Boris Johnson could be stopped from breaking the law – but all the options are fraught with pitfalls

Boris Johnson dropped heavy hints in his interview with the BBC’s Andrew Marr on Sunday that he would find some way to wriggle out of the new law requiring him to ask the EU to delay Brexit. Not surprisingly, opposition leaders who met this afternoon in Jeremy Corbyn’s office want to stop him. There are various options, but not all are good.

Vote of no confidence flaw

The SNP had been pushing the idea of vote of no confidence in the prime minister. The rest of the “rebel alliance”, though, has rejected this for now, because they can’t yet agree on who should replace him.

But there’s another problem with the scheme. Johnson might refuse to quit even if he lost the vote. There is no law requiring a prime minister who loses a vote of no confidence to

resign. There is merely a convention that they should – and that only applies if it is clear that there’s somebody else who can command the confidence of the House of Commons. (See Cabinet Manual, section 2.19)

If we were dealing with a normal government, this wouldn’t be a problem. The prime minister would obey convention and quit. But is anybody really sure that Johnson, who has already tried unlawfully to suspend parliament, would play by the rules?

The Fixed Term Parliaments Act says that, if there’s a vote of no confidence in a prime minister, there has to be an early election. This can only be avoided if there is a vote of confidence in “Her Majesty’s government” within 14 days. (See section 2.5).

If Johnson refused to quit, he would still be running Her Majesty’s government and there would be no way to stop an election. By the time it had been held, we would have crashed out of the EU with no deal – the precise outcome that the opposition wants to avoid.

Queen damned if she fired him, damned if she didn’t

One way of preventing such a disastrous chain of events would be for the Queen to use her reserve power to remove prime ministers. (See Cabinet Manual, section 2.9). She would have every justification to do so – and arguably a duty to do so. But it would be a massively controversial decision that might shake the monarchy to its foundations.

The last time a monarch fired a prime minister was when William IV removed Lord Melbourne, the Whig, in 1834 because the government was too radical for his taste. He installed Robert Peel, the Conservative, instead. But Peel failed to win an election a few months later and William IV ended up reappointing Melbourne.

It’s so easy to see a rerun of this scenario. The Queen fires Johnson. An unstable government collapses soon after. Johnson, whose Tories are already comfortably ahead of Labour in the opinion polls, then wins an election and storms back into Downing Street.

Can we rely on a 93-year-old monarch facing down a brazen prime minister who is willing to break the rules? Even if she did, our constitutional crisis would become vastly more toxic. It would be better for her not to be put in such an intolerable position in the first place.

Humble address

A partial solution to this problem would be to remove Johnson as prime minister without triggering a vote of no confidence. Helen Mountfield QC wrote in a legal opinion last week that MPs could indicate who they want to take over by passing a humble address. The Queen wouldn’t therefore have to take a risk that she might fire Johnson and find nobody else could command a majority in the Commons.

This proposal does avoid the risk that we could crash out of the EU before a snap election was held. But it still doesn’t remove the Queen from the firing line. It therefore probably wouldn’t be a wise course of action.

If MPs were determined to kick Johnson out, a better option would be to tighten up the Fixed Term Parliaments Act to make clear that a prime minister must resign if they lose the confidence of the Commons and somebody else can win it. Even if they have decided not to remove him for now, it might be useful to useful to change the law so they can safely launch a no-confidence vote at a later stage.

Don’t let Johnson become a Brexit martyr

If the rebel alliance decides to keep Johnson in Downing Street, what options does it have to ensure he obeys the law? In particular, what can it do if he is prepared to go to prison to avoid asking for a delay to Brexit, hoping to capitalise on his reputation as a “Brexit martyr” in a subsequent election?

Well, hoping that the Queen would fire him would again be an option. After all, she couldn’t have her prime minister showing contempt for her courts. But again, it would be better if she was never faced with such a dilemma.

An alternative would be to rely on the courts. They could order somebody else to ask the EU for extra time on Johnson’s behalf. Section 39 of the Senior Courts Act allows the High Court to nominate somebody else to execute a document if the person who is supposed to refuses to comply. There is a similar power in the Scottish courts, which will start hearing a case on this topic on Friday.

Tighten up the ‘Benn Act’

These powers have never been tested in such extraordinary circumstances. One anxiety is that

Johnson might find some way of running down the clock. After all, the “Benn Act” only requires him to ask for extra time if he hasn’t persuaded the Commons to back a deal by 19 October. That is quite close to 31 October.

The Lib Dems wanted to bring forward the deadline to minimise this risk. The snag is that this could have played into Johnson’s hands. He is already outrageously whipping up emotions by incorrectly describing the “Benn Act” as a “surrender act”. He says he is hoping to do a deal at the European Council on 17-18 October. If he was forced to ask for extra time before then, he would say the rebel alliance had sabotaged him.

But there is another option if the opposition is worried about running out of time. They could tighten up the Benn Act to instruct somebody else to ask the EU to delay Brexit if Johnson refuses. That would certainly be preferable than relying on the Queen to fire a delinquent prime minister.