Johnson could still force prorogation for a second time

Irrespective of individual Brexit persuasions, we can all agree the UK is teetering on the edge of a constitutional crisis. It’s crunch time. Again. And, once more, Westminster, Whitehall and the courts finds themselves front and centre.

The last fortnight has ripped up conventional wisdom. From the Government’s controversial decision to close down Parliament, to further backbench legislation compelling action against the will of the executive, laws and procedures are being stretched to their limit.

Whatever happens next – and something has to – the one thing we

can be certain of is further surprises. The variables are narrowing, despite No10’s best efforts to keep them alive.

But beyond Boris Johnson seeking an extension to Article 50, as he would be obligated to by law, if Parliament does not approve a deal or no deal before Oct 19, the unexpected could happen.

The Northern Ireland (Executive Formation) Act 2019 – which principally deals with the lack of decision making in the Northern Ireland Assembly – was amended in July with the purpose of ensuring any prorogation could not endure, even though it was deemed unlikely at the time. It does this by mandating set reporting requirements, during which time Parliament must be sitting. The first was fulfilled on Monday. The next is due “on or before” Oct 9 and the Government must move motions five days later – the same day Parliament returns for the Queen’s speech.

The reporting requirement then falls on or before every 14 calendar days thereafter, each report followed by further motions within five days. However, there is a loophole. It would be possible (depending on the Supreme Court’s judgment) for Parliament to be prorogued again: the Government could publish the next set of reports on Oct 14 and move the motions in short order – enabling a further prorogation until at least Nov 6.

Should the Prime Minister decide to flout the law and resist the obligation to seek an extension, Parliament would be powerless without further – unprecedented – interventions from the Speaker. Recall is at the behest of ministers and the courts would have to interfere, by which time it’s possible Brexit would have happened.

In reality, the idea that the Prime Minister would break the law is for the birds. Downing Street briefs when it has solutions, and the fact it hasn’t said anything of substance speaks volumes.

The Prime Minister could resign, and the legal onus to extend Article 50 placed on someone else. Boris Johnson could then, as leader of the opposition, trigger a no-confidence vote which leads to the general election that he so clearly wants. It’s then fought on the basis of Brexit, with, despite what’s been said, the inevitable electoral pact with Nigel Farage.

These are the possibilities and some are clearly more viable, and more practicable, than others. The Prime Minister has said he won’t extend, Parliament won’t approve a damaging no deal and seem unlikely to approve a deal in time, and a further prorogation, if possible after the Supreme Court ruling, would shake our unwritten constitution to the core. The Prime Minister’s resignation inherently feels the most likely outcome.

Should that happen, rest assured that the full use of executive power will be used in advance. The Conservative Party’s conference has to see a significant Brexit announcement alongside domestic crowd-pleasers. Similarly, the Queen’s speech provides the perfect pre-election platform to set an agenda full of policies that sit alongside Brexit preparedness.

With the Prime Minister’s promise to leave the EU on Oct 31 – deal or no deal – the option to make an extension to look forced has gone but the power to set a direction still exists. Expect the Prime Minister to make the most of it.

Joe Moor was director of legislative affairs at No10 for Theresa May