When I searched on Brexit just now, I saw such a rehash of what ought to be old stories that I thought there must be something wrong with Google. “May to focus on Irish backstop.” “May mulls amending Good Friday Agreement.” “U.K. Parliament Moves Closer to Stopping a No-Deal Brexit” And the body of a Guardian story has this blather:
Tory Brexit supporters alarmed by the prospect of a delay have hinted they could be won over in the coming weeks – if Theresa May can produce a serious concession from Brussels on the Irish backstop….
The Tory backbencher Andrew Murrison tabled an amendment to next Tuesday’s Brexit motion that insists on an expiry date to the backstop in the hope that it could allow MPs such as Bradley to demonstrate the level of parliamentary concern to both Downing Street and the EU.
Help me. As if no one noticed that May’s deal was voted down by a margin of 230?
The press is dignifying the barmy the idea that Parliament can take the steering wheel from the Government. Even though this issue has been discussed in comments, with our regulars providing explanations, it seemed worth making this issue a post topic, particularly since it’s going to come to the fore in the next week plus.
As David pointed out, the UK isn’t supposed to be where it is, with a weak, discredited government that isn’t merely soldiering on, but is refusing to abandon a position that Parliament has rejected on the highest-stakes issue of at least a generation. But Parliament cannot fix this problem by usurping the Government. It would need to replace the current Government with one more aligned with its views. But as we know, the Tories have been unable to defenestrate May, and they are unwilling to risk a general election. And now with so little time left, even if the EU were to give the maximum realistic extension (till June? early July?), the GE process would chew up so much time that there would be no net addition of Parliamentary days….and no assurance that a GE would produce any real change in the political configuration.
We’ll turn the mike over to Clive, who provided more detail on the Constitutional/procedural issues by e-mail. This is mildly tweaked from a series of messages. What triggered this discussion was one of the new unicorns, Yvette Cooper’s bill. As summarized in the Independent:
At the moment, if parliament fails to act, the UK will leave the EU on 29 March. Cooper’s bill says that, if a deal has not been approved by 7 March, the government would be required to seek an extension of the Article 50 deadline.* That would mean asking the EU to postpone the UK’s departure until the end of this year – and EU leaders have said they would agree to an extension if it were to hold another referendum.
We’ll put aside the fact that the EU has never indicated any willingness to extend Brexit to year end. Clive gives a Parliamentary tutorial to work up to why the idea that Parliament can order the Government to take an executive action is not on:
To understand why this is daft, it’s probably helpful to do a quick primer on the way the UK constitution works and the repeating constitutional democracy cycle:
- The Sovereign handed (I’ll skip over whether this was a volitional or a causative action; that’s a matter of history, but the result was the same) sovereignty of the country to Parliament
- The Sovereign dissolves Parliament (either at the expiry of the fixed term Parliament or else if 2/3rds of the MPs agree to dissolve it or else if there is a No Confidence vote in the existing government and there cannot be a new government formed in 14 days) and calls elections to elect MPs to a new Parliament
- The people elect MPs to Parliament
- MPs decide, usually (but not necessarily) along political party lines who can form a government which commands the confidence of the House of Commons — this is almost always the party with the most MPs but if, as is currently the case, if a single party cannot command a majority and win a confidence vote then they can either form a coalition or enter in to a Confidence and Supply agreement with one or more of the remaining other parties. The Conservative and Unionist Party entered into a Confidence and Supply Agreement with the Democratic Unionist Party in 2017, for example
- The Sovereign invites the party or parties who can command a majority in the Commons to forma government.
- The government governs via a combination of exercising the Royal Prerogative https://en.wikipedia.org/wiki/Royal_prerogative#United_Kingdom (“executive action” as it is more commonly known in modern times, along the same language as used in the US) and/or, where required, getting its bills passed as Acts of Parliament in Westminster.
- The House of Commons, MPs in other words, serve to scrutinise the government’s bills when presented by the government they (Parliament) formed. That government has bestowed on it the Royal Prerogative and the ability to advance legislation by dint of the fact that a majority of MPs voted it has confidence in it. MPs’ confidence, explicitly expressed, in the government creates and sustains that government.
- If a majority of MPs find they no longer support a government, they can pass a No Confidence motion and set in train events to either form a new government supported by the existing Parliament or, if this isn’t possible, dissolve the Parliament in favour of a new Parliament which can then, hopefully, form a new (supportable) government. Such a vote was held on 16/01/19 and the May administration passed it so remains the government of the UK.
