Thursday, 28 March 2019

BREXIT – the Final Act?


I did warn you that I might very well return to Brexit before getting back to planning law, and this week I have every excuse for doing so. It is a subject that is too important to ignore.

A number of people, both inside and outside parliament, have asked whether it is right that MPs should wrest control of the proceedings from the government, and have suggested that this breaks the convention that ‘the executive proposes and Parliament disposes’. Abrogating this principle, they say, sets an unhealthy precedent. I respectfully disagree.

The House of Commons has always had complete control of its own procedure, and therefore it was entirely constitutional, and consistent with the House’s own rules, that the House voted by a clear majority on Monday to take control of its Order Paper to the limited extent that it has done this week. There is no constitutional convention that the executive has control of proceedings in parliament (and I speak as someone who, as a law student albeit many years ago now, specialised in constitutional and administrative law, and took a particular interest in parliamentary procedure – an interest that I have maintained ever since). Control of the House of Commons Order Paper by the executive is a practice that has been followed for some years past, not least because successive governments have generally had a good working majority and could therefore maintain complete control of Commons procedure by means of that majority, but it is not a centuries-old practice, and it is certainly not a constitutional convention.

Turning to the proceedings in the Commons yesterday, there seems to be widespread misunderstanding as to the nature and purpose of yesterday’s backbench-led debate. In the case of Tory Brexiteers, this was either wilful or feigned ignorance, as they were present when the House agreed this procedure, and so they have no excuse for pretending that it served no useful purpose or was in some way improper. It is surprising, on the other hand, that large sections of the press seem to have misunderstood the position too.

The important point is that yesterday’s debate was the first part of a two-stage process. Sir Oliver Letwin and his co-sponsors foresaw that it was entirely possible that none of the propositions that were put before the House of Commons yesterday would receive majority support. It was for that very reason that a second day’s debate was provided for in the business motion that was adopted by the House. In the meantime, the voting process yesterday served the useful purpose of testing the relative strength or weakness of support for the various options that were put forward. The second stage of the process, which is due to take place on Monday, will take at least two of the propositions that received the greatest measure of support, and will ask the Commons to vote specifically on those propositions.

Motion J, proposed by (among others) Ken Clarke, Hilary Benn, Sir Oliver Letwin and Yvette Cooper, which was lost by only 8 votes, would instruct the Government to ensure that any Withdrawal Agreement and Political Declaration negotiated with the EU must include, as a minimum, a commitment to negotiate a permanent and comprehensive UK-wide customs union with the EU; and enshrine this objective in primary legislation.

Motion M was proposed by Dame Margaret Beckett and others. It was lost by only 27 votes, and would provide that this House will not allow in this Parliament the implementation and ratification of any withdrawal agreement and any framework for the future relationship unless and until they have been approved by the people of the United Kingdom in a confirmatory public vote.

No other motion came this close to being accepted. The majority against “No Deal” was 240, and against a “managed No Deal” it was 283. The suggestion for a “Common Market 2.0” was defeated by 95 votes, and a proposal for an EEA/EFTA arrangement was rejected by 312 votes. Labour’s alternative Brexit failed to gain support by a margin of 70 votes.

Possibly the most important motion, which had all-party support (with the sole exception of the DUP), was a carefully worded ‘backstop motion’ proposed by Joanna Cherry QC. This would have provided that :

If, on the day before the end of the penultimate House of Commons sitting day before exit day, no Act of Parliament has been passed for the purposes of section 13(1)(d) of the Withdrawal Act, Her Majesty’s Government must immediately put a motion to the House asking it to approve ‘No Deal’ and, if the House does not give its approval, Her Majesty’s Government must ensure that the notice given to the European Council under Article 50, of the United Kingdom’s intention to withdraw from the European Union, is revoked in accordance with United Kingdom and European Union law.

This is a proposition (even though it was rejected by 109 votes) that may well merit much more careful consideration than it received yesterday. The point about this motion (as Dominic Grieve pointed out) is that it is there in extremis. It is not there to summarily revoke Article 50, but only to do it in the event of circumstances where there is no alternative and no ability to get an extension that might deliver a referendum, for example, or some other conclusion.

We shall have to see on Monday what (if anything) emerges from this exercise.

In the meantime, apparently not today but possibly tomorrow, the government may (or may not) attempt to bring back its draft Withdrawal Agreement for ‘Meaningful Vote 3’. Whilst 29 March is no longer Brexit Day, by virtue of the SI approved yesterday in addition to the agreement reached at the European Council last week, it remains the deadline for approving the draft Withdrawal Agreement. Failing such approval by tomorrow at the latest, the 12 April leaving date comes into effect, and this will mean a ‘No-Deal’ Brexit, unless the government puts forward a proposal for a much longer extension (of which more below) or revokes Article 50 altogether.

At present, the chances of the government getting its ‘deal’ approved before this deadline appear to be extremely slim. If the government doesn’t think it will win, then rather than risk another humiliating Commons defeat it may not bring it back to the Commons at all. There is also a risk that the ‘double jeopardy’ rule invoked by the Speaker could prevent the ‘deal’ being brought back for a third vote in any event, and finally there is the distinct possibility of its being defeated if it does come before the House again - The DUP cannot stomach the Irish back-stop, and this combined with the votes of a significant number of Brextremist head-bangers who will never vote for May’s deal will very likely sink it.

What then? Well, a car-crash ‘No Deal’ Brexit on 12 April is still a distinct possibility and, as things stand at the moment, the most likely outcome. If the government really does want to avoid this (and there is considerable uncertainty as to Theresa May’s intentions) then they could ask the EU for a significantly longer extension – at least 9 months, and quite possibly longer. But it is abundantly clear that this would be agreed by the EU only if this delay is for a specific purpose – i.e. either in order to organise a fresh referendum or to hold a General Election. Revocation of Article 50 before 12 April is the only other realistic option.

If it becomes apparent that May is intent on a kamikaze mission to deliver Brexit come what may, and is prepared to drive the bus over the cliff, if this is the only way of delivering her ardently yearned-for political legacy to the British people, then the only way of stopping it would be a full-blown cabinet and parliamentary revolt, aimed at removing her from office. This might necessitate a Commons confidence motion supported by at least a proportion of Tory MPs, followed by the interim appointment of a caretaker prime minister. It is undoubtedly a long shot, so maybe we should start hoarding the bog-rolls after all.

MARTIN H GOODALL

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