06 June 2019

The Speaker has hinted that he will do all he can to allow Parliament to determine the course of Brexit but, argues Maddy Thimont Jack, this support is no guarantee that MPs can block no deal.

No deal on 31 October is the legal default under Article 50 of the EU treaties. There are three ways to avoid this. Either Parliament approves a deal, the Government requests (and the EU agrees to) another extension to Article 50, or the Government revokes Article 50. But if a new prime minister is determined to pursue a no deal Brexit then, under current parliamentary rules, it will be very difficult to stop them – even though MPs have previously voted to show there is a majority against no deal.

They could hold a vote of no confidence in the Government – but there is no guarantee that would be passed. And if it was, there would still be a huge question mark over how the timeline of a possible general election (if the Commons can’t coalesce around an alternative prime minister) would interact with the Article 50 timeline.

The Speaker could yet end up playing an important role. He all but confirmed his intention to do so when he told the Brookings Institution that “the idea that Parliament is going to… be evacuated from the centre-stage of the debate on Brexit is unimaginable”.  

The Speaker can create opportunities for MPs to express opposition to no deal

To help MPs demonstrate a majority against no deal, the Speaker could:

  • Challenge the Government from the chair, as he did when he heavily criticised the decision to pull the first meaningful vote without consulting the House in December 2018.

  • Grant urgent questions and emergency debates to backbenchers.

  • Allow votes on amendments on any legislation – Brexit-related or not – which seek to prevent no deal. Although the Government could subsequently drop any unhelpfully amended legislation.

  • Interpret parliamentary rules to allow ‘substantive’ motions to be tabled under Standing Order No.24 (the parliamentary rules governing emergency debates). Under these rules, the motion for an emergency debate simply states that the House has ‘considered’ an issue. This means the motion is unamendable. In March, the Speaker told Labour backbencher Helen Goodman that the “opportunities [were] fuller” under these motions than MPs usually realised. 

If the implication of this is that the Speaker might interpret SO24 to allow a decision on a substantive motion – one which expresses a point of view – then this would give MPs a chance to approve or reject an outcome.

MPs can try to legislate against no deal, but there is no guarantee that could succeed

The only surefire way to direct the Government is to pass legislation – as the Commons did earlier this year when the ‘Cooper Bill’ required the Government to request an extension to Article 50 (although Theresa May had already sent the request to the EU when the bill passed).

If the Speaker did decide to allow a substantive emergency debate motion, that could enable a majority of MPs to take control of time in the Commons and pass another bill requiring the Government to act to avoid no deal. But they would first need agreement on the content of that bill – and enough time to get it through the Lords.

The progress of the ‘Cooper Bill’ was far from straightforward. Many MPs were concerned with the principle of backbenchers legislating without the same levels of accountability as the Government. There will also be the added pressure for Conservative unity under a new leader – and the threat, in some seats, from the Brexit Party.

And the votes last time around were very close. While 400 MPs voted against no deal during the first round of indicative votes in March, in April the ‘Cooper Bill’ itself passed second reading with the support of only 315 MPs (and a majority of five) and third reading with the support of 313 (and majority of only one).

The legislation which finally passed was the fourth draft of a bill designed to stop no deal – and the ‘Cooper Act’ was a very specific ‘one-off’ bill which only forced a vote on extending Article 50 the day after Royal Assent. That is why MPs don’t have a continuing power to stop no deal.

Timing may end up being the biggest obstacle to stopping no deal

The tactics in the autumn are far from clear. MPs might find that a broader bill – seeking to rule out no deal more permanently – would struggle to win enough support, while another one-off Cooper-style bill may result in a time-sapping war of attrition between Parliament and the Government.  

Summer recess and conference recess will also eat into the remaining time, and MPs will not be able to make multiple attempts to take control of the Commons’ order paper. There is also no guarantee that a new prime minister will make their intention clear until much closer to 31 October – possibly only after the European Council in mid-October. 

MPs who want to prevent the UK from leaving the EU without a deal need the Speaker to give them the opportunity to pass legislation, and the majority to agree, and stick to, a plan. John Bercow’s comments may have given them some encouragement, but there is still no easy parliamentary route – and very little time – for MPs to block no deal.