- But what MPs cannot do is to both simultaneously sustain a particular government (via passing a Confidence motion) while at the same time try to put in place another — somehow “parallel” or “alternative” government — able to bring forward new legislation or exercise the Royal Prerogative such as by discussing and agreeing Treaties or Treaty provisions with foreign governments. Parliament (MPs) scrutinises proposed bills and if it doesn’t like them it can vote them down. But parliament cannot act as a government and advance new legislation or exercise the Royal Prerogative / Executive Action.So, even if somehow Cooper’s bill is passed by Parliament, Parliament cannot bind the government to exercise it. If it tries, and the government refuses, then it will either (after a while) end up in the Supreme Court who are not about to overturn 500+ years of constitutional norms or Parliament will have to remove the government — the government that it itself created and facilitates — via the long-standing and accepted method of a No Confidence motion.
Normally, we don’t get into such crazy, dumb third-world level governance crises. The Speaker of the House has, historically, understood why things are done the way things are done and what happens if anyone tries to do anything that will inevitably throw a spanner into the machinery of government. But the current Speaker, Bercow, seems to have lost all sense of caution and, having gotten drunk on his own sense of power and influence, apparent intent on adding “constitutional crises” to our current predicament. As if things aren’t difficult enough with “only” having a political crisis to worry about. The conclusion, if Cooper’s bill is allowed to get parliamentary time in the face of the government not wishing to allocate it, is a foregone conclusion — it would be ruled unconstitutional.
I suspect the Clerk to the Commons will have told the Speaker that, if he doesn’t kill Cooper’s bill, he’ll almost certainly face moves to remove him from office because the constitutional position on the (un-) allowability of it is clear. So, despite press frothing at the mouth, it won’t go anywhere.
If Bercow is determined to force a crisis, however, he might try to do so. But his options are very limited once MPs cotton onto the fact that no functioning government (which is what a constitutional crisis will inevitably create) guarantees a No Deal Brexit because the EU27 will not know they are receiving instructions or requests from the UK “in line with the constitutional requirements” — he’ll have to back down or will be removed. He’ll know this so I doubt he’ll try to bluff it out and will quietly put the kibosh on Cooper’s bill.
If you are new to the discussion of Brexit procedural machinations, another reason the Government can exercise so much power is that it controls Parliamentary time, meaning the scheduling of which bills get considered, how much time there is for debate. We had a dramatic demonstration of that last week when May agreed to comply with Parliament’s legally non-binding request to submit an amendable motion to Parliament on what she planned to do after her Brexit smackdown. Right after she got past the no-confidence vote and before her agreed January 21 submission date, May made clear who was boss. She cancelled all Parliamentary Brexit business, meaning debates and votes, until January 29.
As Clive noted:
Yep, just watched live Andrea Leadsom (Leader of the House) in action. She was surgical. Like a parliamentary Cruella de Vil eyeing up some puppies, she just dismembered the opposition where it stood and they never saw it coming.
This was the big problem with the previous Dominic Grieve / Speaker ambush and the subsequent allowing of a non-government MP to amend House Business motions. You can get away with it once, using the element of surprise.
But once you’ve shown your hand, the government is on to you and fully prepared for you trying to pull the same stunt again. The clueless Labour Party, the too-clever by half Grieve and the delusions of grandeur Speaker forgot why these endless and apparently archaic rules and customs were adopted, not in a written constitution but adopted nonetheless, in first place.
In nearly half a millennia of the U.K. parliament, every conceivable procedural wheeze has been tried on by someone before. There was a reason that business motions were not conventionally amendable. This was because all the government of the day had to do was sit it out in something akin to the current US government shutdown and simply do nothing. Voila! Instant stalemate and gridlock. The government can’t get any business through the house but neither can the opposition do anything about it either.
Labour and the various commons factions can gripe all they want. But they can’t force the government to bring forward bills. The government can now say, with what they say being an incontrovertible fact, that until order is restored and the constitutional conventions respected and reinstated, they dare not risk bringing forward any legislation. For the legitimate fear anything could happen with any hijacking being, apparently, fair game.
Parliament is now locked in (and a lot of the locking in is of its own silly making) to May’s Brexit Sweatbox. The picking of the date for the Meaningful Vote motion (the 29th, with exactly two months to go) is May’s way of just rubbing their noses in it.
Oh, and in the highly unlikely event that May can’t stop what is called a “private Member’s bill,” meaning one introduced by an MP acting on his own, rather than on behalf of Government, from getting to the floor, you can be it won’t survive. Clive again:
Private Member’s bills can be scuppered by any member simply saying “object” — my mother in laws MP, scourge of the house (even the Ultras think he’s extreme, but you should see his constituency voters…) makes a habit of this https://www.bbc.co.uk/news/uk-politics-44496427
And thanks to a February break, as I read the Parliamentary calendar, there are 37 sitting days from the January 19 Meaningful Vote to Brexit Day (although May is threatening to cancel the holiday). The only way out of May’s sweatbox looks to be to remove her, and Corbyn threatened to keep lodging no confidence motions. But will MPs knuckle under to May, toss her out, or wast energy in Constitutional gambits which looked doomed to fail?