Boris Johnson became Prime Minister with one hundred days to Brexit day. Having served 50 days in the top job, if Boris pauses for some half-time oranges, he may reflect that it has been a much bumpier ride than he had hoped.
Johnson pledged three things in the Conservative leadership contest: to deliver Brexit by the 31st October, with a deal or without one; to avoid a General Election until Brexit was done; and to keep Jeremy Corbyn out of power. Fifty days in, Britain is unlikely to leave on the 31st October, a pre-Brexit General Election is probable, and the Prime Minister may now even decide his best option is to resign and hand over power to Jeremy Corbyn, at least temporarily, in order to avoid his new legal obligation to delay Brexit by asking the EU for an extension.
Jeremy Hunt – remember him? – may think his leadership contest critique of the Johnson plan has been proved right, but Downing Street regards the setbacks as temporary flesh wounds, believing the voters will be onside by a landslide once they get to have their say. It is fanciful to suggest this has all been part of some genius master-plan. Indeed, the Prime Minister is in a hole because he and his team made three major miscalculations over the last fortnight.
Proroguing parliament gave the forces against No Deal a cohesion they had been missing, even before landing the government in hot water in the courts, and maybe the Palace too.
Number 10 expressed confidence that its backbench critics would find neither the legal means nor the parliamentary numbers to block no deal if told it would end their careers. The threat backfired – so the government sacrificed its majority with the purge of 21 colleagues.
Then the escape hatch failed to open – Jeremy Corbyn’s unanticipated decision to refuse an October General Election until an extension was secured meant the the plan to bound free of these Westminster skirmishes, anticipating a landslide in the country, fall apart.
So Boris Johnson is hunting for a way out – leaving the rest of us playing Downing Street Cluedo for the next month to work out what he might do. Can he avoid the law, sabotage it or find a loophole? Could he just refuse to obey it? If he has to extend Article 50 after all, would he be better off resigning? Which card might the Prime Minister play?
Plan A was to escape the trap – by holding an election before hitting the deadline to extend. That has tried – twice – and failed. There is now neither the time nor the votes.
Plan B is delay – by questioning the legality of the Act. The Act looks watertight, but it does not force the government to do anything until October 19th. So the government can avoid saying what it will do all the way through the party conference and the EU summit. The Prime Minister told the Cabinet that he won’t be asking for an extension when he goes to Brussels for the EU summit on the 17th or 18th of October – without saying what he would then do on the 19th – when the law applies.
Plan C would be to sabotage the Bill. Could the Prime Minister request an extension, but send a second letter cancelling his request. This has the disadvantage of being an obvious breach of the Act, as former Supreme Court Justice Lord Sumption points out. Sending a second letter is probably fine – as long as it does not work. The government is mooting the inclusion of a political narrative – setting out how the extension was imposed on it – though the EU governments will have read the newspapers already. There is nothing to prevent this: the Prime Minister could include a copy of his conference speech and the rules of the Eton Wall Game should he so choose, but none of that would prevent the formal request being accepted. Every wheeze centred on sabotaging the letter tends to overlook what the Bill requires: it does not only compel the Prime Minister to write his letter, but also to accept any counter-proposal made by the EU Council, within two days, as long as Parliament votes for it.
Try Plan D: Comply – but finding a way to do so that does not involve delaying Brexit. The good news for Boris Johnson is that the law provides at least three ways to do that. The bad news is they require other people to act in ways that seem unlikely. Winning a Parliamentary vote for No Deal is an entirely legal way out – but Johnson would not be in this hole if he had the votes to do that. If the EU offers a longer extension, he will ask the Commons to oppose it, but more for the political theatre of animating what he is calling their “surrender” than with any hope of victory.
The only route left to leaving without a deal on the 31st October is to persuade the EU to refuse an extension. That would not be legal if political persuasion descended into threats to wreck EU business, but the EU could decide another delay was pointless. The idea of Boris persuading President Macron of France or Viktor Orban of Hungary to choose No Deal will be popular on the internet – but without any plausible theory as to why the EU27 would split, and ditch Ireland, in this way. (This would deliver no deal – unless parliament, at the last gap, sacks the government for one prepared to revoke Article 50 altogether).
The more realistic way to comply, without extending, is to propose a deal – and get the Commons to back it. Negotiating a deal does remain the government’s official position. A negotiable deal would be a mildly disguised version of Theresa May’s Withdrawal Agreement – but if Boris Johnson can find 30 MPs who did not vote for it last time, without losing any who did, he may not have to extend or resign after all. This is how the UK could leave on October 31st– or within a few weeks – ahead of a General Election. Without a deal, the dilemma remains.
And so Plan E: what if Boris Johnson just refused to comply? Nobody can be sure exactly how a refusal would play out. The Lord Chancellor would certainly resign – and probably the Attorney-General too. The civil service may be unable to support the government. Fantasies of the Prime Minister being taken to the cells and put on trial could easily be overtaken by being dismissed by the House of Commons – especially if opponents prefer legal sanctions to political ones. So a refusal to comply would be a challenge to his opponents to sack him in parliament. They almost certainly would. If a refusal leads to an enforced resignation, maybe the Prime Minister will choose to resign first.
Resigning – or getting sacked – does not stop the extension, but it does stop Boris Johnson being the one to ask for it. He could therefore rescue his planned election campaign. But remember that nobody knows how long the extension of Article 50 might be. Seeking a majority to leave – “do or die” – on the 31st January would be one thing. It might be harder to dust off the abortive October campaign plans if the extension is a year or two long.
The final option is to extend Article 50 – though the Prime Minister has said he would rather be dead in a ditch.
So though he may keep his cards close to his chest for another month, by October 19th the Prime Minister is likely to face the following, unenviable “Boris trilemma”:
Does he change his mind about the merits of Theresa May’s Withdrawal Agreement, backing a deal with those modest negotiable reforms he is able to secure?
Does he propose an extension to Article 50 – having said he would never do so?
Or does he resign as Prime Minister – perhaps letting Jeremy Corbyn into Downing Street before they fight a general election?
Whichever he chooses, it is difficult to see how the Prime Minister could avoid making one of the biggest u-turns in political history before he gets to contest a General Election as party leader. The turbulence of Boris Johnson’s first 50 days may be nothing compared to the October storm to come before 100 days are up. If he has another card up his sleeve, he will need to find it pretty soon.
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