Brexit’s future is in John Bercow’s hands

The House of Commons is expected to vote on a motion to approve the Prime Minister’s Brexit deal next Tuesday. The Chair, which for the meaningful vote will be the Speaker John Bercow, will decide which amendments are debated, which ones are voted on, and in what order.

The Speaker usually follows certain principles to do this. But by selecting Dominic Grieve’s amendment to an unamendable motion, Bercow has shown that he does not consider himself bound by precedent or convention. His decision has already attracted furious criticism, but there are harder decisions to come.

The order of amendments will determine how well they do

Bercow can select as many amendments as he likes under the business of the House motion that applies to the meaningful vote. The amendments tabled in December are still on the order paper, but the main proponents of alternative outcomes held their fire when the Prime Minister’s deal last went before the House, waiting for the deal to fail first. It is not yet clear whether their tactics will change this time round.

If they do, the order in which the Speaker calls amendments for a vote will become important. This could even determine the outcome, because many MPs will only support certain options once other options have failed.

For instance, MPs who support the People’s Vote campaign would probably only support an amendment which tried to pivot the Government towards a Norway-style Brexit if they had already had the chance to vote on a second referendum, and failed to secure one. Conversely, some Conservative MPs (like Nick Boles) will only vote for a Norway-style deal once the Government’s deal has been rejected. Amendments called later therefore have a better chance of success than those called early.

Normally, amendments to the same motion are voted on in the order they are tabled. However, this is at the discretion of the Chair. If the Speaker thinks it makes more sense to select them in a different order, he can make that happen.

The Speaker should take a generous view of what amendments to the meaningful vote motion are “in order”

There are conventions about what sorts of amendment to a motion are “in order”. If an amendment is not in order, the Speaker will not select it for debate or for a vote.

Normally, an amendment which "negatives" the motion, reversing its meaning, would be considered a wrecking amendment and ruled out of order.

The Speaker should, and almost certainly will, exercise his discretion to depart from that practice for the meaningful vote. As we argued, it would be vastly better if Parliament expressed a positive view about what should happen next by amending the motion than if Parliament rejected it with no further instruction.

It may be that the ’real’ votes only come when the issue comes back to Parliament if the Prime Minister’s first attempt fails. In that case, a debate looms about how many amendments can be selected and, again, in what order. The Speaker has a tightrope to walk: by convention, the Chair never gives reasons for decisions on selection. But he needs to avoid the impression he is loading the dice.

The Speaker will find it more difficult than most to defend the legitimacy of his procedural decisions

John Bercow is himself the object of political controversy. He has been criticised for his role in the bullying and harassment scandal, his attitude to women in Parliament, his neutrality as between the Government and the Opposition, and his neutrality as between Leave and Remain.

He is more willing than some Speakers to play with procedure. In 2013, for instance, he accepted a third amendment to the Queen’s Speech, whereas usually a Speaker would select two. (That third amendment called for an EU referendum.)

His decision yesterday on the latest Grieve amendment, which accelerates the timetable for what happens if the Government loses the meaningful vote, showed how procedurally contentious the final Brexit votes will be. Against precedent and reportedly against the advice of House of Commons officials, he ruled that this amendment was in order.

There is no higher authority than the Speaker in the Commons, and when it comes to procedure, what he says goes. He had better make sure, therefore, that his decisions on procedure in the coming weeks are defensible – even if he is bound by convention not to defend them.