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.

No-one is talking about the latest plan from Oliver Letwin. On any normal day a critic might say that was a good thing, but perhaps not given last night’s statement from the Prime Minister…

After 15 separate indicative votes and divisions on the Prime Minister’s deal, all we know is that the Commons is very good at saying “no” to things, and not very good at saying “yes”.  The result of Monday night’s indicative votes must have been a body blow for MPs seeking to take control. The only thing that the Commons as a whole can agree on is that the UK should not leave without a deal, by 400 votes to 160.

The latest Letwin plan

If the Commons can only agree on one plan, then that’s the only game in town for the group of MPs who have removed Government control of the Order Paper.  Instead of another round of indicative votes to try and narrow down an option, or trying to legislate for something, Letwin and Yvette Cooper have tabled a Bill against No Deal.  That Bill has already been tabled, and would do the following:

  • Seek to rule out No Deal on 12th April;
  • Restrict the Prime Minister’s discretion about whether and when to seek a further Article 50 extension;
  • The day after Royal Assent, the Prime Minister would have to table a motion for consideration in the Commons. This motion would set a date specifying the length of the extension, and would be amendable;
  • If this is approved, the Prime Minister would be legally required to seek the extension from the EU.

The Bill will have all of its stages considered in a single day.  MPs will first debate the Business motion, which applies limits to the consideration of the different stages of the Bill.  This debate will last around four hours between 1pm and 4pm, and there will then be a vote. Should this then pass, MPs will have less than five hours to debate Second Reading, Committee of the Whole House, Report and Third Reading, finishing at 10pm.

Once the Bill passes the Commons, it would then go to the Lords for consideration, probably on Friday.  Although there is no programming (the limits on debate as outlined above), peers are in control of their own business, and given the vastly pro-European nature of the House, it is likely this will succeed and Parliament will send the Bill for Royal Assent next week.

What precedent is there for this?

On rare occasions, in times of great urgency, the Commons has concertinaed legislation in a single day.  The Official Secrets Act was passed in just a few minutes in 1911 – apparently the Minister explained “in two sentences…that the measure should be passed”, whilst Committee, Report and Third Reading sailed by without a single intervention. Clearly this is a different situation, but the precedent exists for all stages to be debated in a day – certainly other Bills have been debated in a very short space of time.

However there are significant issues with proper scrutiny of a Bill taken in such a short space of time. No amendments can be tabled to the Bill until mid afternoon, when the Business of the House motion has been approved. Indeed it seems hard to see how MPs can properly scrutinise the Bill, or have time to debate the content of the Bill in less than five hours.

Can it be stopped?

Sir Stephen Laws, the Government’s chief legislative adviser in the civil service between 2006 and 2012 has argued that it is possible for Ministers to advise the Queen to refuse Royal Assent, and has also questioned whether the Government can reject a Money Resolution – effectively when the Commons seeks the Government’s permission for a charge against public funds.

On the latter point, it is by no means certain that the Bill needs a Money Resolution – I expect that it will not.

On the issue of Royal Assent, Laws is conflating two constitutional conventions – the need for the Queen to heed ministerial advice, and that the Queen has a constitutional duty to give Royal Assent to Bills passed by Parliament.

Of the two, it is the latter which is the cornerstone of parliamentary sovereignty, and has operated without question for centuries. If, as Laws suggests, a veto was possible, it would effectively be arguing that Parliamentary Sovereignty is subject to a Government veto, which is clearly incorrect.

MPs are in control of their own rules and Standing Orders – if a majority vote for this, then it will be legal, regardless of how much one might object to the content.  When I last wrote about this, Labour were reportedly describing this as ‘constitutional arson’, yet those objections have disappeared the closer we get to 12th April.

The holes in the plan

The biggest hole in the plan is that Parliament can only bind the Government in seeking an extension from the EU. It cannot negotiate on behalf of the country, so if the EU says no, or attaches conditions, or does not agree to the date as specified in the motion, it has no provision for any of these eventualities and is entirely silent.

Equally, if the EU washes its hands of the UK and is determined to go for No Deal, the Bill does not anticipate this eventuality – over half the Labour party now want to revoke Article 50 in the event of No Deal, yet the Act surprisingly doesn’t include this provision. Perhaps it is because there is no majority for this in the House, and that only nine Conservative MPs (not including Oliver Letwin) have voted for this.

What next?

Nine days to 12th April and the potential no deal date, and we are still no nearer to knowing what exactly will happen next Friday.  It is likely that the Commons will bind the Government’s hands in seeking an extension, but as we saw last night, the Prime Minister is determined to seek an extension and not to leave the EU without a deal.

This may feel somewhat ‘after the Lord Mayor’s show’, but it will further constrain the Prime Minister’s room for manoeuvre, and if successful, it will dramatically alter the balance of power between the executive and Parliament.  Some will argue that is for the better, some that it is a constitutional outrage. What is certain is that the reverberations of this will have far reaching consequences for our political system that will last long beyond Brexit.