30 Aug 2019

Future historians, and possibly even contemporary judges, may consider the House of Commons' voting record to be one of the more puzzling aspects of Brexit. Despite lengthy and increasingly fractious debates, a survey of voting figures would suggest that Parliamentarians on all sides were, at root, content with the prospect of a "no deal" Brexit:

  • The EU (Withdrawal) Act 2017 passed its third reading in the House of Commons by a margin of 494 to 122, authorising the government to serve the UK's Article 50 notice
  • The EU (Withdrawal) Act 2018 passed its third reading in the House of Commons by a margin of 324 to 295, including amendments introduced by the European Research Group (ERG) to lock in a "hard" or "no deal" Brexit as the legal default position
  • The Taxation (Cross Border Trade) Act 2018 passed its third reading in the House of Commons by a margin of 318 to 285, including ERG amendments which make any future customs union with the EU (including any arrangement under a withdrawal agreement) subject to full Parliamentary approval rather than an executive act
  • The government's negotiated Withdrawal Agreement and Political Declaration was repeatedly rejected, by historically striking margins of 432 to 202, 391 to 242 and 344 to 286.

Resolutions v legislation

That series of legislative votes underpin regular statements by Jacob Rees-Mogg and others that Brexit must occur, as a matter of law, on "exit day" whether or not there is a deal. That legislative position is unaffected by resolutions seeking to block a "no deal" outcome. A resolution might generate heat and headlines, but cannot override legislation.

More positively, a resolution might allow those seeking to block a "no deal" Brexit to seize temporary control of the House of Commons business schedule, allowing the opposition and backbenchers to bring forward legislative proposals. That route led to the successful passing of the Cooper-Letwin Act in April 2019, securing time for a resolution directing the Prime Minister to seek an extension to the Article 50 notice period and requiring the EU (Withdrawal) Act 2018 to be amended to reflect the new "exit day". That Act arguably allowed the House of Commons to register its opposition to a "no deal" Brexit, but its strict legal effect was much narrower. It merely extended the deadline. It did not affect the underlying legal position. Further, the Cooper-Letwin Act was a one-shot law. It is spent, and has no further effect on the government's negotiating position or future actions.

Although resolutions cannot override legislation, they might have an important role to play in securing further opportunities for opposition or backbench legislative proposals either for delay or (more fundamentally) to alter or reverse the current legal default. However, Crown agreement to the government's proposed suspension of Parliament mean that time is extremely short. Further, even if those opposing a "no deal" Brexit were able to secure time for non-government legislation, that Bill would have to clear both Houses of Parliament and receive royal assent. Even without the appointment of new pro-Brexit peers to the House of Lords, there would be ample opportunity in the upper house for delay or procedural obstruction. Consequently, while a resolution would be insufficient to alter the legal position, securing legislative change would itself present a major challenge.

The Brexit endgame

The only routes that remain open to those seeking to avert a "no deal" Brexit are either:

  1. To vote in favour of any Withdrawal Agreement that might be adopted or negotiated by the government.
  2. To secure a resolution followed by new primary legislation to alter the default legal position.

For the government, delivering on the Prime Minister's "do or die" commitment to leave the EU on 31 October 2019 is a much less daunting task. It is the default outcome. Further, it is a default outcome that could be ensured by acts of opposition. For example:

  • A vote of no confidence in the government would trigger a 14 day period within which attempt to form a new government might be made. There would be nothing to prevent the current government from using that time to seek a workable majority, and equally nothing to prevent it from merely allowing the time to run out. If no new government has been formed by the end of the 14 day period, then there would be an early election. However, in those circumstances the date of the election would, by virtue of Fixed Term Parliaments Act 2011, s 2(7) be "on the recommendation of the Prime Minister". It would therefore be entirely lawful for the government to call a general election on a date just before or just after "exit day". Indeed, it would be possible for the election to be called for Thursday 31 October 2019, with the polls closing just before the government can claim to have fully delivered on its Brexit promise, and before any significant adverse consequences (except, perhaps, on currency exchange rates) have landed. Crucially, Parliament would be dissolved (not merely prorogued) 17 working days before polling day. That would be accompanied by the usual civil service "purdah", during which government is obliged to hold to existing policies and legislative positions. "No deal" would represent that holding pattern
  • A legal challenge to the government's proposed period of suspension requires something more substantive than assertions of "constitutional outrage". Amendments made shortly before the summer recess to the Northern Ireland (Executive Formation etc) Act 2019 sought to ensure that Parliament would be in session through the crucial period in October by requiring the government to publish a report on progress in relation to the Northern Ireland executive body, and then to table a motion allowing the House of Commons to debate that report. Assuming that no executive body has been formed by then, the government is required to publish a report on 9 October 2019. However, the government has a period of five calendar days "beginning with the end of the day on which the report is laid before Parliament" for the required motion. Given that Parliament is due to be back in session on 14 October, the government ought to be able to deflect any challenge based on the Northern Ireland Act by assuring the court that they would be able to meet the Act's requirements. Consequently, a challenge based on the amendments designed to ensure that Parliament could not be sidelined during the crucial period would allow the government to demonstrate the lawfulness of its position
  • Opponents of a "no deal" Brexit might seek to use the Private Member's Bill procedure to advance legislation, using Parliamentary time that is conventionally not controlled by the government's business managers (and currently by Jacob Rees-Mogg as leader of the House). However, using time normally allocated for Private Member's Bills would require exceptional cross-party agreement and coordination through the Backbench Business Committee, and assistance from the Speaker. Even then, there would be major procedural barriers. Under Standing Order 14, a limited number of Fridays are allocated during each session for Private Members' Bills, with precedence initially based on the results of that session's ballot. Given that the current session has been in progress since 2017, automatic entitlement to time for Private Members' Bills has been exhausted. The House of Commons would have specifically to decide, by resolution, to sit on a further Friday to accommodate any new Bill
  • An alternative route might be available under Standing Order 57. However, assuming that the government's proposed suspension occurs, a new session would begin on 14 October 2019. That would, in effect, prevent any application for a Private Member's Bill under SO 57. MPs may only give notice under SO57 after the fifth Wednesday on which the House sits during a session. That will be after "exit day"
  • Even if a Private Member's Bill could be brought forward, it would be easily deflected or defeated unless accompanied by resolutions securing the time needed for all of its legislative stages in the House of Commons, and by coordination with the business managers in the House of Lords.

As the interim ruling of Lord Doherty in the Scottish Court of Session (30 August 2019) demonstrates, the government's decision to suspend Parliament is not easily susceptible to legal challenge. "No deal" Brexit remains the legal default position.