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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.

Yesterday, Andrea Leadsom gave an Emergency Business Statement outlining changes to the week’s business, and Oliver Letwin sent out an email to MPs saying that he will be tabling an amendable business motion setting out the rules for today’s indicative votes debate.  The Leader of the House was being scrutinised at the Despatch Box about matters that are not in her control, whilst the MP in control of today’s debate was not.  The creation of this ‘shadow executive’ is both fascinating and troubling.

What has happened?

On Monday night, the Commons voted to pass an amendment tabled by Letwin. For over a hundred years, the Commons has enshrined in its Standing Orders that “government business shall have precedence at every sitting.”  Instead, the Letwin amendment ensures that there will be a series of indicative votes on Wednesday, subject to the passing of a ‘business motion’ that specifies how the debate will work.

How will the process work?

MPs will now have the space to debate and express their view on what the UK’s exit from the EU should look like.  They will get a ballot paper, which could include the following options:

  • Revoking Article 50.
  • The Prime Minister’s deal.
  • Canada style free trade agreement.
  • Customs Union and Single Market.
  • Common Market 2.0.
  • Norway style close partnership with the EU.
  • No Deal.
  • Second referendum.

MPs will get to vote on all the options at once – with a simple ‘yes’ and ‘no’, rather than a ranking system, or a series of run offs.  It is unclear whether or not these will be free votes.  Importantly, the Speaker will decide which options go on the ballot paper. Given the timing of the debate, he will have to decide, prior to MPs agreeing its terms, which options should be listed.

The result will be declared on Wednesday after 90 minutes of counting, during which the Government will be permitted to debate its SI on extending Article 50, in order to tidy up the UK statute book and bring it into line with the already amended International law.

What will happen next?

It looks as though today’s votes will be used to narrow down the options, before a further debate next Monday (assuming that a Third Meaningful Vote hasn’t been carried by then), since the motion captures time for further debate.

If there is a majority for one of the options, what will the Government do?  Theresa May said during her statement to the Commons on Monday that “I cannot commit the Government to delivering the outcome of any votes held by the House”. This presages an extraordinary situation in which the House may vote for, say, Common Market 2.0 or a Norway-style partnership, but the Prime Minister declines to implement it as it is incompatible with Government policy.

This would then leave the House with a few options.

  • Contempt of Parliament:  Undoubtedly, the Government would then be found in contempt of Parliament, with May hauled before the House to explain why she is refusing to implement the will of the House.  This would make for stormy proceedings, but it is unclear what penalties the House could impose, and it could not through motions bind the Government to follow its instructions: remember, only legislation is binding.
  • No confidence motion in the Government: The House could vote on another no-confidence motion in the Government.  However, it is unlikely that the arithmetic has changed that much in the intervening weeks since the last one: Conservative MPs don’t want an election, and even that new force, the Independent Group, doesn’t want one either, and has said so publicly.
  • Meaningful Vote 3: Jacob Rees-Mogg, Michael Fabricant, Rehman Chishti and a handful of others have now said that they are prepared to vote for the Prime Minister’s deal rather than see the prospect of any form of Brexit slip between their fingers.  Other Conservative MPs, such as Mark Francois, have taken an ‘over my dead body’ view, and still refuse to support it. The DUP may be in the balance. Regardless, there would need to be a majority in the House in the first place to ensure that the Government can get around the Speaker’s ruling that the Commons cannot consider an identical motion again.  The EU has also said that the extension until May 22 is contingent on the Commons approving the Withdrawal Agreement this week – otherwise the extension will be limited until April 12 for the UK to provide an alternative way forward.  If my reading of this is correct, next week could be too late for a third go at the Meaningful Vote.
  • MPs take more control: The legal default under international and EU law is that the UK will leave the EU without a deal on April 12, or has until May 22 if it passes the Withdrawal Agreement. With the prospect of No Deal getting closer, it may be that MPs decide to pass legislation to compel the Government to follow a particular course of action.

As above, the Business Motion as tabled at 4pm yesterday states that, if successfully passed today, Monday April 1st will be available for MPs to use should they need it. Currently, there is no clarity over what that date is to be used for.  It could be either to further refine the outcome of today’s indicative votes, or to push through legislation on a preferred option.

Conclusion

This week has seen Parliament grab control, overturning 140 years of Government precedence, and has serious implications for the practices of responsible government.  However, it is important to point out that MPs have the right to amend their procedures and Standing Orders, and a majority in the House has consented to do this.

We are here because the Government and the Prime Minister are being buffeted on the Brexit high seas, first swept one way by the DUP and the ERG, then pulled the other by the Opposition and pro-Remain Conservative rebels.  Without a majority in the Commons, and with no majority for either no-deal or the existing deal, the Commons was always likely to take this step – and this is potentially the first to removing even more executive power from the Government.  It would have been far better for the Government to accept the Letwin amendment, or provide government time to work with the House, simply to ensure that government precedence at every sitting continues.

The implications of what is happebing are important to understand. On Brexit, the Government is now effectively in power but not in control, no longer able to table its own motions and schedule its own business. Failing to co-operate with the House has dramatically limited the Government’s room for manoeuvre, and leaves Ministers now as prisoners of the House.

Yet whilst there is now a majority in the House to hold indicative votes, it is questionable whether there a stable majority to pass legislation, and whether the House can come to a view on a preferred option.

88 comments for: Chris White: A guide to today’s indicative votes – and their significance, as the legislature seizes power from the executive

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