The Speaker of the House of Commons, John Bercow, has indicated that, in accordance with a longstanding rule of Parliamentary procedure, the government is unable to bring the EU Withdrawal Agreement back to the House for a third vote. In doing so, he has strayed beyond the limits of precedent, and therefore of his authority, and has provoked a minor constitutional crisis.
The Brexit policy of the UK government can be stated simply: to keep bringing back to Parliament the Withdrawal Agreement it negotiated with the EU until the House of Commons eventually decides to accept it. So far, the Agreement has been voted on and rejected twice. The government wants there to be a third vote. And, if it loses that, there will certainly be a fourth, and even a fifth.
The announcement by the Speaker of the House of Commons on 18 March 2019 that no further vote can take place in this session of Parliament is of constitutional significance because – while superficially a decision on an arcane point of Parliamentary procedure – it amounts in substance to a veto by him of the main policy of the elected government, with which he has now placed himself in direct opposition.
To justify his approach, the Speaker appealed to historical precedent and Parliamentary convention. But he has strayed far beyond the limits of any legal or constitutional map. Whatever his motives, he is now engaging in procedural innovation for which there is no basis in law or past practice. In doing so, he runs the risk of turning the current political sclerosis over Brexit into a genuine constitutional crisis.
The Political Context
To be clear, I hold no brief for the policy of this government. The Withdrawal Agreement, for reasons I have developed at length (here) represents one of the most abject failures of statecraft in modern British history. The policy of returning it to Parliament repeatedly, in the hope that it will eventually pass for want of any viable alternative, is a wretched and embarrassing dereliction of leadership.
Theresa May, by her own admission, had one overriding responsibility in this Parliament – to negotiate terms for exiting the EU that would commend themselves to a majority in the House of Commons, so that the UK could leave the EU in a managed fashion and in accordance with the outcome of the 2016 referendum. In this she has failed. Parliament has twice rejected her Withdrawal Agreement, each time by a substantial margin.
Politics is the art of the possible. Its high-level practitioners understand that it depends on compromise, engagement, the skill of persuasion, an ability to reach consensus, being flexible in the face of events, and showing adaptability in the face of defeat. A politician who is principled holds the line on her core beliefs, but reaches across the aisle to give them practical effect. Skilled politicians learn how to work within the political system – to bend so that their core political principles do not break.
But Theresa May would rather break than bend. In consequence her government is now offering only a desperate anti-politics of relentlessness, attrition, inflexibility, and bovine adherence to a sole and unchanging policy. So far from amounting to conduct of high principle, this is finding its natural expression in clumsy political bribes and attempted backroom deals. It is the antithesis of the political adroitness required by the situation in which the country finds itself.
The Prime Minister sought a huge mandate in the 2017 general election precisely so that she could dictate outcomes without having to engage in the practical politics to which, to a degree unusual in those who have risen to such high office, she is so clearly unsuited by ability and temperament.
In normal circumstances, any Prime Minister who had failed this manifestly would have paid the ultimate political price. But divisions in her own party, and equivalent divisions and inadequacies of leadership in the Opposition, have conspired to keep her in office and allow the government to stagger on, badly wounded but somehow still alive.
So it was that, within 24 hours of losing the second ‘meaningful vote’ on the Withdrawal Agreement (12 March), the government indicated its intention to have a third vote on exactly the same document within a few days (20 March).
The Speaker Intervenes
On 18 March, the Speaker of the Commons, John Bercow, made a formal statement on the possibility of a third vote. He quoted the rule in Erskine May – the bible of Parliamentary procedure – which reads as follows:
‘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.‘ (24th ed, page 397)
Relying on this, Bercow’s conclusion on the third vote was stark: ‘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.‘ The effect of this, which was not notified to the Prime Minister in advance, has been to put the government into a tailspin, and generate talk of how the rule might possibly be circumvented.
But was Bercow right? There are four reasons for concluding that he went much too far.
(1) The Role of the Convention
The rule cited in Erskine May is a convention of Parliamentary procedure. It is not written into the provisions of the official rule book, the Standing Orders of the House of Commons, and it cannot override them.
