Maybe, if the politics is right

A recent Institute for Government report found that MPs no longer have a decisive route to stop No-Deal; so MPs will have to rely on politics. That view has attracted a degree of opprobrium from those who wish it were otherwise. But no concrete proposal has been put forward.  London4Europe Committee member and former Home Office senior civil servant Michael Romberg reviews the analysis.

UK parliament is weak by international standards

The traditional view of academics has been that the UK Parliament is at one end of the scale for weakness, with the US Congress at the other.

Revisionist authors argue that Westminster has more influence than it is given credit for: here two articles from the UCL Constitution Unit 15 September 2015 & 26 November 2015.

Certainly when I was a civil servant, we would – taking our cue from Ministers – worry about whether legislation or a policy was acceptable to Parliament. But, in a context of party discipline and majority governments, that hardly ever meant a fear of losing a vote. Rather it was a more nebulous desire of the governing party to avoid irritating its backbenchers too much.

Sovereignty of the Queen in parliament

The doctrine of Parliamentary sovereignty relates to sovereignty over the courts, not over the executive (though the idea quickly gets complicated).

The legal principle is really the Crown-in-Parliament. We have the fusion of the powers, not the separation. Some argue that membership of the EU has perhaps by accident brought about a much-needed modernisation of the constitution. 

Article 50: No-Deal is the default

Whether we are members of the EU depends on EU law: “The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification …, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”.

So the only ways to avoid No-deal Brexit on 31 October are:

• Agree the/a withdrawal agreement with a different date;
• Agree an extension with the EU;
• Revoke the article 50 notice.

Parliament’s power to require the Government to Act

Parliament has no power to conduct relations with foreign powers. Only the Crown-as-executive (the Government) may do that.

In theory Parliament has the power to pass a law requiring the Prime Minister to seek an extension or to revoke the Article 50 notice.  It could include penalties for failure.

(Even then a Prime Minister could subvert the law. S/he could rock up in Brussels, demand an extension and make clear that the UK would be disruptive. Might that lead the EU to refuse?)

Procedural problems

The difficulty is that Parliament has little control over its own agenda. The Institute for Government, in line with the standard academic view, finds “The extent of executive control over the agenda of the House of Commons is unusually high in Westminster compared with other similar legislatures.”.

It was in that context that the Institute ran through the options for stopping No-deal.

Parliament could pass a motion. But that would be non-binding. And the Government might anyway not make the debating time available.

Parliament is in control of its standing orders (see Mr Speaker’s response to Sir William Cash at Col 69 on 25 March 2019). So it could amend standing orders to enable a motion to be debated. That would still be non-binding.

Parliament could block the Government’s non-Brexit business. But there is nothing the Government cares so much about. Parliament could try to ensure that the Government runs out of money as a form of blackmail. But the Government might have enough funds. As a political move it could well backfire: “In order to avoid the possible chaos of No-deal we have created the certain chaos of stopping the Government paying your pensions”.

The procedural step that enabled the Yvette Cooper law to prevent No-deal is not available if the Government is intent on no-deal. A reminder that Parliament has to have the opportunity to pass a vote, not just a majority.

Amending Brexit-related legislation would work. But if the government is willing to have the chaotic or bizarre consequences of crashing out without transitional laws in place then a no-deal Brexit would not require new laws until after the event.

Liberal Democrat leadership contender Ed Davey MP has proposed making a humble address to the Queen (ie the Government) to stop Brexit. But even if successful, the Government would only be in contempt of Parliament if it failed to obey. Sanctions would be political.

There are several private members bills that call for a referendum, including from that indefatigable campaigner Geraint Davies MP, Gareth Thomas MP, Dominic Grieve MP, Lady Ludford. However in practice these bills cannot get anywhere without Government backing. 

MPs could sign an Early Day Motion for a referendum or against no-deal. In practice these motions are just an expression of views.

Speaker’s Flexibility

Perhaps there is some arcane point of procedure that could be found and then interpreted “flexibly”. The Speaker has made clear that he believes that MPs will get “a say” over No-Deal. But a say is not the same as passing a legally binding act of parliament.

The Institute for Government holds that the Speaker cannot guarantee that MPs can stop a No-Deal Brexit. Nick Boles MP thinks people are showing “extraordinary levels of complacency” about Parliament’s ability to stop No-Deal.

No Confidence

The only legally binding method that is known to be available is a vote of no confidence, followed by a new prime minister.

What unites all Conservatives and the DUP is their loathing of Jeremy Corbyn. So their support for a Corbyn – pro-Brexit, remember – government is hardly odds-on. Nor will they be enthusiastic for a general election.

A care-taker/ government of national unity Prime Minister would get round that. But why would Jeremy Corbyn back that if there was no clear route to power for him?

Moreover, a no-deal Prime Minister would still be prime minister even if there had to be a general election. So if the no-confidence motion happened late in the process, the Prime Minister could just let the clock tick on so that Britain crashes out half way through the campaign (but perhaps would seek an extension).

Could the Courts stop no-deal?

Perhaps, but no-one has yet suggested a rationale under which they would do so. No-deal was envisaged when Parliament authorized the triggering of article 50, since that is the default.

So that leaves politics

INFacts gave all that an optimistic gloss and headline – but had no concrete proposal. The BBC looked at the question and also found no clear path. 

So then we are left with influence. A Prime Minister who persists in a course of action against the clearly expressed wishes of the House of Commons is taking a gamble.

But then, only a gambler would find no-deal Brexit an appealing prospect.

Does Parliament even wish to stop no-deal? Most MPs are opposed. A motion calling for it was rejected by 400:160 on 27 March 2019.

But on actually taking steps to stop it, MPs have been markedly more ambivalent. Revocation to avoid no-deal was rejected 293:184 on 27 March and again on 1 April by 292:191. Not that anyone actually has a plan for revocation.

The Yvette Cooper bill to require an extension to avoid No-deal was passed only by one vote at a time when the Government also wanted an extension.

Labour’s position is against No-Deal. But some wonder whether Jeremy Corbyn would welcome the combination of Brexit and chaos for which the Conservatives would get the blame.

Conclusion

There is no clear path at the moment for Parliament to prevent a no-deal Brexit, especially if a Prime Minister sees legal and practical chaos as a price worth paying.

It is relatively easy for Parliament to find a way of expressing its wishes in a non-binding way.  Parliament’s influence will be greater if it knows what it wants instead.

So we have to keep on campaigning with MPs and with voters to bring them round to the idea of a referendum – a People’s Vote - to settle the question.

The London4Europe blogs page is edited by Nick Hopkinson, Vice-Chair. Articles on this page reflect the views of the author and not necessarily of London4Europe.