The prime minister finds himself in the same trap as his predecessor. The speaker has ruled – predictably, and entirely in line with procedural orthodoxy – that Boris Johnson cannot bring the same proposal for a deal back to the House time and time again, as if he were chopping down a tree with repeated blows of an axe.
For Johnson’s deal now to be approved, he will have to secure agreement in both Houses to a Withdrawal Agreement Implementation Bill, possibly altering the present requirement for a “meaningful vote” in the process. Getting such a Bill through the Commons in the three days proposed will be a huge challenge. Even if a wafer thin majority emerges for the second reading itself, the government might find itself without the ability to control the House’s time for the other stages of the bill. The Lords are also unlikely to have any truck with a rushed timetable.
It is still possible, at this late stage, for a Final Say referendum to be inserted into the bill, or other conditions attached that Johnson could not accept such as a legal requirement to negotiate a customs union or a full EEA deal. The Benn Act is now in force, and a request for an extension has arrived in Brussels, but Johnson is hoping that the EU27, led by Emmanuel Macron, will offer an unacceptably short extension or no extension at all, at which point the Benn Act would fail to deliver a meaningful delay.
The danger is that Johnson could react to a combination of an amended bill and an extension that cannot be accepted by simply dropping the bill, shifting back to a no deal policy. If that happens, the Commons will be looking for any means possible to prevent a no-deal Brexit.
The clearest and cleanest route to preventing no deal is to replace the Johnson government with a government that will not pursue no deal. That could happen by the Commons voting for a motion of no confidence, either under the Fixed-term Parliaments Act, or by a motion (a "humble address") asking the Queen to dismiss Johnson and to appoint someone else.
However, an idea is now floating around that Boris Johnson might frustrate such a plan simply by refusing to resign.
The theory runs that the prime minister could persuade the Queen that the Fixed-term Parliaments Act has taken away her power to dismiss him as her prime minister and so, if he refused to go, nothing could be done The act cannot have changed the prior position that a PM defeated in a vote of confidence is entitled to an election, so that it must be interpreted as abolishing any power of the monarch to dismiss the prime minister, since dismissal would interfere with the premier's right to that election.
On this argument, Boris Johnson would be entitled to run down the 14-day clock under the act – and cannot be dismissed in any other way.
But this suggestion is a misinterpretation of both the previous position and the present one. According to the "Lascelles Principles" (promulgated by a private secretary to George VI in a pseudonymous letter to the Times), the position prior to the Fixed-term Parliaments Act was that the monarch would normally grant an election but was not obliged to. Specifically, he or she would not do so if the Parliament was still "viable", a stable alternative government could be formed, and an election would not be good for the economy.
The proponents of Johnson’s entitlement to squat in Downing Street would doubtless say that this House of Commons is not viable because it cannot agree on Brexit – or, at least, on the Brexit that the government wants. But their reading of the present position is completely at odds with the intention of the Fixed-term Parliaments Act: the act is expressly intended to eradicate the idea that a prime minister who loses the confidence of the Commons is entitled to an election. Instead, an election ensues only if MPs votes for one by a two-thirds majority or proves incapable within a reasonable time (set by the act at 14 days) of sustaining a new government in office.
This intention was set out in the explanatory notes to the bill, and could scarcely be clearer. The purpose of the 14-day period is "to provide an opportunity for an alternative Government to be formed without an election."
The phrase "without an election" is crucial. The idea behind the act is that MPs should not resort to the electorate outside the regular cycle unless it is impossible to obtain a majority for a new government – and it is MPs themselves, rather than the prime minister or the monarch, who decide whether the current parliament is viable or not.
The act reduced executive power by removing the threats prime ministers could previously make to pull the rug from under rebellious backbenchers by calling an election. Henceforth, cantankerous MPs could rebel if they wished and still vote against dissolving parliament. The idea that prime ministers should be allowed to run down the clock goes in entirely the opposite direction, shifting power away from the Commons and back to Number 10.
The whole point of the 14 day period is expressly to allow a different government to be formed. That can only happen if the monarch can dismiss an outgoing prime minister in order to appoint someone else. The act does not remove the monarch’s dismissal power. It reaffirms it.
Brexit continues to produce topsy-turvy arguments in which up is down, ignorance is strength and freedom is slavery. This latest reversal of the truth must be exposed and rejected. But if it is not, and somehow catches on, parliament should affirm in a short bill the undoubted power of the monarch to dismiss her prime minister.
Better still, responsibility for appointing and dismissing prime ministers could be transferred where it really belongs: to the House of Commons itself.
David Howarth is a Professor of Law and Public Policy at the University of Cambridge and an adviser to Best for Britain, the UK’s leading campaign for remaining in the European Union.