Conventions, by definition, are mutable and adaptive – they serve as a guide, not a cage. The formal rules make clear (see Standing Orders 14 and 27) that government business takes precedence in the House.
(2) The Scope of the Convention
The convention is said to date from 1604, and in the twelve historical instances cited by Erskine May in which it has been applied – cases in which the Speaker intervened to prevent the repetition of a vote that had already taken place, all of them occurring during the period from 1840 to 1920 – none provides an example of a Speaker preventing important government business from being brought to a vote of the House. Each instance is concerned only with motions by private members which duplicated the effect of previous motions on which there had been a division.
No analogy can be found in these precedents for the situation to which Speaker Bercow now seeks to apply them. They are concerned only with the regulation of individual MPs’ conduct and the use they make of Parliamentary time, not with the policy of the elected government as embodied in the business it chooses to bring before the House.
(3) The Contemporary Relevance of the Convention
Taken at face value, the convention as cited by Erskine May is very poorly adapted to contemporary circumstances. As expressed, the test that must be applied relates only to the content of the motion and not to the context in which it is brought. What happens if the motion is substantively the same but the circumstances (or Parliament’s knowledge of them) have materially changed?
It is not difficult to think of examples of votes that Parliament may wish to revisit if new information becomes available or new events occur. Indeed one of these may arise in the next week if the EU-27 refuse to extend the Article 50 notice period in accordance with the request approved by Parliament, or are prepared only to offer an unhelpfully short, or overly long, extension. Should Parliament really be precluded from revisiting its prior decision in these circumstances?
Taken strictly, the convention makes no provision for such cases. In a Commons debate of July 1844 the point was raised expressly, after the Speaker ruled that a motion could not come back before the House for a second time, resulting in the following exchange:
Mr Hume: But, Sir, may not a Motion be renewed under new circumstances?
The Speaker: The House having once come to a decision on a specific Motion, it cannot be renewed. When a proposition is made and negatived, the House cannot again entertain one to the same effect.
(Hansard, HC Debates, 18 July 1844, Vol. 76, c.1021)
Is it just possible that the world tended to change less quickly, and information about it was slower to reach Parliament, in 1604 (or even in 1844)? In his Commons statement, Bercow suggested that the absence of any recorded use of the convention since 1920 was ‘attributable not to the discontinuation of the convention but to general compliance with it‘. Perhaps. But an alternative reading of why a convention might have been applied twelve times in an 80 year period and then not once in the next century is that it has had its day and is no longer fit for purpose.
Moreover, Bercow himself offered a hint that he cannot live with the strict consequences of his own ruling. When asked by more than one Conservative MP if he would entertain a motion to hold a second Brexit referendum, given that this had already been rejected in two previous Commons’ votes, he equivocated:
‘…everything depends on the circumstance. Is the proposition fundamentally the same, or can it be argued that, in the circumstances of the time, it is a different proposition? I would have to look at that in the circumstances of the time. Is it a relevant factor to be considered? Of course it is…‘ (Hansard, HC Debates, 18 March 2019, c.784)
Bercow is, of course, suspected of being sympathetic to the cause of a second referendum and not the entirely neutral arbiter a Speaker should be. Whether or not this is true, once new circumstances are introduced into the equation, we are no longer in the territory of the convention as cited by Erskine May, but of something entirely different.
That may be the right outcome. But if something is to have the force of a convention, it cannot be a new invention – the convention relied upon by the Speaker either applies or it does not, and it cannot be deployed only where he wishes it.
(4) Parliament’s Explicit Treatment of the Third Vote
Parliament had already considered the likelihood of a third vote, and declined to rule it out. Conventions do not take precedence over Parliament’s express decisions on a voting procedure it is content to adopt.
