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From this BBC article Could a no-deal Brexit still happen on 31 October?

Could the government scrap the law?

The bill states that it is the prime minister himself who would have to request an extension directly to the president of the European Council.

It even includes the exact wording of the letter.

What happens about that letter if Boris resigns on the 19th leaving it unsigned, will there be enough time to get a new PM in before the 31st to sign it, is anyone other than the PM able to sign it, would he have to sign it anyway.. could the PM's resignation be used as a way to help 'time out' brexit.

In the scenario I imagine Boris announces his intent to resign on the 19th leaving the letter unsigned & the conservatives start a new leadership contest for a new PM which concludes November 1st.

It's a highly unlikely scenario I know but I'm still curious what it would mean if he did, so..

What happens if the PM announces his resignation on the 19th leaving that letter unsigned?

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    I assume you typo'd the date. revert and delete if I was wrong in editing it. – bobsburner Oct 8 at 10:46
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Answering this requires distinguishing between two of the many posts that Johnson holds. Prime Minister, and Leader of the Conservative Party are separate jobs.

The normal process goes like this:

  1. Johnson gives notice of his intention to resign as leader of the Conservative Party, just as May and Cameron did.
  2. The Conservative Party then holds a leadership election.
  3. When that's complete, Johnson resigns as Leader of the Conservative Party and the newly elected leader assumes that job.
  4. Johnson then resigns as Prime Minister and recommends to the Queen that she appoint the newly elected leader of the Conservatives as PM.

The important point is that Johnson remains PM until he resigns that post. The fact that he's going to be replaced does not allow him to get out of the duties of the PM meantime. And Parliament has decided that getting that extension is a duty of the PM, in new legislation, which is very clear on the point.

If he resigns as PM with no new leader of the Conservatives in place, that gets him out of requesting the extension, but he may well be breaking the rules of the Conservative Party, which will not help them in the election campaign that's clearly going to happen in the next few months. As a resigning PM, he's expected to nominate a successor, who needs to be someone who can demonstrate that they command the confidence of the Commons.

Since Johnson removed the whip from enough Conservative MPs to remove his majority, it's not clear that any of the Conservatives loyal to him could command the confidence of the Commons. He is to some extent "trapped in government", without effective power and with legal obligations he's unwilling to meet. A majority of the Commons has united to put him in this fix, and they don't seem inclined to give him a face-saving way out. This has happened as a reaction to his plan to prorogue Parliament early, which many MPs and quite a few other people see as an attempt to subvert the constitution and the powers of Parliament.

If Johnson resigns without suggesting a successor, we're in unknown territory. One sensible way to handle it would to act as if he'd died unexpectedly, but we don't have much in the way of modern precedents for that. It's also a hypothetical situation.

  • If the Cabinet put forward one of their number to act as temporary PM, that could work from the constitutional point of view, but they'd have to be willing to seek the extension, and they'd have to pass a vote of confidence once Parliament was in session.

  • Direct negotiations in the Privy Council could happen. They would be trying to find someone who can get a vote of confidence through for a short-term administration to patch the holes and get the ship stable before an election is held. This almost certainly precludes a no-deal Brexit.

A principle to be followed is that the country is supposed to never be without a government, and forming one that can function is a prerequisite for any further actions.

Overall, Johnson has managed to turn a political crisis, with a strong possibility of an economic crisis should a no-deal Brexit happen, into a likely constitutional crisis. By proroguing Parliament early, he's galvanised his opponents and created the situation he seems to have been trying to avoid.

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    "This has happened as a reaction to his plan to prorogue Parliament early" I'd have to disagree they've done nothing they weren't going to do anyway. – Pelinore Sep 6 at 19:48
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    "Since Johnson removed the whip" tomayto tomahto there were never going to vote on the government on anything important to brexit anyway so that 'majority' just an illusion, better to have them outside the tent pissing in than inside pissing out, at least you can close the tent flap & not get any splashback from the canvas then. – Pelinore Sep 6 at 19:48
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    Incidentally, many of the 21 Tory MPs who had the whip removed voted for May's Deal. They aren't anti-Brexit, just anti-no-deal. – John Dallman Sep 6 at 20:07
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    "If Johnson resigns without suggesting a successor, we're in unknown territory". I'd imagine that it would be treated as if the PM were to die in office. I couldn't find any information on any relevant rules for the Conservative Party, but the Labour Party Rule Book actually spells out what it would do if it were in government and this were to happen: the Cabinet would meet and nominate someone to become party leader and PM, and they would serve until a leadership election could be held to elect a new leader (and hence PM). – Steve Melnikoff Sep 6 at 22:54
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    @Pelinore What directions from the people? Other than "leave", there are no directions from the people, and that's the entire problem. There isn't just the one way to "leave", like there is with "remain". There are many possibilities, and there is not now, nor has there ever been, and likely there will never be, a public consensus on which one to go with. And not every PM's constituency voted for leave or would do so again, so of course they're not just going to hop onto the brexit train. – zibadawa timmy Sep 7 at 22:38
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It's hard to answer this definitively, since we are living in Interesting Times, but by convention the British Prime Minister is not expected to resign without advising the Sovereign of the appropriate candidate to be his or her successor. On appointment, the duty would then fall to them. This would provide a trivial way for Mr. Johnson to follow his own moral compass in not committing the act while still obeying the law, by getting someone else to do it.

If on the other hand Mr. Johnson actually ended up dead in a ditch on , or somehow managed to resign without giving any earlier indication this was happening, then it's very unlikely a court would view it significantly differently from him just refusing to sign the letter while carrying as PM. The decision would either be that the government would have acted unlawfully or that it was exercising a power it possessed. If it was decided it was acting unlawfully, the question of how to achieve restitution is mostly a political one, depending a lot on how the other EU leaders would respond to the letter he's been instructed to write, it's certainly not outside the bounds of possibility that the UK could be "put back in" temporarily if both the UK Parliament of the time and the EU leaders wanted it.

  • Surely once he's announced his intention to resign the constitutional convention is that he then doesn't enter into any new binding or merely important treaties or legislation (which surely this could qualify as) while a new conservative leadership contest is fought out, this could likely take until beyond the 31st? – Pelinore Sep 6 at 18:09
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    @Pelinore Parliamentary conventions only weakly acknowledge the existence of parties, and there is no reason in law why the Prime Minister has to be the leader of his party. In principle it could be arranged for (e.g.) Kenneth Clarke to be PM for the evening to handle the negotiations, with Boris Johnson remaining leader of the Conservative party. – origimbo Sep 6 at 18:12
  • In principle yes but there's no plausible reason why the Cons current PM would name anyone outside the party as the new PM. hmm I regret the use of the word 'plausible' I can see that coming back to bite me :) – Pelinore Sep 6 at 18:14
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    @Pelinore In which case the issue would move to him or her instead. The convention of not needlessly binding the hands of one's successor doesn't obviate the need to obey the law, or the courts' ability to enforce it. – origimbo Sep 6 at 18:19
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    @Pelinore If he's the PM on the 19th, he is legally required to sign the letter. Having announced he intends to resign changes nothing. – Caleth Sep 9 at 10:24

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