12 Aug 2019

Since Boris Johnson's installation as Prime Minister the UK government's position has been that "exit day" will be 31 October 2019, and that a "no deal" Brexit must now be regarded as the working assumption. That working assumption accurately reflects the legal position. Parliament voted in favour of the UK giving notice to withdraw from the EU, and subsequently to provide for "exit day". As the law stands, the UK will cease to be a member state of the EU on 31 October 2019 whether or not a withdrawal agreement is in place. 

The government's new, harder, line on Brexit has sparked debate about the House of Commons' ability to avert a "no deal" exit, fuelled by Downing Street advisor Dominic Cummings' observation that there is no time to reverse the relevant legislation. Parliament is in recess until 3 September. A brief period of activity, normally reserved for the final stages of legislation held over from the summer, is followed by the UK party political conference season. From there, the clock ticks rapidly down to 31 October and, throughout that period, responsibility for scheduling business in the House of Commons rests with the newly-appointed Leader of the House, Jacob Rees-Mogg MP.

Government control over House of Commons business may be voluntarily ceded, for example to allow Fridays to be used for Private Members' Bills. In any other circumstances, backbench control of Parliamentary business can only arise in very limited, and rare, circumstances. In April 2019 the Cooper-Letwin Act was introduced following the successful backbench amendment of a motion that the government was obliged, under European Union (Withdrawal) Act 2018, to table. That motion, because of its particular statutory basis, was found to be capable of amendment. The Speaker allowed the relevant amendment to go to a vote, which overcame government opposition by a margin of one vote. 

The Cooper-Letwin Act was passed for a specific purpose, and is now spent. Any subsequent backbench attempt to secure control of business in the House of Commons must find a wholly new legislative or procedural basis. Crucially, there are no further requirements on the government to table amendable motions under European Union (Withdrawal) Act 2018. Consequently, backbench attention has shifted to Standing Order 24 (SO24), which allows backbench applications for debate on "a specific and important matter that should have urgent consideration". 

The procedure relating to SO24 is restrictive. It is designed to ensure that it applies only in truly exceptional circumstances, and to provide government business managers with ample opportunity to retain control of the Parliamentary calendar. Even if an application succeeds, it does not follow that the resulting debate will effect any change in the legal position.

SO24

A Member of Parliament seeking an urgent debate under SO24 must first satisfy the Speaker that there is a specific and urgent matter requiring debate. Application may be made only on specific days (Monday to Thursday while Parliament is in session), and by specified times (11.30am on Mondays, 10.00am on Tuesdays and Wednesdays and 08.15 on Thursdays). 

Even if those deadlines are met, and even if the Speaker is satisfied that the matter is urgent, it does not necessarily follow that debate will be allowed. The Speaker is bound "to have regard to the extent to which the matter concerns the administrative responsibilities of Ministers of the Crown or could come within the scope of ministerial action, and the probability of the matter being brought before the House in time by other means". Given his frequently-demonstrated knowledge of the procedures set out in Erskine May, it is highly likely that the Leader of the House would challenge an SO24 application on either, or both, of those grounds. 

If the Speaker were to be satisfied that there was no procedural barrier to debate, it would still be necessary to secure the leave of the House. The Member seeking the debate would have to make formal application in a speech to the House. That speech must be carefully calibrated to ensure that it is solely concerned with the question of whether there ought to be a debate. It must not stray into the debate itself. The application is strictly limited to three minutes, enforced by means of a countdown clock. 

If there are any objections, then leave of the House depends on the number of MPs willing to express support for the debate. If more than 40 MPs indicate support, then the debate may proceed. If more than 10 but fewer than 40 MPs show support, then the question must go to a full vote. 

Even if leave is given, and the debate proceeds, it does not lead easily or directly to a change of position. Debate is limited to three hours, and is based on a motion in "neutral terms". The usual form of motion is: "That this House has considered [the matter of]..". Standing Order 24B provides that a motion in neutral terms is incapable of amendment. Consequently, it is not open to backbench MPs to augment the motion by adding words requiring the government to take, or refrain from, any particular steps. 

Erskine May notes that "debate can be concluded by a division to indicate dissent from government policy". However, an indication of dissent from government policy would not override existing legislation. Indeed, it would be entirely open to the government to say that its policy is merely to carry through the firmly-expressed legislative will of Parliament. For that purpose it would not be necessary to rely solely on the referendum result. The full suite of Brexit-related laws, including the European Union (Withdrawal) Acts of 2017 and 2018, the Taxation (Cross Border Trade) Act 2018 and a substantial body of secondary legislation, assume and provide for exit on 31 October 2019 with or without a deal. 

A vote of no confidence?

The procedural hurdles and limited effect of a motion under SO24 might indicate that a vote of no confidence in the government would provide a surer route to averting a no deal Brexit. However, that approach would also face formidable obstacles – including the possibility that enough current or former Labour MPs might decline to vote with the opposition.

A motion of no confidence can be tabled only while Parliament is in session. Consequently, it must wait until at least early September. Under Fixed Term Parliaments Act 2011, the immediate consequence of a vote of no confidence is a 14 day period during which efforts can be made to form a new government capable of commanding a majority in the House of Commons. If no government is in place by the end of that period then a general election would be triggered. That would necessarily involve both dissolution of the current Parliament and imposition of the usual "purdah" rules on civil service activities. 

A general election triggered in those circumstances would necessarily take place close to, or shortly after, the 31 October "exit day". Guidance issued to civil servants in relation to the 2017 general election set out the general principle:

During the election period, the Government retains its responsibility to govern, and Ministers remain in charge of their departments. Essential business must be carried on. However, it is customary for Ministers to observe discretion in initiating any new action of a continuing or long term character. Decisions on matters of policy on which a new government might be expected to want the opportunity to take a different view from the present government should be postponed until after the election, provided that such postponement would not be detrimental to the national interest or wasteful of public money.

Applying those principles to a 2019 general election, discharge of the government's "responsibility to govern" and Ministerial control of departments would have to be based on the current state of the law. Equally, questions concerning national interest or the appropriate use of public money would also have to be assessed in the light of current legislative provisions, with 31 October 2019 as "exit day".

No deal?

It would take a seismic shift in the current political and administrative position to prevent, or even delay, a 31 October Brexit. Even if such a shift were to occur, the Parliamentary time available to amend or replace the relevant legislation is extremely limited, meaning that a fundamental shift could only come at a very late stage. In the meantime, business can only work with the available facts, and prepare for "no deal" as a foreseeable outcome.