After losing the second vote on 12 March, the government moved quickly to indicate its intention to hold a third. This was explicitly written into the motion passed by the House on 14 March. That motion authorised the government to seek an extension of the Article 50 notice period – Parliament having rejected both the ‘deal’ and ‘no-deal’ options on the previous two days – and it reads in part as follows:
That this House:
…agrees that, if the House has 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 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…
(Hansard, HC Debates, 14 March 2019, c.647-651)
By the terms of this motion, the House of Commons, by a large majority of 210, expressly envisaged that the government was likely to bring the Withdrawal Agreement back for a third vote before 20 March. It is implicit that Parliament both acknowledged and did not object to that course of action, and at least arguable that it agreed to or sanctioned it.
Moreover, prior to passing this motion the House of Commons voted to reject a number of amendments that would have removed any wording about a third vote.
In addition, a further amendment brought by Chris Bryant MP (Lab, Rhondda) would have added the following words to the motion:
‘[This House]…notes that Erksine May states that a motion or an amendment which is the same, in substance, as a question which has been decided in the affirmative or negative during the current session may not be brought forward again during that session; and therefore orders the Government not to move a further motion asking the House to approve the Withdrawal Agreement and framework for the future partnership that the house declined to approve on 15 January 2019 and 12 March 2019.‘
So Bryant’s amendment explicitly referenced the convention cited in Erskine May, and would have prevented the government from bringing the Withdrawal Agreement back to Parliament. Bryant presented it with an amusing and well-received speech (Hansard, HC Debates, 14 March 2019, c.613-614) in which he referred to several of the precedents from the 19th and early-20th Centuries later relied on by Bercow.
The amendment, it might be thought, was a paradox – if the convention remained valid and applicable, why did the government need to be ordered by a motion of the House not to bring the Withdrawal Agreement to a third vote? In any event, Bryant did not push his amendment to a vote, presumably on the basis that he expected to lose it.
To summarise, on 14 March the House of Commons passed by a large majority a motion expressly envisaging and arguably sanctioning a third vote, while rejecting a number of amendments that would have removed the wording which had this effect. At the same time the sponsor of an amendment which would have precluded a third vote, explicitly by reference to the Erskine May convention, declined to press it to a division.
This is not a neutral or inconsequential set of facts. Taken together, it indicates clearly that Parliament was aware of the prospect of a third vote, accepted that it would be likely to take place within the immediate future, and declined any opportunity to prevent it.
In the light of this explicit Parliamentary treatment of the issue in motions either passed or rejected only four days before his statement, it is surprising that Bercow considered that a procedural convention – of no recent application and supported by no directly-relevant precedent – could be used to override the ability of the government to manage the business of the House.
Indeed, one of the more remarkable features of Bercow’s statement to the Commons was that he did not feel it necessary to mention these issues at all, if only to explain why they caused him no difficulty. And one of the more surprising features of the debate that followed the statement – which says little for the quality of our current Parliamentarians – is that no MP identified the point and raised it in questions. Silence, however, does not negate its significance.
Conclusion
The government deserves whatever criticism comes its way for pursuing the Withdrawal Agreement in spite of its two heavy defeats in Parliament. Its policy of seeking to repeat the question until it gets the ‘right’ answer, and the absence of a credible Plan B or even any apparent desire to identify one, represents a lamentable failure of basic political skill and leadership.
Nonetheless, whatever sanction is applied to this conduct should be political in nature. In due course, the government will have to answer to Parliament and to the electorate for its mishandling of the situation.
But the deep unattractiveness of the approach that the government is adopting provides no justification for the unprecedented action now being taken by the Speaker to prevent it from pursuing its policy by placing before the House of Commons the business that it wishes to invite the House to transact. It is a fundamental and important constitutional principle that the democratically-elected government of the day should be able to do this.
For all of the reasons given above, the Speaker’s reliance on convention does not provide sufficient basis for the radical innovation on which he has now embarked.
There will no doubt, in the coming days, be no shortage of clever schemes to find a work-around for his ruling, so that the business of government can still be transacted. We can also expect Bercow to tack and trim, and attempt to row back from the full implications of the position he has adopted. There will be some very British compromises.
But for the moment the Speaker, and therefore the country, has overstepped the limits of the constitutional map, and is in need of a compass to chart a retreat to safer ground.
Public Law & Regulation 