In all the reactions to the Times front page about the possibility of Johnson staying on as PM even if Parliament passes a VoNC in him and prefers someone else who can command the House, two absences were notable: (1) no immediate denial by No 10; and (2) no outrage by the official Opposition at the prospect of what would seem to be an appalling breach of normally understood conventions, moreover ones which would normally benefit the opposition.
After all, if the PM has lost confidence it is usually the opposition which benefits. Perhaps this silence by Labour is because they do not believe that Johnson would be so silly. Or perhaps, more alarmingly, it is because they are not too bothered about a Tory government ignoring conventions. After all, if the Tories (who are meant to be conservative after all) can do it, why can’t Labour ignore those conventions they find inconvenient in pursuit of their interpretation of what the People?
Well, the issue may never arise. In the interminable Brexit saga, waiting for a successful VoNC or indeed any effective action by those MPs determined to stop a No Deal exit is a bit like waiting for Godot – lots of agonised, pointless talk, very little action.
But there is one other convention and possibility which ought to be considered more seriously than it has been. When elections are called, governments go into a form of suspended animation – purdah – during which no new or controversial government initiatives should be announced or enacted, particularly not if they could be seen to be advantageous to a particular party. This impacts the governing party of course, far more than others. The government needs to continue running matters and will even have to deal with unexpected events (the Manchester Arena bombing during the 2017 election, for instance). But what it cannot do is anything new, anything which changes the status quo.
And the reason for this is obvious and sensible: the election will determine who governs. The time for new initiatives and irreversible decisions is once that government is elected. The voters should have their say first. After all, they might decide to throw out the old government and demand a radically different direction.
This convention is not set out in any Act of Parliament; it is not law; it is a well-established understanding underpinned by ministerial guidance and established practice. It has moral authority. Its force comes from the fact that to do otherwise would be to second guess the wishes of the voters, to treat their right to take the decision as to who will be the government with contempt.
So let’s imagine that Johnson, whether by choice or as a result of a VoNC, calls for a General Election on a date after 31 October. As it currently stands, on that date, Britain is set to leave the EU without any form of transitional deal. Let’s assume that the departure is a smooth one, that there is no chaos or economic shock so that there is no need for Cobra meetings or for government ministers to put on their yellow jackets and wellies marching round the countryside looking authoritative. Isn’t this change the status quo? It has after all been on the statute book since the Act triggering Article 50 was passed. Why shouldn’t it go ahead as planned?
But hang on: the very strong likelihood is that the election will be happening either in order to get a specific mandate for a No Deal Brexit or because the government has lost a VoNC and no-one else has been able to command a majority. The question of what sort of Brexit there should be or, indeed, whether to Brexit at all will be a very live issue in that election. It is possible that a government could be elected with a specific mandate not to Brexit at all or to get a deal on a different basis to May’s Withdrawal Agreement. A No Deal Brexit may be explicitly rejected by the voters.
To implement it while the electorate is still making up its mind would be to render the election largely pointless. Unlike many other government decisions such an action cannot be reversed.
Once out of the EU, Britain’s ability to revoke Article 50 and remain a member on the same terms as before will have been irrevocably removed, even if this is the express wish of the electorate. Sure – Britain could apply to rejoin but this is a different process and likely to be on different terms. And a decision to remain on existing terms is different to a decision to rejoin on different terms. It is perfectly possible to envisage voters who might be willing to do the former but not the latter.
So if continuing with a No Deal Brexit is not the status quo, what is to be done? The obvious answer is for the government to seek an extension of Article 50 until after the result of the election so all of Britain’s options in relation to EU membership are kept until the people have voted. What would be the problem with this? After all, if a Tory government is returned with a majority then it is free to exit on a No Deal basis, with only a slight delay. If, on the other hand, a government is elected which wants to do something different, then it can do so.
Well, we all know what the problem is. Johnson has promised to leave on 31 October unconditionally. A request for an extension is an act which may well harm the Tories’ electoral prospects among some of the voters. It might be seen as aiding the electoral prospects of other parties. It will be controversial. And it will mean that the EU will find itself inserted directly into the heart of a current member’s election campaign. This is in itself controversial whatever side of the Brexit debate you are on. A decision to refuse an extension would show a certain contempt for the voters, though the EU may not care. More likely, it would feel pressure to grant the extension precisely because of the possibility of a change of a mind. Whatever happens, it will impact the relationship between Britain and the EU in ways which may make it even harder to achieve – eventually – a reasonably harmonious equilibrium.
And yet, despite all these difficulties, surely the balance of risk points to a request for an extension precisely because it preserves the ability of whichever side of the Brexit debate wins to implement the voters’ wishes. An exit during an election closes off options. An extension preserves them.
What an extension does do, though, is highlight the conflict between what is in the voters’ interests – giving them the say – and what is in the Tory party’s interests – avoiding the charge of betrayal and broken promises that will surely be hurled at them by Farage and his followers. A conflict created not over a matter of substance but over a date. It should be easy enough to say that a delay of 2-3 weeks is nothing to get excited about. But Johnson’s real fear will be that even such a delay might be enough to deny him a majority.
It is an exquisite trap and one he has built all by himself. Do or die indeed. How will he resolve the dilemma: by seeking an election well before the end of October, by not having one or by doing what he has solemnly promised not to? You’d have thought that Johnson, of all people, would have realised the folly of making promises you know you cannot keep.