Opposition MPs have agreed that ‘plan A’ for stopping no deal will be introducing legislation to force the government’s hand. But the government's announcement that it will prorogue Parliament in mid-September, ahead of a Queen’s Speech on 14 October, has increased the pressure on MPs to act as soon as they return from summer recess.
There could be between four and seven sitting days before Parliament is prorogued – which could be just enough time to pass legislation (the ‘Cooper Act’, the last occasion when MPs took control of parliamentary time in an attempt to avoid no deal, took five sitting days). But if anti-no-deal MPs aren’t successful, then they will be left with only six sitting days – between the final votes on the planned Queen’s Speech on 22 October and 31 October – to try and stop no deal.
While MPs opposed to no deal appear to have agreed that legislation should be the first priority, passing such legislation will not be straightforward.
MPs will first need to find an opportunity to take control of the Commons’ order paper. To do this, MPs may seek to use a Standing Order No.24 emergency debate motion. These are usually held on ‘neutral’ motions which state that the House has ‘considered’ an issue, rather than ‘substantive’ motions which enable the House to make a decision. To take control of the order paper, therefore, MPs will have to rely on the Speaker to allow a substantive SO24 motion.
MPs opposed to no deal will also need to draft a bill that a majority of MPs feel able to support. Anything too controversial may lose crucial votes, but the bill will need to cover different eventualities and tie together different groups in Parliament – MPs who just want to avert no deal and those who want to stop Brexit altogether. This means that legislation is likely to follow the template of the ‘Cooper Act’, which required the government to seek an extension to Article 50 from the EU (although the government had already requested an extension by the time the Act passed in April).
But there will be a concern that merely requiring the prime minister to request an extension may not be sufficient. Unlike Theresa May’s team, Johnson’s Number 10 has already suggested that it is willing to do whatever it takes to deliver Brexit by the latest deadline.
Passing legislation will require multiple votes in Parliament. MPs must vote to take control of the order paper, support a business motion to timetable the passage of the legislation and then vote to pass the bill at second and third reading. They may also need to see off amendments from the government or other backbench MPs.
The bill will then need to pass through the House of Lords, and government peers may repeat their previous attempts to filibuster the passage of the Cooper Bill. The Cooper Act eventually passed because the government agreed to co-operate. By refusing to do so this time around, the government could considerably slow the passage of the bill. And any legislation will need to be passed before prorogation, otherwise MPs will need to start the process all over again once the new parliamentary session begins.
Backbenchers who want to act now face a challenge in persuading enough of their colleagues to support their plan. Some of them will be wary of limiting the government’s negotiating leverage with the EU – and both Johnson and the EU are making warmer noises about possible renegotiations to the Withdrawal Agreement.
But a failure to pass an anti-no-deal bill before prorogation will leave very little time to act when MPs return in October – even if the looming Brexit deadline gives them a greater chance of getting sufficient support amongst MPs. By announcing that it will suspend Parliament, however, the government might well have helped its opponents to gain the numbers they need to succeed first time around.