A number of commentators think that the Fixed-term Parliaments Act does not force the removal of the Prime Minister, because he could just sit it out until a General Election conducted on a date after we leave the European Union.
It's worth examining...
Yes, within the fortnight between the vote of no confidence and the vote of confidence, the Fixed-term Parliaments Act is ambiguous on the sitting Prime Minister. So is a situation of a two-thirds vote that goes directly to a General Election.
However, within the fortnight, a new leader can emerge chosen by those (or most of those) who voted no confidence in the government. Johnson might not budge, but this person would then receive the vote of confidence, and then the monarch would indeed invite that person to form a government.
Such a person would lead a government with the sole aim of introducing legislation to take a leave date out of legislation to leave the EU and to ask for an extension, and then give way to a General Election.
Labour says at present that it won't play ball with this scenario. The problem is that if it moves to a General Election, the sitting government might well set the plebiscite at the date after leaving, which an interim regime would prevent.
The dilemma is that caretaker governments do not innovate. But a) does this mean we stay in the EU with an extension? or b) do we come out of the EU according to existing legislation?
This problem is only solved by avoiding a General Election and having a new regime in place with a majority. If Labour saw that an immediate General Election takes us out of the EU, surely they would go along with the idea of an interim regime that does the Executive necessities before then moving to a General Election?
Power has to be taken from Boris Johnson. The issue of a caretaker government has to be based on a calculation: the Conservatives who vote his reckless government down minus the Labour MPs who would vote him out but then would not install a removal of no deal via a temporary regime. Think of the likes of Caroline Flint. If the necessity of a temporary executive can be explained, then we might get the Labour MPs voting for the interim regime (except Kate Hoey and one or two others, who might even support Johnson all along). If Corbyn and McDonnell do not play ball on this, then bizarrely they could see us fall out of the EU.
Johnson himself could go to the country saying, "We've done it!" but, on the other hand, the chaos of leaving could hit him electorally. But leaving without a deal would have happened. And this leads to a real dilemma: that Johnson himself would go to the country on the basis that we will have left the EU by the time the electorate gets to vote.
Here is the bizarre reality:
a) Johnson calls for a General Election but the opposition parties say no until no deal is off the table by legislation or a request for a substantial delay.
b) Labour and the opposition parties vote no confidence in the government and so does Johnson in order to get the two-thirds majority and immediately become a caretaker Executive and sit things out to a General Election that he announces to take place after we leave the EU with no deal!
A smart move might be the European Union doing a preemptive removal of the leave date: it is European law here that is superior. Our legislation may have said we have left but if the European end does not then a brand new (five year) government getting a delay or revoking would still be allowed at their end by our new legislation matching theirs afterwards.
Another smart move would be Parliament itself, before it folds to a General Election, grabbing the order paper to make sure that legislation removes the leave date and commands the executive to ask for a delay. Removing the leave date may be sufficient prompt for the Commission and EU 27 Council of Ministers to change their law to delay.
The issue here is that, whilst we sometimes do not have a Parliament, we always have a Government. The question is what the Government does when Parliament is no more, and this needs to be decided by law when a Government cannot be trusted. So, whilst the safest option is a temporary government, the fortnight-plus one, Johnson can still order his troops to vote towards a General Election in order to crash Britain out of the EU. Knowing this needs fast footwork by the House of Commons (and House of Lords too). The Supreme Court may also be needed for some rapid judgments on procedure: what constitutes the status quo, and for how long the Houses of Parliament can act once a General Election is called (having been signalled to take place after the leaving date).
Dominic Cummings, the Prime Minister's Special Advisor, seems to think he can railroad leaving the EU regardless. The House of Commons needs to remove Johnson and Cummings, to at least extend our stay in the EU, and then either achieve a withdrawal deal or in fact revoke Article 50 altogether under a new British Government.