Tuesday, 19 March 2019

No surprise


If the government, and No.10 in particular, were taken by surprise by the Speaker’s statement in the Commons yesterday afternoon, then they simply haven’t been paying attention. As the Speaker explained, the issue was raised in a Point of Order by Angela Eagle last week, and several other members (notably Chris Bryant) drew attention to the well-established parliamentary rule that it is not permissible for bills or motions that have been decided upon by the House to be brought back before the House in the same parliamentary session.

Reporting of the Speaker’s statement has been very sketchy, and almost all the reports have omitted the careful explanation he gave for the opinion he has reached. The Speaker’s statement was prompted by Angela Eagle's Point of Order, and he also drew attention to the frequent application of the rule over the years (examples of which were given last week by Chris Bryant). As the Speaker observed, Members on both sides of the House, have expressed their concerns about the House being repeatedly asked to pronounce on the same fundamental proposition. An indication from the Speaker on the lines of yesterday’s statement was therefore a distinct possibility, and really ought to have caused no surprise.

Erskine May (the parliamentary bible) is absolutely clear about this: “A motion or an amendment which is the same, in substance, as a question which has been decided during a session may not be brought forward again during that same session.” It goes on to explain: “Attempts have been made to evade this rule by raising again, with verbal alterations, the essential portions of motions which have been negatived. Whether the second motion is substantially the same as the first is finally a matter for the judgment of the Chair.”

Although this rule dates back to 1604, it has been repeatedly invoked in the ensuing four centuries, and whilst a formal Speaker’s ruling has not been required for many years now, the rule is frequently applied on a day-to-day basis by the refusal of the Commons’ clerks to accept repetitive motions or Bills.

The Speaker reminded the House of the conduct of the government in this matter over the past three months. The first scheduled debate on the PM’s “deal” was due to take place on 11 December. However, on 10 December the vote was postponed after 164 speeches had already been made over three of the five days allotted for debate. That postponement was caused not by the Speaker or by the House, but by the Government. Indeed, the Speaker pointedout at the time that this was deeply discourteous to the House and he suggested that the permission of the House for that postponement should be sought. Regrettably, it was not.

After the first “meaningful vote” was lost on 15 January, by a margin of 230 votes (the largest in parliamentary history), a second meaningful vote was expected to take place in February, but once again there was a postponement. It finally happened only last Tuesday, 12 March, and the Government’s motion on the deal was again very heavily defeated. In the Speakers’ judgement, that second motion did not fall foul of the convention about matters already having been decided during the same Session, because it could be credibly argued that it was a different proposition from that already rejected by the House on 15 January. It contained a number of legal changes which the Government considered to be binding and which had been agreed with the European Union after intensive discussions. Moreover, the Government’s second meaningful vote motion was accompanied by the publication of three new documents—two issued jointly with the EU and a unilateral declaration from the UK not objected to by the EU. In procedural terms, it was therefore quite proper that the debate and the second vote took place last week. The Government responded to its defeat, as they had promised to do, by scheduling debates about a no-deal Brexit and an extension of Article 50 on 13 and 14 March respectively.

There have been rumours (so far unconfirmed) that a third, and even possibly a fourth, meaningful vote motion would be attempted. Hence the Speaker’s statement yesterday. The Speaker’s conclusion is this: If the Government wish to bring forward a new proposition that is neither the same nor substantially the same as that disposed of by the House on 12 March, that would be entirely in order. What the Government cannot legitimately do is to resubmit to the House the same proposition or substantially the same proposition as that of last week, which was rejected by 149 votes. This is the test which the Government must meet in order for the Speaker to rule that a third meaningful vote can legitimately be held in this parliamentary Session.

To suggest, as the Solicitor General did yesterday, that the Speaker’s stated opinion has caused a “constitutional crisis” is nonsense. The referee has simply blown the whistle on a professional foul. (As a senior and experienced lawyer, who is surely well-versed in parliamentary procedure, the Solicitor General really ought to know better than to make wild statements like this.)

The anger that has been expressed in some quarters (mainly from within government) is somewhat exaggerated, even perhaps synthetic, as it was becoming clear by yesterday afternoon that the government is unlikely to be able to get its ‘deal’ through the Commons even at the third attempt, and it appeared that in those circumstances the PM would not risk another humiliating defeat, and so would not bring her deal back to the Commons for a third time this week. Last week’s decision regarding a delay to Brexit did not depend on a further vote being held; it simply authorises the government, in the event of the deal not being passed by this Wednesday (for whatever reason), to seek an extension of the Article 50 process.

