Gina Miller 2 by Keith Edkins (CC-BY-SA-4.0)

Image by Keith Edkins (CC-BY-SA-4.0)

Things are getting a bit tasty now with Gina Miller threatening to take Boris Johnson to court and the Labour Party rejecting calls to be part of a government of national unity.

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Gina Miller has warned that she would be ready to take Boris Johnson to court to have him removed as Prime Minister, if he refused to resign immediately on losing a vote of no confidence.

And Miller has called any attempt by him to cling on to power as 'unlawful'.

Talking to the Radio 4 Today programme she said:

"Our view is that, when it comes to the Fixed-Term Parliament Act, that Act is actually about calling a general election, not about when or how a Prime Minister resigns or Government falls.

"That is governed by convention and there is a solid convention that a Prime Minister losing a vote of no confidence must step down. That's what it says in convention.

"This is a crucial point. Whilst the Fixed-Term Act does not replace convention, it can be said that the frustration of the principle would be in play because Prime Minister Johnson's refusal to go would frustrate the operation and the purpose of the act and therefore be unlawful."

Now, she would I think know, that the earliest a general election can now be held under the Fixed Term Parliament Act 2011, is the 31st of October – Brexit Day and too late to stop it.

Unless the convention of holding elections on a Thursday is ignored.

So I assume that she is hoping that the House of Commons will take the opportunity to install a government of national unity to stop Brexit, if Boris Johnson resigns or is forced to.

But the Labour Party it seems is not up to playing that game.

If Labour does table a motion of no confidence in the Boris Johnson administration, it looks like they want the general election – something that would not now happen until after Brexit.

The Shadow Secretary of State for Business, Energy and Industrial Strategy, Rebecca Long-Bailey said:

"We're happy to collaborate on a cross-party basis, but we wouldn't countenance a national government of unity, because we think that we need to have a clear majority for a government in Parliament, and that's why we're calling for a general election."

So I think Gina Miller would be wasting her time and money.

Now, Miller also talks about convention, saying that the Fixed Term parliament Act hasn't changed the convention that the PM resigns on a vote of no confidence.

But that's not the complete picture, the convention was that the PM had the choice of either resigning or calling a general election. Gina Miller only wants half the convention.

Now I took a quick look back through the documents that arose and Hansard as the debate on the Fixed Term Parliament Act progressed.

It seems that all parties were keen on keeping that convention of a resignation or general election alive. But for some reason a 14 day cooling off period was introduced.

Just to give you the bare bones. The original draft bill said:

An early parliamentary general election is also to take place if the Speaker of the House of Commons issues a certificate certifying that—

(a) on a specified day the House passed a motion of no confidence in Her Majesty's Government (as then constituted), and
(b) the period of 14 days after the specified day has ended without the House passing any motion expressing confidence in any Government of Her Majesty.

But this was tightened down after the House of Lords committee stage to:

An early parliamentary general election is also to take place if—

(a) the House of Commons passes a motion that says: "That this House has no confidence in Her Majesty's Government."

and
(b) the period of 14 days after the day on which that motion is passed ends without the House passing a motion that says: "That this House has confidence in Her Majesty's Government."

They took out the reference to the government as constituted and any motion of confidence in any government.

That says to me that the PM can resign immediately if they want to and let parliament form another government or they can hang on for the 14 days and force a general election.

And to back this up I will quote what Lord Falconer of Thoroton said on this very issue during the final stages of the exchange, called the ping-pong, between the upper and lower houses just prior to Royal Assent being given to the Act. According to Hansard he said:

"Finally, the father of my noble friend Lady Jay in 1979 was defeated in a vote of confidence on the Floor of the House of Commons. The most quoted extract from political history in the course of this debate was what Mr James Callaghan said when he was defeated. He said, "I have been defeated in the House of Commons. I must now take my argument to the people". After this Bill has been passed he would have to say, "Now that I have been defeated on a vote of no confidence, I must see if I can scrabble together a majority to stay in power because this beastly Act gives me 14 days in which to try to do it"."

That statement was never, I believe, disputed in parliament and gives us the understanding that parliament had as to the intent of the Act.

Boris can stay to the bitter end.

Sources:

https://www.express.co.uk/news/uk/1162677/Brexit-news-Boris-Johnson-confidence-vote-UK-EU-withdrawal-deal-Gina-Miller-latest

https://www.express.co.uk/news/politics/1162830/brexit-news-labour-party-jeremy-corbyn-boris-johnson-nicola-sturgeon-no-deal-latest

https://publications.parliament.uk/pa/ld201011/ldhansrd/text/

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