One Meaningful Vote Too Far: Is Bercow Right?

On Monday, the Speaker, John Bercow, has made a major intervention into the Brexit process. By ruling that the government cannot bring back the “same or substantially the same motion” any chance of Meaningful Vote III this week has practically disappeared.

Bercow stated:

“If the government wishes to bring forward a new proposition, which is neither the same nor substantially the same as that disposed of by the House on the 12th March, this would be entirely in order. 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.”

SUBSTANTIALLY DIFFERENT

Bercow explained that he was satisfied that the different circumstances between Meaningful Vote I (in January) and Meaningful Vote II (last week) were enough for it not to be substantially the same proposition. In particular, this was due to the negotiations that sought to clarify the operation of the Northern Irish backstop. There’s no indication that the government will be able to get a similar change this week – and certainly not before the European Council meeting on Thursday. Beyond that, what would qualify as substantially different is fundamentally unclear. 

IS BERCOW CORRECT?

On the face of it, Bercow’s ruling is within the scope of his discretion. It’s rather like a referee awarding a marginal penalty in a football match. You might not have given the penalty, but ‘you’ve seen them given’ in the past.

Yet, there are two reasons to doubt the decision. Firstly, last Thursday, the Commons passed a motion that would instruct the government to seek an extension if the deal was approved before 20th March. Implicitly, the will of the House as expressed in this motion can only be furthered if Meaningful Vote III is allowed to take place. Consequently, it can be argued that the Commons has already considered and approved the idea of Meaningful Vote III taking place this week. Under this view, whether the government should move it and how MPs vote remain political, rather than procedural, questions. Which is how it should be. Given that the government intended to hold Meaningful Vote III this week, Bercow might have shielded the deal from another comprehensive defeat.

The second argument is time. The unusual feature of Brexit is its time-limited nature. It’s rare for a major constitutional event to take place in such a short time-frame outside the control of Parliament. Independently of the first argument, Bercow could have legitimately taken the view that a Meaningful Vote III held this week would be substantially different to last week given that we are that bit closer to No Deal on 29th March, which despite being rejected by the Commons, continues to be the default legal position.

Essentially the question is a matter of judgment and Bercow has chosen to exercise his judgment in this way.

NAVIGATING BERCOW’S BLOCK?

For the government, there are several routes around Bercow’s intervention, but each of these have problems.

(1) A “Paving” Motion

If the implicit approval for Meaningful Vote III is insufficient, then the government could table a motion, stating that “despite the usual practice of the House” (or words to that effect) it wishes to seek approval for the deal a third time. If this gets a majority, then it becomes the will of the House. As Bercow states repeatedly, he views himself as a servant of the House, and so could not stand in the way of a third vote if that was the express wish of MPs. Yet, how far this takes forward the substance of the approving of the deal is debatable. A vote on this motion itself could become a sort of proxy meaningful vote; how MPs vote on  this “vote on a vote” might depend on their view of the deal itself.

(2) The European Union (Withdrawal Agreement) Bill (‘WAB’)

The approval by the Commons of the deal is a requirement of the European Union (Withdrawal) Act 2018, s 13, which lays down the process for the UK to approve the deal. Another requirement is that legislation is enacted to implement the deal in UK law. It is possible that WAB, the name for this legislation, could itself amend section 13 of the 2018 Act, dispensing with the need to have a meaningful vote in the first place. Although of course, just as with the paving motion above, whether this would work is ultimately dependent on MPs’ support for the deal itself. 

(3) Prorogation

Now things become more outlandish. Bercow’s ruling only applies during this parliamentary session. Using the power of prorogation, the government could choose to bring this session of Parliament to an end, and so start a new session. No vote in the Commons is required. By default, this would cause all legislation (including legislation preparing for Brexit) to be lost. A Queen’s Speech and a State Opening of Parliament would be required; however, some legislation could be carried over into the next session. This could all happen in a matter of days; indeed, in 1948, parliament was prorogued on 13th September, with a Queen’s Speech on 14th, with the aim of ensuring that the bill that became the Parliament Act 1949 was passed. However, given recent defeats, could the government be certain that it would win the vote on the Queen’s Speech? The Fixed-term Parliaments Act (more about which below), makes a general election more difficult, but not impossible.

EXTENDING BREXIT

As we get closer to March 29th without an approved deal, an extension has become increasingly likely. This has particularly been the case since the deal was rejected in January. The motion passed by the Commons last Thursday (discussed above) stated that if an agreement was approved by the 20th March, then at the European Council summit meeting on 21st, the government would seek an extension up to 30th June to prepare for Brexit (including passing the WAB). 

If the deal has not been agreed, by Thursday, then David Lidington stated that the government would “facilitate a process” to “allow the House to seek a majority on the way forward”. This is a reference to indicative votes, where a series of options would be presented to the Commons, with a longer extension sought by the government. Just how long is unclear. This is assuming that all Member States of the EU are willing to grant an extension in the first place.

FIXED-TERM PARLIAMENTS ACT: AN INTERESTING TWIST

In January, Jeremy Corbyn tabled the following motion: ‘That this House has no confidence in Her Majesty’s Government’. This was rejected by the Commons. The wording is laid down in the Fixed-term Parliaments Act 2011. If passed, the House of Commons would have had 14 days to pass the motion “That this House has confidence in Her Majesty’s Government”, if not there would have been a general election. If Corbyn wants to try again, he must use those same words because they are laid down by the Act.

Does Bercow’s decision today prevent Jeremy Corbyn from tabling another vote of confidence? Surely not. The passage of time from one vote to another might mean that the political circumstances are ‘substantially different’ to meet Bercow’s test, even though the balance of the parties remains unchanged (with 8 MPs leaving the party to form The Independent Group it has gotten worse). Yet, the argument of time (albeit in a more compressed timeframe) has been ignored with the Meaningful Vote process, which itself is also a requirement laid down in statute.

Ultimately, despite all this, Bercow’s decision is merely an example of a more fundamental problem. A minority government formed by a deeply divided Conservative Party, propped up with the support of the DUP, tasked with delivering Brexit has been forced into taking several detours into arcane constitutional territory that majority governments leave well alone. Given the problem, then for the government, support for “a deal” is the only solution.

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