Don’t assume Boris Johnson will be able to force through a no-deal Brexit

Editorial: Crashing out of the EU is an outcome the vast majority of the British people, the Commons and even Conservative MPs are opposed to

By admitting that ramping up the talk of no deal is a negotiating technique, Johnson rather gives the game away (AP)

Is Sir John Major making a no-deal Brexit paradoxically more likely though his decision to add his weight to the Gina Miller-led judicial review of the suspension of parliament?

Boris Johnson certainly says so, and his argument has a certain superficial appeal. To avoid war you must prepare for war, the old adage goes – si vis pacem, para bellum, to add a suitably Johnsonian touch. To avoid no-deal Brexit, you must prepare for no-deal Brexit. Hence the prime minister’s high profile and ever more energetic preparations for no-deal Brexit, the high-handed dismissal of parliament, the conspicuous expenditure – waste – of billions on ferries and stockpiling medicines, and the general sense of a nation being run out of a bunker of madmen in Downing Street, willing to take the UK out of the EU on 31 October – do or die.

If it is true, as Mr Johnson reiterated in his latest Sky News interview, that the best way to avoid a no-deal Brexit is to prepare for a no-deal Brexit, then he really is the friend and ally of those who want a deal. Surrounding himself with true believers such as Dominic Cummings, Dominic Raab and Jacob Rees-Mogg is merely to add to the sense of theatre. The more the EU believes that no-deal Brexit is a realistic possibility, the more terrified it becomes – and the more willing to make that crucial concession on the Irish backstop. Sooner or later the bloc will cave in. But if MPs decide to rule out no deal, then the negotiating strategy lies in ruins, and exactly where Theresa May left it, a broken reed. Thus the nation needs to unite behind the possibility of no deal, and back Johnson: otherwise they are “colluding” with the EU.

All fine, except of course that none of that represents a legal justification for setting aside the constitution. In any case, by admitting that ramping up the talk of no deal is a negotiating technique, Mr Johnson rather gives the game away. More and more he resembles the Wizard of Oz – all bluster.

No deal is an outcome which, even theoretically, even as a gambit, the vast majority of the British people, the Commons and even Conservative MPs are opposed to. It is too big a gamble. Hardly anyone outside of Nigel Farage and his followers and the “Spartan” group of Tory rebels, actively desires a no-deal, or “clean break”, Brexit. At best it cannot necessarily be construed to be the will of the people as expressed in the 2016 vote.

Everyone in Brussels, in Berlin, in Dublin and in Paris understands that. They know that no-deal Brexit is an empty threat. The bluff doesn’t work if everyone involved in the process knows that it is a bluff, and even if some of those taking part (for example, the two Dominics) have convinced themselves that it is not.

So much for game theory. The nation will soon be treated to a good deal of legal theory about the limits of the various conventions that govern the British constitution. As part of the prime minister’s attempt to scare the pants off the entire European continent, he is threatening not only to prorogue parliament but to ignore any laws the Commons may pass, to obstruct the calling of a general election or the formation of an alternative government if he loses a vote of confidence and, for all we know, take to the barricades in the name of the 52 per cent who voted for an unspecified, unknown form of Leave in the referendum of 2016.

Mr Johnson is pushing things too far, and breaking the constitution. For each convention he chooses to trash, so the speaker of the Commons, the leader of the opposition and the courts can too trash conventions. Or, to put it more soberly, the Supreme Court can, as it has before, choose to exercise its role as the ultimate arbiter of legal and constitutional rectitude (for there is no other) and rule on whether what is now being done goes beyond the British constitution, unwritten though it is. It should certainly find that the grounds for prorogation were, at best, partial. As has by now become obvious, a 35-day suspension is not required to prepare a new Queen’s Speech, and a new Queen’s Speech was not in any case required urgently.

By contrast, it is manifestly apparent that parliament rises to make decisions – not just debate or lay down motions – on the Brexit process, and is being effectively prevented from doing so by an overmighty executive that is, frankly, trying its luck. The gang in Downing Street might enjoy their reputation as being ruthless wizards of politics, but that does not mean that they are above the law and beyond the reach of the constitution simply because it works on gentlemen’s agreements and conventions. Parliament has been diminished and demeaned by the process, most obviously in having the speaker kept out of the process, a non-person in such an event.

And so, to put matters into plain English rather than Latin or legalese, the Supreme Court needs to put 10 Downing Street back in its box. The prorogation was wrongly advised under our constitution, and requires amendment. Another modest session of the privy council at Balmoral and a new order in council cancelling prorogation can and should be swiftly arranged. Then parliament can speak through legislation, and MPs can do their job.