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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, less than two weeks before the UK is due, as matters stand, to exit the EU without a deal, John Bercow threw a large spanner into the Government’s plans by declaring that unless a “new proposition that is neither the same nor substantially the same” as the last Meaningful Vote is tabled, he will decline to allow the existing deal to be resubmitted.  It is unlikely that there will now be a further vote on the Government’s deal this week, certainly before the Prime Minister heads to Brussels to ask for an extension.

In justifying his ruling, the Speaker quoted extensively from Erskine May, the Parliamentary ‘Bible’, citing the long-established precedent that a Government can’t simply keep submitting the same motion again and again, and hope that the Commons will eventually cave in.
This precedent was examined by the Exiting the EU Committee back last year, where the committee asked the Clerk of the Commons, Sir David Natzler, this very question. He gave a very different interpretation:

“You will know there is a general rule against being asked to decide again on the same question in the same Session, but that rule is not designed to obstruct the will of the House. If it plainly was the will of the House, there are ways in which that could happen, yes… If it was exactly the same document and they came back three months later for another bite, I do not think the procedures of the House are designed to obstruct the necessary business of Government in that way in such a crucial thing.”

The Government has been relying on this evidence for resubmitting the existing deal a third time this week. Instead, the Government finds itself having to vault a new hurdle – the Speaker’s judgement – as to whether they will be allowed to have another vote on their deal.  And it appears to be a high bar.  In an answer to Hilary Benn, the Chair of the Exiting the EU Committee, he said that there had to be a “demonstrable change to the proposition”, stating that a change to the Attorney General’s opinion would be insufficient.  Instead, it must be “fundamentally different… in terms of substance.”

There are ways around this ruling, but none of them are easy.  The first would be to see what changes will occur following the Prime Minister’s negotiations at this week’s EU Summit. Adding substantive text to the motion to introduce a technical delay to the end of June, ruling out a further delay beyond that, might arguably be a “substantial change” to the deal, though knowing this Speaker, I wouldn’t like to be certain.

Another option would be to table a paving motion, which would ask the House’s leave to disapply precedent and, were this motion won, the Government could then resubmit the existing deal for a further vote. However, the Government lost the first two meaningful votes on the deal by the largest and fourth largest defeats in modern times.  Alternatively, the Government could introduce legislation, which would change the provisions of the EU Withdrawal Act, as well as enshrining in legislation that Ministers could resubmit a deal as many times as they wished.  Again, this move is unlikely for the simple reason that it is unlikely to command a majority throughout the passage of the Bill, and would take time.

The Solicitor General, Robert Buckland, surprisingly floated the prospect of proroguing Parliament – literally ending the Parliamentary session, launching a new Queen’s Speech and having the next Meaningful Vote as the first item of business.  As Parliament would be starting a new session, the rules on putting the same motion twice in a session clearly wouldn’t apply.  This end would certainly not be achievable before March 29th, requiring the Government to pass an Article 50 extension next week by means of a Statutory Instrument vote. In any event, I doubt whether the Queen would appreciate being dragged into politics in this way, and it would also require the Government to win a vote on the Queens’ Speech, which in turn would also require every Conservative and DUP MP to support it.

None of the options above are attractive, and probably either a substantive change to the deal, or a ‘notwithstanding’ motion are the ways forward to Government is most likely to attempt.

But what irks both the Government and a substantial proportion of MPs is the apparent lack of impartiality from the Speaker.
In his lengthy opening statement yesterday, at no point did he refer to the possibility of a paving motion to disapply precedent.  Instead he attacked the Government on a range of issues, such as pulling the first vote last year, and its discourtesy for trying such a wheeze on.

When challenged by Mark Francois as to whether the same double jeopardy rules would apply to a Cooper-Boles Bill to take control of the Parliamentary timetable, or by Robert Halfon about whether a second referendum vote could be brought back again, he declined to give a ruling, saying that it would depend on the “circumstances”.  So one rule for the Government, and a different one for everyone else…

And this isn’t the first time that the Speaker has done this.  Yesterday, he was quoting supposedly inflexible precedent from 1604, yet back in January I wrote about how he reinterpreted Erskine May to allow an amendment to be tabled by Dominic Grieve, which stated that “If we were guided only by precedent, manifestly nothing would would change”.  That ruling was clearly incorrect.

So the perennial question of whether the Conservative Party has confidence in the Speaker of the Commons has reared its head again. There is little that Conservative MPs can do about this – they don’t have the votes.  Instead the Government, and Conservative MPs, have to soldier on, but with Bills not being debated, and no clear way forward in sight, for how much longer can this go on?

104 comments for: Chris White: Brexit. May’s Commons options after Bercow’s ruling.

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