Reports suggest that Baldrick and the No.10 team have been racking their brains in an effort to dream up all sorts of cunning plans to circumvent the Speaker’s statement, but the obvious key to the situation is to change significantly the substance of the proposition that they wish to put before the Commons. The PM will have to go to Brussels on Thursday to seek a delay to Brexit, which will almost certainly have to be a long one, and a motion could be brought before the Commons next week that proposes a way forward in light of her discussions with the Council of Ministers. (I have previously pointed out that the EU will have to be convinced that there is a tangible reason for the delay – just wanting more time to continue an endless debate in parliament would not be a good enough reason.)

The options, however, in the extremely limited time that is now left before the 29 March deadline, are very limited. In the absence of an agreed postponement, revocation of the UK’s Article 50 notification will be the only means of stopping the clock if a car crash ‘no deal’ Brexit is to be avoided on 29 March.

UPDATE – 20 March (a.m.): If I were a cartoonist, I would be penning a cartoon this morning, showing Theresa May with her hand on the handle of a gaming machine labelled "MV3", staring at it and shouting “I WILL win this time! I WILL!” (and perhaps there might be a caption below the cartoon - "Problem Gambler") I won’t bother to enumerate all of the many obstacles she would have to overcome to win by this means, but the first is actually persuading the EU tomorrow that she can win in this way. Otherwise, even a short delay would serve no purpose whatsoever. Then (assuming the EU does agree to a short extension of time) next week she would have to persuade the Speaker that there really is some significant change in the proposition she wants to put back before the Commons. (Really???). Or she would have to persuade parliament to suspend the rule against repeated votes on the same proposal, which they might not be prepared to do. This really is a cunning plan that could only have been dreamed up by Baldrick. And so the pantomime drags on.

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[My wife thinks there is too much about Brexit in this blog (although she strongly agrees with my views on Brexit). But Brexit really is far too important to ignore, and it is now taking up so much governmental and parliamentary attention that not much else is going on at the moment. This will obviously change if or when things become a bit clearer, and ministers can once again pay attention to other pressing matters. You may rest assured that I will certainly cover any new developments in planning law that occur in the meantime, but I make no apology for the amount of attention I am giving to Brexit at the moment, and especially this week, and probably (I expect) next week.]

© MARTIN H GOODALL

4 comments:

  1. Well said. I was watching parliament when the point of order was made, so was equally baffled when the media and the government claimed it was a surprise

    Obviously they had been paying zero attention to proceedings and ought to check Hansard!

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  2. Bercow was correctly following convention when he refused to allow MV3 to be put to a vote. However, he has been inconsistent in how he has applied the rules.

    With the Grieve Amendment in January (after a widely-reported private meeting he had with Grieve) he allowed an amendable motion to be put forward, which should only be put forward by a Minister. This caused uproar at the time and was against the advice given by the senior parliamentary advisor.

    He also departed from his own previous advice when he refused to allow the Second Referendum Amendment. This was supported by 127 members across three parties, so had widespread support.

    Taken together, these three recent decisions by Bercow show that he is capable of departing from Erskine May when it suits him. By common consent, all three moves distinctly advance the cause of those MPs pushing for Remain. Bercow and - according to a sticker in his wifes’ car - his wife, are both firmly in the Remain camp.

    Naturally there are strongly-held opinions on both sides, but a disinterested view of all the Parliamentary machinations going do not show Bercow in a good light. The Speaker should be unbiased and concerned with the efficient running of business, but by his decisions, the present incumbent is bringing the Office into disrepute.

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    1. If you analyse John Bercow’s performance as Speaker, not only in relation to Brexit but throughout his Speakership, the consistent theme has been his determination to uphold the interests of the House of Commons, and of back-benchers in particular, as against the desire of the Executive to push their policies through parliament with the minimum of scrutiny or debate. This is the key to his actions on Brexit, as on a wide variety of other issues.

      A.Gilbert’s objection to the Speaker’s actions is very similar to allegations that the BBC is biased (whether one way or the other). Bias, quite frankly, is in the eye of the beholder. What he criticises as inconsistency in applying the rules seems to me to be simply the Speaker’s continuing efforts to prevent the Executive riding roughshod over the Legislature, especially when the government does not have a parliamentary majority, and opinions within the House of Commons are widely divergent.

      [Incidentally, I see no objection to a similarly worded amendment to one that was previously rejected being proposed to a DIFFERENT motion. If passed, such an amendment would result in a different substantive motion, compared with a previous motion to which a similarly worded amendment may have been proposed.]

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  3. Where Holden Caulfield would go for "phony", a lawyer opts for "synthetic"! I like it, thanks Martin.

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