BREXIT UPDATE 14: Chaos and Uncertainty: Guest Post by Deborah Maccoby

March 20, 2019

In Uncategorized


In Brexit Update 13 — which discussed the motion and amendments tabled in the March 14 parliamentary debate on extension of the leaving date — I referred to the Bryant Amendment.  Tabled by the Labour MP Chris Bryant, it referred to the parliamentary rule book, which is known after its 19th century author, Sir Erskine May, as “Erskine May”.  The rule cited by Bryant goes back to 1604, early in the reign of James I.  As Bryant told the House of Commons during a brief speech in the March 14 debate:

“When James I became King in 1603….he summoned parliament, and that parliament became so fed up with MPs constantly bringing back issues on which it had already decided that the House expressly decided on 4 April 1604: ‘That a question being once made, and carried in the affirmative or negative, cannot be questioned again but must stand as a judgment of the House.’”  [1]

Bryant ended up withdrawing his amendment, however, because it became clear that it was the responsibility of the Speaker to pass judgment on the issue.  The parliamentary rule book is not fixed and dogmatic; it consists of a compilation of conventions, principles and precedents that require interpretation by the Speaker.

On Monday March 18, Bercow ruled that the Maybot cannot bring her deal back to Parliament for a third time unless it is “substantially changed”.  This is the relevant passage from “Erskine May”, as quoted by Bercow: “A motion or amendment which is the same, in substance, as a question which has been decided during a session may not be brought forward again during the same session….Whether the second motion is substantially the same as the first is finally a matter for the judgment of the Chair”.

It has been suggested that the government could get round this by ending the current session of Parliament and immediately beginning a new session.  This process, however, would take some time to organise; it would involve the consent of the Queen, who would have to open Parliament in an elaborate State ceremony, travelling to the House of Commons in a gold coach, wearing the State Crown and making a speech.  On two occasions, when snap elections were called, the Queen has taken part in a “dressed down”, low-key State Opening of Parliament; but there is no precedent for a State Opening called in order to get round a parliamentary ruling.  The Queen could withhold her consent, on the grounds that she was being exploited for political purposes.  An alternative proposal is that MPs vote to ignore the Speaker’s ruling on what is merely a convention, not a fixed rule; but there is no guarantee that they would vote in favour.[2]

Bercow’s ruling has been criticised in procedural terms on the grounds that the 1604 rule does not apply to an issue as important as the Withdrawal Agreement; and also on the grounds that – as described in Brexit Update 13 – the motion that was overwhelmingly passed by the House of Commons assumed that the deal would be put to the vote for a third time.  Here again are sections 2 and 3 of the motion:

“(2) agrees that, if the House has passed a resolution approving the negotiated Withdrawal Agreement and the Framework for the Future Relationship for the purpose of Section 13 (1) (b) of the European Union (Withdrawal) Act 2018 by 20 March 2019, then the Government will seek to agree with the European Union a one-off extension of the period specified in Article 50 (3) for a period ending on 30 June 2019 for the purpose of passing the necessary EU exit legislation and

(3) notes that, if the House has not passed a resolution approving the negotiated  Withdrawal Agreement and the Framework for the Future Relationship for the purposes of Section 13 (1) (b) of the European Union (Withdrawal) Act 2018 by 20 March 2019, then it is highly likely that the European Council at its meeting the following day would require a clear purpose for any extension, not least to determine its length, and that any extension beyond 30 June 2019 would require the United Kingdom to hold European Parliament elections in May 2019.”

Today (Wednesday March 20), the Maybot told the House of Commons, during Prime Minister’s Question Time, that she has written to Donald Tusk, the President of the European Council, to request a short delay of three months, ending on June 30.   She added that, if this short extension is granted, the government “intends to bring forward proposals for a third Meaningful Vote” – ie a third vote on her deal.  If the deal passes, she went on, the extension of time will be used to pass the necessary legislation; if the deal is again rejected, “the House will have to decide how to proceed”.   Jeremy Corbyn pointed out that the deal has been rejected twice already and that the Speaker has ruled that she cannot bring the same deal back during this session of Parliament without substantial changes; what significant changes, he asked, will there be?  May did not answer the question; she simply accused him of supporting a second referendum, the implication being that he is betraying Brexit.[3]

The Maybot is also continuing talks with the DUP, whom she regards as key to securing a majority for the deal if/when it comes to Parliament again; she believes that, if the DUP could be won over, others will follow.  She is said to be working on domestic guarantees that a distinction will not be made between Northern Ireland and the rest of the UK; and is also rumoured to have offered the DUP extra funding for Northern Ireland. [4]  But it seems that the DUP, fanatical Protestant fundamentalists though they are, at least have the virtue of sincere belief in their principles and cannot be bought off when it comes to the backstop.  They are said also to be reluctant to support the deal unless it looks as though it has a chance of passing; while other groups, such as the right wing Tory Brexiteers, are holding back from supporting the deal unless the DUP are prepared to back it.[5]  So the chances of the deal passing, if indeed it ever comes back to Parliament for a third time, are extremely slim.

The Independent on-line newspaper has news today of a “leaked internal EU diplomatic note” that rules out the June 30 extension that the Maybot is requesting:

“Any extension offered to the United Kingdom should either last until 23 May 2019 or should be significantly longer and require European elections.  This is the only way of protecting the functions of the EU institutions and their ability to take decisions…any other option (as for example an extension until 30 June 2019) would entail serious legal and political risks for the European Union and would import some of the current uncertainties in the United Kingdom into the EU27.”[6]

A two-month extension until May 23 could be too short for the Maybot’s plans;  though she could end up accepting it as the only alternative to a long delay – to which she made it clear today in the House of Commons she is utterly opposed. She said: “As Prime Minister, I am not prepared to delay Brexit any further than 30 June” — words that are being taken as a hint that, if the EU decides on a long extension, she will resign.  If the two-month leaving date is agreed, she will simply run down the clock again till May 23, potentially bringing back her deal over and over again in the doomed hope that, the closer the leaving date looms, MPs will vote for the deal as the only option apart from either No Deal or No Brexit.  It seems much more likely that the European Council will avoid this scenario by opting for a long extension, which could see a change of government or possibly a second referendum.

An Emergency Debate on the Brexit extension is taking place in the House of Commons this afternoon (Wednesday March 20).  And the European Council of Ministers is meeting tomorrow (Thursday March 21) for its special session on Brexit.    The next Brexit Update will report on the Emergency Debate, the decisions taken by the European Council and other developments in this fast–moving drama.