The Loophole That Could Allow Boris to Call An Election
The majority of MPs have now successfully scuppered the Prime Minister’s Brexit plans, and thwarted both the no-deal option and an early election. On Wednesday a coalition of opposition MPs and 21 Tory rebels ensured a bill blocking a no-deal passed by 327 votes to 299, which will prevent the UK leaving the EU until January 31st. One amendment passed without a vote as there were no tellers available to count the votes against it. It was proposed by Labour MP Stephen Kinnock to allow MPs to vote on Labour’s proposed changes to former Prime Minister Theresa May’s Withdrawal Agreement back in May.
Although Boris attempted to push for an early election, he fell short of the two-thirds majority required under the 2011 Fixed Term Parliament Act to legislate for one. Corbyn’s argument against an election is that he wants to ensure all legislation preventing no-deal has been approved by the time Parliament comes to vote on calling an election. This means that Boris has lost every single Commons vote on Brexit so far. To add further damage to the Conservatives, the Prime Minister’s brother, Jo Johnson, has also announced he is resigning, leaving the government short of another MP.
Furthermore, the House of Lords agreed to progress a cross-party bill designed to prevent a no-deal Brexit that was proposed by Labour MP Hilary Benn, which will be returned to the lower house on Friday. It also rules out the prospect of filibustering the legislation. The Lords heard that the bill could be voted on again by MPs on Monday and presented for royal assent. A No.10 spokesman told The Guardian Boris would refuse to abide by the Benn bill by the time of the next European Council meeting.
Despite this, the Prime Minister does have one option left that could enable him to call an election. The prerogative power the premier once had to decide upon an early election was outlawed by the Fixed Term Parliament Act. As Dr. Sean Gabb wrote in The Commentator, Boris could use the Civil Contingencies Act 2004 to declare an emergency, and then rule by decree.
The law defines an emergency as anything the authorities may dislike, which in this context could be the Fixed Term Parliament Act. A senior minister of the Crown (the Prime Minister) can then announce an emergency and suspend any law he dislikes. He can do this for a period of thirty days and dissolve Parliament in the traditional way. Opposition MPs may try and stop Boris with an Act of Attainder, but MPs would no sooner reassemble after the prorogation than it would be dissolved.
Another option could be for the Prime Minister to call a vote of no confidence in his own government. This would be seen as the most bizarre choice as it would mean both government and opposition MPs voting against Boris. Under the Fixed Term Parliament Act, there would be a 14-day period for an alternative government to be formed, which could consist of Corbyn and Ken Clarke.
If the Prime Minister wants to ensure there is a general election, he has no choice but to declare an emergency under the Civil Contingencies Act. The Fixed Term Parliament Act has allowed Parliament to prevent him from calling a vote sooner and Boris calling a vote of no confidence in his own government could pave the way for an outcome he hopes to avoid, which is Corbyn as a caretaker prime minister. The Prime Minister was elected by Conservative activists because he was portrayed as the candidate who could deliver Brexit. If he is serious about this campaign pledge, the Civil Contingencies Act is his only saviour now.