UK Parliament is unlikely to stop no-deal Brexit

Analysis

The current default position is that by the EU Notification of Withdrawal Act of 2017, as amended, the United Kingdom is to leave the EU on October 31. Any extension to this date must be agreed unanimously by all the member states.

In January, Parliament passed the Brady amendment, requiring changes to the Irish backstop provision, such as a time limit or the opportunity for the United Kingdom to exit unilaterally from it.

With such an amendment, the WA could perhaps be approved in Parliament. However, agreement with the EU on alterations to the backstop has not been achieved so far. The current position, therefore, is that the United Kingdom will leave the EU without a deal.

Parliamentary obstacles

The government's policy is to seek an improved WA with the EU. It argues that the best chance of achieving this is by making clear to the EU that the United Kingdom will leave on October 31, whether or not a deal is achieved.

It believes, however, that Parliament would weaken its negotiating position if it requires an extension to the Brexit date (see UNITED KINGDOM: Election prospects may shape Brexit - August 30, 2019).

The prime minister has therefore advised an unusually long prorogation of Parliament for five weeks, giving his opponents less time to frustrate him. The current session will end on September 9. The new session will begin on October 14 with a Queen's Speech laying out the government's legislative programme.

MPs, however, are seeking to ensure that the United Kingdom does not leave the EU without a deal, by passing legislation, called the European Union (Withdrawal) (No. 6) Bill 2019, requiring the government to seek a three-month extension to the Brexit date.

MPs and peers have only a week to conclude the whole legislative process before Parliament is prorogued. House of Commons debates can be programmed and time-limited. This, however, cannot be done in the upper House of Lords, which is largely self-regulating and approves legislation.

In the Lords, Brexit peers might seek to filibuster until Parliament is prorogued, but this is unlikely as Remainers hold a large majority, and will not want to frustrate the wishes of Parliament.

Government's options

If the legislation is passed, the government will seek a general election (see UNITED KINGDOM: New government has election in mind - July 25, 2019), as ignoring legislation would amount to breaking the law. That requires two-thirds majority approval by Parliament under the Fixed Term Parliament Act (FTPA). It would be difficult for the opposition Labour Party not to support it, since its leader, Jeremy Corbyn, has called on many occasions for an election.

Despite this, Labour MPs have indicated that the party might not support an election before October 31, or that, if they did, it would only be under certain conditions which the government might be unwilling to accept, such as an election only after legislation to block no-deal on October 31 becomes law.

In any case, in order for Johnson to get support from Labour, it is likely that he will have to make a commitment to Corbyn.

Another method of calling an election would be as a result of a successful vote of no confidence in the government. There must then be, within 14 days, either an alternative government formed from the existing Parliament, or, as would be more likely, a general election if no such alternative government can be formed. However, with a five-week prorogation commencing on September 9, a vote of no-confidence in the government is looking increasingly unlikely.

In the circumstances in which the Labour Party refused to vote for an election, the government still has options allowing it to call one.

Vote of no confidence in itself

It could hold a no confidence vote in itself, which has been done in Germany in analogous circumstances, and only requires a simple majority.

The assumption would be that no one else could form a government that could command the confidence of Parliament. Conservatives would not support Corbyn, and the pro-Corbyn supporters would not support anyone else. So there would be an election.

Resignation

Alternatively, the prime minister could resign as head of government, though not as leader of the Conservative Party. The Queen would then call on Corbyn to form a government, but he would probably be subjected to a successful no-confidence vote and an election would follow.

While these two strategies would probably break the deadlock, they are risky and the government would much prefer to trigger an election by winning a two-thirds majority under the FTPA.

Outlook

The outcome of an election would be highly uncertain in what is now a multi-party system -- four parties in England and five in Scotland and Wales -- in which the relationship between votes and seats is uncertain. The outcome could depend upon whether the pro- and anti-Brexit parties succeed in establishing electoral pacts to avoid splitting the vote, while the timing of the election will be critical.

Moreover, if the Conservatives win, solutions to the Irish backstop, for example a time limit or the possibility of London unilaterally ending it, are probably the only way of reaching a Brexit deal. Otherwise, the United Kingdom will leave the EU without a deal, on October 31 or at a later date (see EU-UK: No-deal trading will be disruptive - July 16, 2019).