It hardly seems possible, but the furore around Britain’s departure from the EU has reached a new intensity this week.
We’ve heard accusations of “constitutional outrage” from the House of Commons Speaker, and the government is currently fighting two court battles over its controversial decision to prorogue parliament.
With just two months to go before we’re due to leave, are there any routes left to prevent a no-deal Brexit?
The courts could overturn the suspension of parliament
The government’s decision to suspend parliament for up to 34 days has left many opposition MPs fearful that they won’t have time to pass legislation to prevent a no-deal Brexit.
At the time of writing, there are two court battles underway: Remain campaigners including Gina Miller and former Prime Minister John Major are seeking a judicial review of the suspension of parliament, and a victim’s rights campaigner in Northern Ireland is asking for an injunction against the move on the grounds that it breaks the Good Friday agreement.
This morning, the Scottish Court of Session rejected a separate attempt to halt the suspension, but decided to hold a full hearing on the issue on Tuesday.
Whatever the courts decide in the remaining cases, the decision is likely to be appealed and the fight could well continue all the way to the UK Supreme Court.
MPs could overturn prorogation
As FactCheck reported on Wednesday, MPs can’t vote against the prorogation order itself: unlike “recess” which MPs do have power to approve, prorogation is in the government’s gift.
But as Dr Asif Hameed, Lecturer in Law at the University of Southampton, told FactCheck, MPs might just be able to pass a one-line act of parliament in the first week of September to overturn the planned suspension.
And Philip Norton, Professor of Government at the University of Hull (who also sits in the Lords as a Conservative peer) suggested that another possibility might even be to amend the Prorogation Act itself — the Victorian legislation that sets the rules by which the government can suspend parliament.
The various legislative routes to blocking prorogation would require opposition MPs to seize control of the parliamentary timetable — which is usually the preserve of the government. As Dr Hameed told us, that would be “difficult, and will require support from the Commons Speaker [John Bercow]”.
If MPs were able to overturn the prorogation, they would have extra time to pass legislation to prevent no-deal Brexit — which would most likely involve forcing the government to ask the EU for an extension to Article 50.
But there’s no guarantee that the EU would agree to the request.
The government could get a deal with the EU and pass it through parliament
Officially, this is Downing Street’s preferred course of action. Yesterday, Boris Johnson announced he would “step up the tempo” of talks with Brussels, and that both sides had agreed to meet twice a week to find a way through the impasse.
It’s not clear exactly what would have to change in order to get a Brexit deal through parliament, but Mr Johnson himself seems to understand that the backstop — which he calls “anti-democratic” — has been a major sticking point for his colleagues.
The EU is adamant that any deal must involve a backstop — an insurance policy to prevent a hard border between the UK and Ireland if we fail to strike a long-term trade agreement with Brussels.
Thus far, the line from Brussels has been that the withdrawal agreement, including the backstop, is not up for renegotiation. If that turns out to be true, Mr Johnson will have a hard time securing a deal that is palatable to his fellow MPs.
A vote of no confidence could put anti-no deal MPs in charge
Under the Fixed Term Parliaments Act — which the Conservatives promised to abolish at the last election — if the government loses a vote of no confidence, MPs would have 14 days to work out if any party or group of parties can club together enough support to control the Commons.
Of course, pro-Brexit Conservatives might be able to regroup and regain control. But if Labour, the SNP, the Lib Dems, Plaid Cymru and the Greens are able to convince a handful of Conservative rebels to join them, the rainbow coalition of anti-no deal MPs could just squeak through.
But achieving this outcome would require opposition MPs to get a whole flock of ducks in a row.
Who would actually head up the group? Just a few weeks ago, Jeremy Corbyn proposed himself as a “caretaker” Prime Minister in such a scenario, but Lib Dem leader Jo Swinson said such a move would “jeopardise the chances of a no confidence vote gaining enough support to pass in the first place.” She mooted Harriet Harman and Ken Clarke as alternatives — although the latter has today said he would be prepared to back the Labour leader.
And there’s a further complication: Downing Street has reportedly said that even if Mr Johnson loses a vote of no confidence, he would refuse to resign.
Dr Catherine Haddon, a senior fellow at the Institute for Government think tank, has said that “In terms of a strict reading of the legislation, Boris Johnson is not required to resign.” The legislation, she says “is completely silent on all of this,” and “the onus is on the incumbent prime minister — they get to choose whether they resign.”
However, she also points out that the risk of “dragging the Queen into politics” in this scenario “would put huge pressure on the incumbent prime minister to resign. We would have a clash between a technical reading of the legislation and constitutional norms.”
A General Election could put anti-no deal MPs in charge
There are two main routes to an early election: either the government calls one, or MPs force them into it.
If the Prime Minister wants to call a General Election himself, he would need two thirds of MPs to back him in a parliamentary vote. Given Labour’s stated position that they would seek a General Election, this would probably be easy to do.
But calling an election is always a gamble for any Prime Minister, and if it doesn’t pay off, could see Mr Johnson ejected from Downing Street. Any majority or coalition government that did not involve the Conservatives, the Brexit party or the DUP would probably seek to block no-deal.
Whether they succeeded would largely depend on when the Prime Minister scheduled the ballot: if Election day was in late October, it’s hard to see how anti no-deal MPs could get their legislation over the line in time.
Alternatively, if opposition MPs defeat the government in a vote of no confidence and no alternative government emerges after 14 days, Britain could head to the polls once again.
But the timing’s a bit tight for the anti-no dealers.
If MPs defeat the government in a confidence vote on the first day back (3 September), they’d have to wait 14 days until 17 September to find out whether anyone could form a government (assuming of course, that Boris Johnson had resigned).
If an election is on the cards after that, Electoral Commission rules say there should be 25 working days between the dissolution of parliament and polling day, which means the earliest an election could be held is — we estimate — 22 October. On the basis of this back-of-the-envelope calculation, we think that would give MPs just eight days before the Brexit deadline to act.
And that’s assuming that those opposed to no deal win enough seats in parliament to make a difference, which itself is far from certain.
The Electoral Calculus website, which uses data from a range of polls to predict how an election might work out, suggests a Conservative majority is the most likely outcome of a General Election, at a 31 per cent probability. In second place is a Labour majority government, trailing at 16 per cent.