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Chris White was Special Adviser to Patrick McLoughlin, when the latter served as Chief Whip, as well as to Andrew Lansley and William Hague when each served as Leader of the House. He is now Managing Director of Newington Communications.

Last week the Commons voted that it had confidence in the May Government, yet on Tuesday it will seek to wrest control from the executive, and let the Commons take charge.  This has the potential to test the UK constitution to destruction

The Commons’ attempt to seize control

Almost a dozen amendments have been tabled to the Government’s ‘neutral terms’ motion due for debate next week. Several of these seek to provide for a series of indicative votes – essentially a non-binding, advisory series of votes on a range of options that include Norway plus, Canada, No Deal, the current Government deal and so on.  Others seek to reject leaving the EU without a deal, or insist on an expiry date being added to the backstop. Some of these may not be selected for debate, or are likely to lose narrowly.

Most opposition and rebel Conservative MPs are coalescing around a combined amendment and Private Members’ Bill designed to remove the threat of No Deal. The European Union Withdrawal (no.3) Bill (The Cooper Bill) would mandate the Prime Minister to put a motion before the Commons on 26th February to seek to extend Article 50. If that vote was passed, the Prime Minister would be legally obliged to seek the extension from the EU27, although the EU would still have to agree for that to happen.

However for any Private Members Bill to pass, it must be given time – and Grieve, Cooper, Boles et al have given themselves a self-imposed deadline of 25th of February to pass a Bill through both the Commons and the Lords.  To do that requires the overturning of Standing Order 14 (1), which provides that Government business shall have precedence at every sitting (with certain exceptions like Opposition day debates).

The Cooper amendment now simply states that a Business of the House motion relating to the Cooper Bill shall stand as the first item of business on 5th February as long as ten MPs, elected to the House as members of four different parties (i.e. not currently those who hold the whip but who were elected as a Conservative MP in 2017) and two backers of the Bill, sign the motion.  This removes the loophole in the first draft, leaked over the weekend, which meant that the Conservative Party could have stymied the bill by withdrawing the whip from any MP who supported it.

Does it stand a chance of succeeding?

For the Cooper amendment to change standing orders to succeed, it requires a majority of the House to support it, and then to continue supporting it on 5th February when the backers intend for the Commons to pass all stages in a day.

Looking at the numbers in more detail, the Government won the recent no-confidence vote by 325-306.  Breaking this down, there were 635 MPs present (voted or were tellers) out of 639 eligible MPs. Those who were not present to vote included the independent MPs Ivan Lewis, John Woodcock, Paul Flynn, and Fiona Onasanya.

The amendment tabled by Cooper, has been signed by eight Conservative MPs (Morgan, Boles, Grieve, Bebb, Letwin, Lee, Djanogly, Vaizey) and also supported publicly by Anna Soubry and Sarah Wollaston, whilst Heidi Allen has also indicated her support through retweets of the draft of the Cooper Bill, meaning 11 publicly confirmed rebels (possibly as many as 18 if others such as Clarke, Greening, Neill and others join in).

If the four independents don’t vote again, then the Government will lose by at least three votes, possibly more:

Can the Bill be stopped?

The key to the Cooper Bill succeeding is if its coalition can stick together.  Boles, Cooper and Grieve have worked hard to remove the issues with the original draft.  By capturing time, and ensuring they push this through in a day, it means keeping the coalition together for just a single day.  The Bill would also have to be approved by the House of Lords, which would need to telescope its usual minimum intervals between each legislative stage, but given the pro-EU sentiment in the Lords, I doubt this would be a problem.

Observers have discussed two main areas which relate to Crown powers – money resolutions and Royal Assent – that might be used to stop the Bill.  With regard to money resolutions, one is only required if a Bill proposes spending public money on something that hasn’t previously been authorised by an Act of Parliament. Looking at the Cooper Bill, it is arguable that a money resolution is not needed to delay Article 50 – it merely requires the Prime Minister to apply to the EU27 for an extension to the deadline.  In any case, the House could resolve to amend Standing Orders 48 and 49 relating to money resolutions – such a step would be extraordinary, and Grieve himself has said that this would be a ‘constitutional step too far’.

The question of withholding Royal Assent – the Queen’s approval for a Bill passed by both Houses – is a more challenging topic.  Sir Stephen Laws, former First Parliamentary Counsel until 2012 (the most senior constitutional and Parliamentary civil servant in Government) has argued that it is possible, whilst Nick Barber, Fellow of Trinity College Oxford and a Lecturer in Constitutional Law, has said that it is not. This is a subject to which I intent to return to here should the Cooper amendment pass next week. Ultimately though, the Cooper Bill could well pass.

Constitutional crisis?

I can barely believe that I am typing the words ‘constitutional crisis’ at all.  Yet the fact is that Parliament is about to remove executive power from the Government, to which it has only just confirmed that it has confidence in, and MPs and Government are seriously considering using prerogative powers to overturn majority decisions in the Commons.

MPs are clearly astonished at the Government’s delays and unwillingness to deviate from Plan A, or even hold a series of indicative votes. Yet the Prime Minister continues on, trying to attach a limit to the backstop that we know the EU27 are against. I can understand the frustration of MPs, yet we are about to test the UK constitution to destruction.  Reportedly, Labour is concerned about the Cooper Bill and has described it as ‘constitutional arson’.

Everything that the Cooper amendment is seeking to do is undeniably within the Commons rule book. However, I fervently hope that it does not come to pass, and that Cooper, Boles, Grieve and the Government can return to the negotiating table or agree to hold indicative votes, because the next two weeks could change the dynamic of our constitution in a way that cannot be unpicked.

271 comments for: Chris White: The Cooper amendment threatens to damage the constitution in ways that would be very hard to repair

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