Should the Brexiteers try and form an electoral pact?

In the wake of the Lib Dems’ victory in last week’s Brecon and Radnorshire by-election, there’s been a lot of talk on the Remain side about the need for an electoral pact between the anti-Brexit parties. After all, the Lib Dem candidate only beat the Conservative incumbent by a margin of 1,425 votes, so wouldn’t have won if the Greens and Plaid Cymru hadn’t agreed to stand down.

On Saturday, the independent MP Heidi Allen wrote a piece for the Guardian, promoting her ‘Unite to Remain’ initiative, which aims to build a cross-party ‘Remain Alliance’ across the United Kingdom, and the Observer ran a story on its front page yesterday saying the People’s Vote campaign has drawn up a list of 100 marginals in which it will advise Remain supporters which anti-Brexit candidate to vote for, regardless of which party they belong to.

In light of these initiatives, some people on my side of the aisle, such as Brexit Party chairman Richard Tice, have argued for an electoral pact between the Conservatives and the Brexit Party. I’ve written before about why I think a formal pact along those lines is unlikely – and it’s been ruled out by both Nigel Farage and Boris Johnson – but that doesn’t mean an informal, grass-roots alliance isn’t worth trying. Something like what the People’s Vote campaign has in mind, except advising Brexit supporters which candidate to vote for in key marginals to secure our exit from the European Union, regardless of whether they belong to the Conservative Party, the Brexit Party or even the Labour Party.

But before pulling out all the stops to try and get this campaign off the ground, it’s worth pausing to ask how likely it is that there will be a general election before we’ve left the EU. The pro-Remain figures advocating these electoral alliances take this for granted, but I’m not so sure. Let’s examine a few different scenarios.

Suppose Boris Johnson loses a vote of no confidence shortly after Parliament resumes in September. Will that trigger a General Election before October 31^st? According to the Fixed Term Parliaments Act, that would start the clock on a 14-day period after which an election would be triggered unless a motion of confidence has been passed in Her Majesty’s Government. In that scenario, there would be no legal obligation for Boris Johnson to resign as Prime Minister. Rather he could simply remain in Downing Street, running down the clock and, after losing the second vote, fix the date of the next election and make sure it fell after October 31^st.

At least, that’s what Dominic Cummings believes, according to a story in yesterday’s Sunday Telegraph. Boris’s most senior Downing Street aide reportedly said of EU leaders like Emmanuel Macron who believe Parliament could still prevent a no-deal Brexit: ‘They don’t realise that if there is a no-confidence vote in September or October, we’ll call an election for after the 31^st and leave anyway.’

Dominic Grieve, the former Conservative attorney general, disputed this in a follow-up story on Sunday. ‘There are a number of things which the House of Commons can do, including bringing down the government and setting up a new government in its place,’ he told the BBC. But Catherine Haddon of the Institute for Government said in the same story that, from a legal point of view, Boris would be under no obligation to resign after losing a vote of no confidence.

The constitutional convention is that if a Prime Minister loses a confidence vote, he or she should resign and, if that happens, there may be calls for Boris to step aside and give the Leader of the Opposition – or someone else – a chance to try and cobble together a government that could win a confidence vote. But why would he? If Boris fell on his sword, and Corbyn wanted to chance his arm or was prepared to support the efforts of someone else to form a government of national unity, the Queen would have to appoint them as Prime Minister. Even if they then lost the subsequent confidence vote, they could fix the date of the ensuing election so it fell before October 31^st, provided that it was still more than 25 days away, or they could ask the EU for an extension so the Brexit deadline fell after the election, whenever that is. Knowing that, Boris would almost certainly take advantage of the provisions of the FTPA to remain in Downing Street and run down the clock. Admittedly, his decision to do that might be challenged in court. But it’s hard to see how such a challenge could be heard and a ruling handed down in the time available.

Another constitutional convention that Boris would be accused of breaching would the one that says no major policy decisions can be taken by a caretaker government during a general election campaign that would be binding on future governments – and leaving the EU by default on October 31^st, a few days before the poll, would fall into that category. The Cabinet Secretary Mark Sedwill has said he thinks this convention would prevent the UK leaving in the middle of an election campaign, but Geoffrey Cox disagrees on the grounds that leaving by default on Halloween would be a result of Parliament’s decision to trigger Article 50 taken more than two years ago and not because Boris had neglected to beg the EU for an extension. In effect, Gina Millar, having forced a Parliamentary vote before Article 50 could be invoked, would be hoist on her own petard. No doubt that would prompt a legal challenge too – probably from Miller – but, again, it’s hard to see that being resolved during the allotted time.

Could the EU unilaterally decide to extend the deadline until after the poll? Nope. Any extension requires the unanimous consent of the European Council, a group that comprises the heads of all 28 EU member states, as well as the President of the European Council and the President of the European Commission. The other 27 could propose an extension – and probably would in that scenario. But Boris, even if he’s merely the head of a caretaker government, could veto it.

What about Parliament ruling out no deal? Not obvious how that could happen, given that there are no bills wending their way through Parliament, such as the Withdrawal Agreement, that could be amended to rule out no deal. And motions passed during Emergency Debates aren’t legally binding.

Revoking Article 50? That would require the Remainers to seize control of the order paper, and it’s not clear how they could do that, even with Bercow’s collusion. In any case, I doubt a majority of MPs would vote for it. But even if those unlikely events came to pass, Boris could simply refuse to play ball. A revocation bill would require the Queen’s assent before it became law and her ministers could advise her to withhold it. That would provoke a constitutional crisis and there would be a legal challenge. But, as with the others, it would be unlikely to be resolved before Halloween.

If you’re a do-or-die Brexiteer, time is on your side.

There’s one other scenario I can think of – and I’m sure there are several I haven’t thought of – which is that Boris and his advisors might calculate that it’s in the Conservatives’ interest for an election to take place before we’ve left.  True, the Tories would lose more votes to the Brexit Party in that situation than they would if the poll was held after October 31st. But Boris might reason that Labour would pay a heavier price, bleeding votes to an array of pro-Remain parties. He might worry that if the election takes place after we’ve left, those who’d voted Leave in Labour’s heartlands in 2016 wouldn’t reward Boris for having won the Brexit war, but would revert to their tribal loyalties instead. He would fulfil his Churchillian destiny alright, but not in the way he’d anticipated, replicating Churchill’s defenestration in 1945.

Another reason Boris might hold an election before we’ve left is that he and his party wouldn’t then have to contend with the political fallout of having railroaded Brexit through ‘by any means necessary’, to quote Dominic Cummings. It’s possible that being seen by some as having acted unconstitutionally – although that would be hotly disputed by the government – might damage the Conservatives’ chances in the post-Brexit election.

But even if Boris and his advisors do calculate that there would be an electoral cost to this ‘kamikaze’ approach, it’s hard to imagine them sacrificing a guaranteed exit on October 31^st to avoid it. Everything I know about Boris and those closest to him, like Cummings, tells me they would hold their nerve.

So in conclusion, I think the chances of there being a General Election before we’ve left are fairly remote. But having said that, because it cannot be ruled out, the pro-Brexit forces should probably have an embryonic tactical voting alliance plan in place, ready to action if necessary.