Boris and the Benn Act

What is Boris Johnson going to do about the Benn Act? He’s made apparently contradictory statements that he would comply with the law but will not ask the EU for an extension to the October 31st deadline, as the Act requires. There’s been a lot of discussion about this contradiction and legal commentators seem fairly confident that the Act is watertight and legally binding – but what will happen if he resigns as Prime Minister on the evening of the 19th of October?

From the narrow perspective of preventing a no-deal Brexit on the 31st, Johnson resigning might look like a good thing. But the broader perspective is perhaps less hopeful: he will have ‘died’ politically (as his ‘do or die’ promise requires) but he will be able to claim the mantle of a martyr and, since he will still be party leader, his death might be short-lived.

Sure, Brexit could be delayed – but not by him. So when an election is called, the brexiters’ fury will by-pass him and be directed at the ‘remoaner’ Parliament who thwarted him and drove him out of office. In the meantime, he will become leader of the opposition (a role he will revel in) and will have that platform to campaign from.

That scenario (Brexit delayed and Johnson as opposition leader) assumes the anti-no-deal camp gets it together in a vote of confidence for someone else to become PM before the Hallowe’en deadline has come and gone – which probably shouldn’t be taken for granted. If they don’t, it’s quite likely Brexit won’t be delayed at all.

The Benn Act requires the Prime Minister to ask the EU for an extension ‘no later than 19 October 2019’. If Johnson comes back from the European Council meeting on the 17th/18th without the deal he’s been promising, he will have a choice between making that request, breaking the law or resigning as PM. He would not be breaking the law if (having decided that he ‘cannot in good conscience’ make the request) he resigns just a few hours before the deadline.

The Queen will then most likely ask another minister to take over as PM (or perhaps as caretaker PM until Parliament can put someone else forward). This would probably be Dominic Raab who, as First Secretary of State, is the most senior cabinet minister. Even if he is asked immediately, on the evening of the 19th, he couldn’t be expected to accept without thinking about it, for a few hours at least (it is, after all, a heavy responsibility and, unusually, it would mean the roles of PM and party leader would not be combined). So he will almost certainly not take on the PM’s responsibilities until the next day. Since the deadline specified in the Benn Act will then have passed, he will be under no obligation to make the request for an extension.

Will Parliament have a successful confidence vote in time to install a new Prime Minister who would make the request? Maybe – but, given that current efforts aren’t even aimed at finding someone acceptable to a majority of the whole House, I don’t have high hopes of it. Instead, as far as I can tell, opposition party leaders are trying to stitch up a back-room deal that will command near universal support among the anti-no-deal camp.

I don’t think it’ll work. At best, it will produce a fragile coalition that’ll last just long enough to secure an extension, and will be quickly followed by a general election which, if current polls are to be believed, might well bring Johnson back with a majority.

At worst, there won’t be any agreement on a new leader and nobody will make the request for an extension. Instead, we’ll go straight to an election in November, with Brexit either having happened or, perhaps more likely, having been put on hold by the courts pending legal challenges*.

There is, however, a time-honoured process that could allow a new prime minister to emerge who might provide stable government until a satisfactory path is found through the Brexit minefield: a competitive vote, in which all MPs can indicate (in a secret ballot) which candidates they would be willing to support.

Rightly or wrongly, there seems little chance of Jeremy Corbyn commanding the confidence of a majority of the whole House, but others might: perhaps one of those whose names have already been floated (Ken Clarke or Harriet Harman maybe) or perhaps someone like David Gauke, for example, who might not even be considered if it is only opposition parties putting names forward.

Whatever happens over the next month, as long as the country remains deeply divided it seems unlikely any good will come from a general election. What we need now is a Prime Minister who is not bound by idealogical purity or personal ambition, and has the flexibility to look for, and recognise, a course of action that might bring the country together.

* In my view, legal challenges to Brexit are almost certain to emerge once a decision to leave is finalised (with or without a deal), because the decision clearly hasn’t been taken with the care and attention our constitution requires (not least because the government never explored whether other, less drastic reforms might have satisfied the public’s hunger for change).

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