Bernard Jenkin is Chair of PACAC (Public Administration and Constitutional Affairs Select Committee) and Member of Parliament for Harwich and North Essex. He writes in a personal capacity.
Many seem to assume that a vote in the Commons could stop or delay the UK leaving the EU on WTO terms without a Withdrawal Agreement, or else force a second referendum – but they never explain how this might happen.
Downing Street, in its desperate effort to scare Conservative MPs into supporting its discredited and discreditable EU Withdrawal Agreement, continues to suggest that, somehow, the Speaker can contrive some mere Commons procedure which would allow the Commons to delay or to stop Brexit. This contention would laughable, were the issue in dispute not so serious.
As we approach the so-called meaningful vote, the Commons Public Administration and Constitutional Affairs Committee (PACAC) has today issued a report, Status of Resolutions of the House of Commons. This follows our December report, which looked at the status and effect of confidence motions. Today’s report does not address the Brexit question directly, but some of our evidence and findings can leave no doubt about the limitations on the ability of the Commons to divert the UK from the course to leave the EU on March 29th.
The European Union (Withdrawal) Act 2018 sets the time and date when the UK leaves the EU, and this reflects EU law as defined by Article 50. The Withdrawal Act also repeals the 1972 Act which gives legislative effect to our EU membership. It also provides for continuity in UK law by incorporating all EU law as UK statute law from the day we leave. Unless the law is changed before March 29th, the UK will leave the EU on that date.
The evidence to our committee was stark. The Clerk of the Commons is Parliament’s highest constitutional authority. His status is on a par with the Cabinet Secretary. He said in his evidence to us that “a mere resolution cannot change the law. The only way we can change the law is by law.” He explained that Parliament does not have the power to “bind the Executive by mere resolution” nor can it “instruct Ministers”.
The Speaker has confirmed this doctrine. On 18 October 2017, he told the House that, while a resolution is an “expression of the view of the nation’s elected representatives in the House of Commons,” that it cannot direct Ministers and that “it is for Ministers in the Government to decide how to respond to the clearly expressed view of the House”.
PACAC’s report is clear that a government should respect Commons resolutions and that they should be treated seriously, even if the government in question cannot implement their terms as expressed, or chooses to disagree. But, generally, such resolutions have no binding or legal effect.
This is not to dismiss the sovereignty of Parliament, or suggest other than that the relationship between Parliament and Government lies at the heart of our democracy, and is the basis of public trust in our democratic institutions. However, our system is one of parliamentary government, not government by Parliament. PACAC’s report reflects this. How a government responds to a Commons resolution is a matter of politics, not law. This is all clearly relevant to what may or may not happen next in terms of Brexit.
Parliament is of course the sovereign law-making authority in our constitution. If Parliament lays down the law, it can do anything, including stopping our exit from the EU (assuming that the EU would cooperate, which it probably would), but this would require Parliament to enact fresh legislation.
In our system, government proposes and Parliament disposes. Yes, the government could simply give in to pressure, in this instance, and present such fresh legislation (for example, a new Bill to revoke Article 50).
But the Prime Minister has always been adamant about the UK leaving the EU as stipulated on March 29th, so there is nothing that even a majority of MPs can do to change that – short of ejecting the incumbent government and replacing it with a new one. Some Conservative rebels are now planning with opposition MPs to sabotage other pieces of government legislation, but this would not alter the law which sets the Brexit date.
A tiny number of ex-Remain Conservative MPs have threatened to resign the whip, but none have (yet) said they would bring down the Government. Nor should they. We were all elected as Conservatives to deliver the referendum result. We (nearly all) voted for the 2018 Withdrawal Act, including the date.
Parliament has spoken. It had the opportunity to stop Brexit, but it passed the Withdrawal Act which sets the March 29th date. The Act makes provision for the House to express opinions in the so-called “meaningful vote”, but there is no provision for the Commons to prevent Brexit with or without Withdrawal Agreement. The Conservative Remain rebels never even dared press such an idea. May again made the point clear on The Andrew Marr Show yesterday, “You can have two alternatives. You can have no deal, or you can have a deal”. She will not offer any third option.
The Act delivers the simple answer to the question put to the people on the referendum ballot paper. Parliament has legislated. Democracy has been served. For some MPs now to complain they did not intend to vote for what the Act says is rather lame. They may have held a different hope or expectation, but the Government gave no grounds for that. Parliament has approved the law. There is no democratic case for changing it.