An election is the only way to get a ‘no deal’ Brexit

Leave MPS will need a new prime minister and a majority to convince Parliament on this issue

The two sides are squaring up. Armed with their lawyerly briefs, sharp haircuts and dusty constitutional instruments, one faction is ready. The other side, a ragtag bunch in waistcoats and round glasses, are brandishing a sovereign Act of Parliament, crown prerogative powers and the passions of the people. Next week, they will go to war.

The first group are the hard-line Remainers. This week, led by Dominic Grieve, they passed a motion giving Parliament the right to tell the Government what it should do. Their first instruction, as soon as Theresa May’s deal goes down, is likely to be that she request an extension to Article 50 to give MPS more time to thrash out a cross-party compromise.

Be our guest, say the Brexiteers on the other side. Parliament can pass motions until it is blue in the face, they argue, and it still doesn’t gain the legal right to negotiate treaties. That right belongs solely to Her Majesty’s Government and, thanks to legislation already passed, Brexit will happen on March 29 unless or until the executive changes its mind. If that means leaving without a deal, so be it.

This is a proper constitutional war. Unfortunately for the Brexiteers, however, the signs for them are not good.

For one thing, their hold on the Prime Minister is weak. For two years she has been paying lip service to their vision of Brexit while negotiating it away. This was obvious in December, but the Brexiteers ignored the red flags. It’s no use them fighting for HMG’S right to leave with no deal if the government itself isn’t onside.

Their first order of business, therefore, must be to change leader. If Mrs May doesn’t resign when her deal fails, expect the 48-letter threshold to be passed quickly. The Brexiteers must then either win a vote of no confidence among Tory MPS or win enough support that Mrs May feels she has to go. This is high-risk. If they fail, she is safe from challenge for a whole year. To win over ditherers, she could promise to go before the year is out, but after seeing through this stage of Brexit.

Assuming the Brexiteers manage to oust Mrs May, the battle then heats up. In theory, a leadership contest takes two months, but some MPS think it can be condensed into three weeks. Leadership contenders will walk a tricky tightrope between winning enough support in the first stage, in which predominantly Remainer MPS vote, and winning the second stage, when the passionately pro-brexit party membership have their say. The argument will be over whether to pursue a no-deal/wto Brexit if the EU won’t cooperate, or whether to aim closer to Norway or Mrs May’s deal.

Let’s assume that the tough, probrexit candidate wins. This new leader will still face enormous obstacles.

Even as a Conservative leadership battle takes place, the Remain majority in Parliament will be busy. Three weeks after losing a vote on the deal, the prime minister must lay out a plan of action and let Parliament vote on it. If Mrs May is still in office, waiting for her replacement to be chosen, this will fall to her.

The pro-brexit leader would then arrive at No 10 declaring a dramatic shift in strategy, demanding Brussels drop the hated backstop and, if it doesn’t, moving assertively towards a no deal exit, with a short transition if it can be agreed.

There is just one problem: Parliament. In theory, the Brexiteers are right. A committed, pro-brexit prime minister can push ahead, and Parliament cannot reverse the existing laws. But this country has undergone 300 years of constitutional evolution aimed at ensuring that a government cannot simply ignore Parliament.

MPS will dig deep into the constitution to unearth new instruments. There will be more humble addresses, contempt motions and threats to lock ministers in the Tower. They will refuse to pass any of the urgent legislation needed to manage a no deal. They could try to annul any of the 60 statutory instruments that the Financial Conduct Authority says are essential to manage the financial aspects. They can refuse to pass bills on immigration or trade, leaving us with no laws on either.

The pro-brexit prime minister would have to play chicken not just with the EU, but with our own Parliament, to terrify MPS into relenting. There is barely enough time to plan for a no deal as it is, without this chaos.

At this point, if not before, the Conservative Party would split. It might not be anywhere close to a half-half split, but it doesn’t need to be. A rump of strongly pro-remain MPS are already discussing breaking away to prevent a no deal if necessary. They could then join with Opposition parties to collapse the Government in a parliamentary vote of no confidence and replace it with their own crossparty coalition, either in favour of an ultra-soft, Norway-type deal or a second referendum. The DUP could well decide to support a Norway-style Brexit, since it keeps the UK closer together. If this fails, it’s general election time.

All of this goes to show that the only viable strategy open to hard-line Brexiteers is to pre-empt this battle, install a new prime minister (if they can) and charge enthusiastically into a fresh general election to seek a mandate for much tougher EU negotiations and a no-deal Brexit. To Brexit campaigners, this might sound horribly unfair. They won the referendum, after all. But if ever that entailed a mandate for no deal, Mrs May lost the power to execute it when she lost her majority last year.

The hard fact is that a no-deal Brexit is a radical policy programme and it cannot be done without explicit consent. Jacob Rees-mogg himself has said that, mismanaged, it would squander the Tories’ reputation for economic competence on the same scale as Black Wednesday in 1992. The Cabinet is already discussing how to guarantee medical supplies and avoid food shortages. Such problems would only be temporary, but it requires honesty and a sense of national purpose to get through them without widespread public fury. The idea that the Tory party can embark upon such an endeavour without even the support of our own Parliament is ridiculous.

The Conservatives are ahead in the polls, the economy is growing, wages are rising and jobs are abundant. The question that entrenched Remainers and Brexiteers need to ask themselves is whether it is worth putting all this at risk, potentially ending up with a Jeremy Corbyn-led government, to avoid compromise. If it is, by all means, go right ahead and charge towards a general election. Just don’t tell Brenda from Bristol.

The fact is that a no-deal Brexit is a radical policy programme and it can’t be done without explicit consent FOLLOW Juliet Samuel on Twitter @Citysamuel; READ MORE at telegraph. co.uk/opinion