Comments

What happens if the new PM declares to Parliament that the Executive will advise the Queen not to give Royal Assent to any piece of legislation which the Executive has either proposed or supported?

SO No 24 debates are not "That this House has considered...." by convention, but by standing order (SO No 24, unsurprisingly).

Previous delays to Brexit have been tabled by the Government in the form of Statutory Instuments (SIs) to amend the Exit Date defined in the EU (Withdrawal) Act 2018. SIs don't need the Royal Assent. If the Government refuses to table another delaying SI, I suspect the present Speaker would allow Parliament to table one. Lawyers may have an opinion on whether that is constitutional, but Speaker Bercow amends the unwritten constitution as he goes along. If he attempts this sleight of hand, a PM would be quite justified in proroguation.
Parliament has decided that the deal on offer is not a good deal but will not accept the consequence that we leave with no deal.
Parliament is therefore at loggerheads with the electorate, and the electorate must have its way, either with a good deal or no deal.

Why does J.Bercow appear to influence and lead parliamentarians? Is he in charge re Brexit :deal/no deal?
Does speaker of the House have supreme power nowadays with Backbenchers permissions?

Brexit will happen on 31 October 2019 unless Article 50 is either revoked or extended. Passing a SI amending the exit date does nothing in EU law. The Executive (i.e. Government) needs to request the extension. The SI cannot force the Government to do this and the EU Commission and 27 other EU Governments are powerless without such a request.

Hi Maddy,
I wondered please would be possible to have your comments on a recent conversation I had, thanks :

Seb:
Parliament cannot compel Johnson to ask for an extension or cancel A50. So he can only fail if (like May) he chooses to fail.
Please let me know if I have misunderstood at all. Thanks S-

Ray Tate:
Parliament has the sovereign power to scrutinise, amend, and affirm government's proposed legislation. It has already done so in respect to the EU Withdrawal Act, and no further legislation is required. The government controls the order of the day, so the rebels don't have to be given any appropriate legislative meat on which to feed. The period to October 31st can be perfectly anodyne and calm!

Ricardo Montalban:
A statutory instrument can only be applied to the EU Withdrawl Act if a government minister agrees to it.

Ray Tate:
Indeed, the EUWA has passed through the Commons and the Lords, and cannot be brought back by either.

david hinson:
But it won't be perfectly anodyne and calm as Parliament has shown it will not tolerate a no deal exit that nobody voted for. You have clearly been dozing since Xmas to be so confident.

Ray Tate:
Parliament cannot act without meaningfully related legislation to which it can add amendments.

Seb James:
But what are they actually going to DO about it?
('do' being the operative word)
It's a practical question.

Tom Archer:
As PM, Johnson does not need parliament to pass any more votes to deliver Brexit.
Also as PM, as adviser to Her Majesty, Johnson can, if necessary, prevent parliament voting to derail Brexit.
- Therefore he will have the power to deliver. The possibility that he might deliver a month earlier than Oct 31st is an intriguing one, and could be a masterstroke - it could be announced at the party conference..

Ray Tate:
Your last para is a good reminder. I had stupidly forgotten that. We can leave tomorrow morning, legally speaking - and if we are ready (which we are).

Seb James:
So he could be elected on the 24th, and announce we have left on the 25th? (The day Parliament rises) there would then be a recess till 3rd September while everyone calms down. Have I got that right?

Ray Tate:
It's there in Lisbon A50, Seb. The exiting nation can leave at any time during the two year notice period, or extension thereto, but in any case must do so at its end.

Tom Archer:
That's possible, but unlikely. before parliament returns from the summer recess makes a lot of sense however.

We now know that the Government has proroguing in its locker, ready to go if all else fails to stop anti-no-dealers. It would be entirely legal and would span the conference season, hence its five week length. This parliament is well overdue for a new Queen's speech and new session. If the Brexit issue did not exist, no one would bat an eyelid at a dissolution at this point. So the Brexit situation should not make any difference. The government would not be doing anything while Parliament is prorogued as the statutory law to leave on October 31st has been passed by MPs and been in place on the books for quite a while. The courts would have nothing to say about it.