served as Leader of the House. He is now Managing Director of Newington Communications.

Boris Johnson will have the happy task today of speaking to colleagues and asking them to serve in his new administration. Yet the honeymoon period for our new Prime Minister will be vanishingly brief.

As Henry Newman outlined yesterday in his article on this site, the palatable options open to Johnson are narrow indeed. He has categorically ruled out extending Article 50 – leaving either the agreement of a revised deal, or leaving without a deal as the only realistic outcomes that he can pursue.

How will MPs react? There are now just 100 days before October 31st, when the UK, under the existing legal default, will leave the EU without a deal. If no revised deal can be agreed, and the new Prime Minister reiterates his commitment to leave without a deal, then MPs seeking to stop a No Deal exit will have to decide whether they want once again to try and “take back control”. Here’s how they might do it:

Opposition Days/Business of the House motions

The easiest option would be for MPs to use an Opposition Day debate to seize control of the Commons timetable, allowing time to debate a Bill that would mandate the Prime Minister to seek an extension should a No Deal exit be on the cards at the end of October.

MPs led by Oliver Letwin and Yvette Cooper achieved such an outcome with the European Union (Withdrawal) (No.5) Act in April, when the Commons passed all stages of the Bill in both Houses in five days, proving that backbench MPs can act to seize executive power for a specific and tightly drawn Bill.

However, the last attempt to do this in June, when MPs used an Opposition Day debate to move a motion that would have given them control of the Order Paper on a later day in the month, failed to pass by 11 votes. With a number of Conservative MPs having resigned during the last week or so, such as Alan Duncan, Margot James and Anne Milton, as well as Cabinet Ministers such as Rory Stewart, David Gauke, Greg Clark and Philip Hammond being expected to do so today, the numbers are likely to be much closer if any similar attempt is made in the future.

The biggest problem with this plan is that the scheduling of Opposition Days is in the hands of the Government, and I doubt very much that the new Chief Whip, Mark Spencer, plans to award any before November 1st.

MPs could instead amend any Business of the House motion to give time for debating of an Extension Bill, as they did back in January for the first “Grieve amendment”. Once again, the Government whips will be wise to this trick, and every effort will be made to schedule only general debates, or non-amendable motions over the next few weeks.

SO 24 Emergency debate

The next option is a ‘Standing Order No. 24’ debate. These debates permit an MP to ask the Speaker to allow time for an emergency debate on a particular topic. Traditionally, such debates are unamendable and are not voted on but, at a UCL Constitution Unit debate that I spoke at yesterday with Hilary Benn, he openly talked of this as an option.

Clearly, the Speaker feels there is enough leeway in Standing Order 24 to allow him to award an emergency debate on an amendable motion. This is the most likely course of action – though with very little sitting time before October 31t, it remains to be seen whether MPs have left themselves enough time to get legislation through, and whether the gambit is watertight.

Vote of no confidence

Under the Fixed-Term Parliaments Act, if the Commons defeats the Government on a motion “That this House has no confidence in Her Majesty’s Government”, a 14 day process is triggered in which an alternative is sought. That alternative Government must win a motion “That this House has confidence in Her Majesty’s Government”, or else a general election will be triggered. By convention, only the Leader of the Opposition can table this motion and request it for debate the following day, which he has only done on one occasion this year.

The generally accepted timescale has been that, for an election to be held on October 24th, the last Thursday before October 31st, then a motion must be tabled by tomorrow for consideration on September 3rd, the first day back from the summer recess.

Yet if a vote were to be held, and Johnson’s administration were to lose, and were no alternative Government found during those 14 days, then the incumbent Prime Minister would have the power to delay the election beyond October 31st. The accepted timetable relies on the Crown proclamation and dissolution happening virtually on successive days.  But the exact timing of these would remain in the gift of the incumbent Prime Minister, who could choose to delay.

Therefore the last day for tabling of a vote of no confidence to guarantee a change of Government through an election is today, not September 3rd, and the Leader of the Opposition’s dithering has virtually guaranteed that this cannot be used, unless MPs knew they could form an alternative Government in those 14 days.

Conclusion

If Boris Johnson wants to pursue a No Deal exit, then he will have a fight on his hands with MPs. Whilst the options for MPs are narrowing, with Opposition Days, Business of the House motions ruled out, and votes of no confidence extremely unlikely to work in the short timescale, MPs will turn to new procedural devices to try and change the legal default. Recent attempts over the last few weeks haven’t been very productive, but with the Speaker willing to allow the House to ‘come to a view’, it is very hard to predict whether or not they will be successful.

100 comments for: Chris White: What will the new Prime Minister’s Parliamentary options be on Brexit?

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