10 January 2019

When MPs come to vote on the Brexit deal, the Speaker decides which amendments get debated and voted on. This process takes place behind closed doors, yet it will be crucial to the outcome, argues Raphael Hogarth.

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.

Comments

In 1977 Mr Speaker Thomas had to deal with a motion stating that a ruling made by the Chairman of Ways and Means in Committee of the Whole House should not be treated as a precedent.

The arguments against the ruling made by the Chairman rested on the proposition that he had to follow precedent and could not decide the matter on its merits. I know, because I was the researcher who produced them (and indeed spotted the opportunity to disrupt the government of the day.)

The position taken by Mr Speaker Thomas when this came before the House was that procedural decisions could properly be taken on merits but that they did not constitute future precedent. Each decision had to be taken on its merits.
Mr Speaker Thomas quite plainly altered the way on which Speakers have to take decisions. Precedent has as a result lost some of its force. Speakers still have to act in conformity with the Standing Orders – as this Speaker has, for instance when he allowed the government to halt progress on the vote to approve the deal. However he does not have rigorously to follow precedent. Indeed anyone who tries to insist the he does are in danger of becoming a reductio ad absurdum in his or her own person – because to say precedent is binding is to go against the precedent set by Mr Speaker Thomas in 1977.

This is what had happened.

In 1976, the Labour government introduced the Scotland and Wales Bill. This Bill was abandoned after the government was defeated on 22nd February 1977 by 312 to 283 votes on a timetable (guillotine) motion.
Originally, the Scotland and Wales Bill contained no provision for referenda. The idea was initially raised in the House during the Second Reading Debate. As the Bill got into deeper and deeper trouble, the government decided that it would seek to guillotine debate but recognised that unless it first amended the Bill to provide for referenda in Scotland and Wales the guillotine motion would be defeated. In the event it was anyhow.
However before the ad referendum amendment was moved on 10th February 1977 there was a lengthy debate (under the form of points of order) on whether it was or was not possible to amend a Bill to make it operative ad referendum. Maurice Macmillan cited a list of precedents against allowing such amendment. He received considerable support across the House. The Chairman of Ways and Means, Colonel Oscar Murton, ruled that the 1975 referendum on membership of the EEC rendered previous precedents obsolete and gave the chair discretion, provoking sharp criticism from a previous Chair of Ways and Means, Betty Harvie Anderson.

Colonel Murton’s decision was challenged in a motion that was scheduled for debate in the House on 30 March 1977. Mr Speaker Thomas made a statement:

Before the debate begins on the motion in the name of the right hon. Member for Farnham (Mr. Macmillan)— That, in the opinion of this House, the ruling given by the Chairman of Ways and Means on Thursday, 10th February 1977, in selecting for debate in Committee of the whole House on the Scotland and Wales Bill the Procedure Motion, new Clause 40 and Amendment 679, all in the name of the Leader of the House, ought not to be cited or drawn into precedent on any future occasion. —I have a short statement to make to the House which I hope will be of some assistance. I am making this statement after consultation with the Chairman of Ways and Means and Mr. Deputy Speaker and with his full agreement.
If I had still been Chairman of Ways and Means, I should have taken exactly the same decision as was taken by the present Chairman of Ways and Means. In the circumstances surrounding the Committee stage of the Scotland and Wales Bill, I believe that the Chairman of Ways and Means was entirely correct in what he did. Nevertheless, I am of the firm opinion that the ruling made on that occasion does not of necessity apply to all future Bills. Every Bill has to be looked at on its merits. I am, therefore, ruling that the decision referred to in the motion is not one that is regarded as a binding precedent for future legislation.

This statement was accepted by Maurice Macmillan who withdrew his motion. I know from our discussions Maurice understood that by so doing he was acquiescing in a reduction in the weight to be given to precedent over merits. Nobody objected to his withdrawing the motion so the House must be presumed to have agreed to teh Speaker's statement.

If the MV goes against Govt, and a GE ensues (under either mech. of the FTPA), would Parliament also wish to revoke A50, so as not to the constrain the policy options of a future Govt? How could this be achieved? I worked with Govt customers for 30 of my 40 years in the tech. industry, including on some very large outsourcing transactions. New initiatives were sometimes tested against this consideration.