Yesterday evening’s Government defeat on the Finance Bill highlights a question especially pertinent now that Parliament has returned post-Christmas – namely, can MPs and Peers block Brexit.  And if so, how?

Remainers and Soft Brexiteers from both the major parties, as well as the Liberal Democrats and other smaller ones, have now made the first move in a procedural campaign against the Executive in hope of preventing a ‘no deal’ departure from the European Union.

Due to its nature as a ‘war of the rulebook’, it can be difficult for those unlearned in the mysteries of Erskine May to work out exactly what’s going on – a fact exploited by Downing Street, which is attempting simultaneously to persuade Brexiteer MPs that the alternative to the Withdrawal Agreement is No Brexit, and Remainers that the alternative is No Deal.

ConservativeHome has therefore attempted to puzzle out the procedural realities facing the Prime Minister and her opponents, both in the event that she wins the Meaningful Vote or loses it, to try and work out whether the Commons really can block a no-deal departure.

Winning the Meaningful Vote

On the face of it, this is the simplest path to an ‘orderly Brexit’. But even assuming that Theresa May can cobble together enough votes to pass the Meaningful Vote – which looks a long shot at the time of writing – the Government would still have several hurdles to overcome.

This is because it would need to pass a Withdrawal Agreement Bill to give legal effect to the deal. In strictly procedural terms, assuming that this was ‘walked in’ immediately after the Meaningful Vote, around mid-January, it might be possible to get it through the Commons by February recess. The Lords could then sit through recess in order to complete its passage in a timely manner.

Such a Bill would need to receive Royal Assent before exit day – ideally a couple of weeks before, in order to leave time for relevant statutory instruments (SIs) – but if it were progressing the Government would probably be able to secure a short extension of Article 50 in order to complete the process of bringing it into law.

But would its passage be orderly?  It really depends on the strength of whatever coalition the whips had managed to corral together to win the Meaningful Vote. Pushing for a deal with the backstop in its present form would immediately alienate the DUP, so the Government would have already lost its de facto majority in the Commons, even before Eurosceptic Tory rebels are factored in.

Therefore the Government would be dependent on a fairly substantial hypothetical bloc of opposition MPs, and would run the serious risk of having to accept some deeply unpalatable amendments in order to get the final bill over the line. Assuming that Labour, the SNP and the Liberal Democrats (plus the DUP) all whipped against, it’s not impossible that the Government could win the Meaningful Vote only to lose the Withdrawal Agreement Bill.

Result? The Government could try to legislate – again in collusion with opposition MPs – to somehow halt or delay Brexit, or we leave with the exit deal having no force in domestic law which, in this instance, would mean that it isn’t ratified and we leave without one.

Losing the Meaningful Vote

If the Government loses the Meaningful Vote (however many times it tables it) and then wants to proceed with Brexit, its only choice is some form of No Deal. As the UK’s exit from the European Union has already been legislated for in the EU Withdrawal Act, Brexit will occur by automatic process of law unless an alternative course is pro-actively and successfully pursued.

However, there are numerous pieces of legislation before Parliament which would make departure on such terms smoother and more orderly. As we saw yesterday evening, the Remainers’ strategy is to try to amend these bills in such a way as to rule out a no-deal outcome, or spook the Government into abandoning that course because it can’t pass the relevant legislation. These bills include:

  • Trade Bill.
  • Agriculture Bill.
  • Immigration and Social Security Co-ordination (EU Withdrawal) Bill.
  • Fisheries Bill.
  • Healthcare (International Arrangements) Bill.
  • Financial Services (Implementation of Legislation) Bill.
  • Several hundred SIs.

According to some sources, and contrary to some reports, the Government’s timetable for advancing this legislative agenda is in relatively good shape. Ministers have ‘triaged’ the list of bills and already got several key acts onto the statute book, including:

  • Taxation (Cross-border Trade) Act.
  • Sanctions and Anti-Money Laundering Act.
  • Nuclear Safeguards Act.
  • Haulage Permits and Trailer Registration Act.

They then did, a sift and have brought forward a second round of less-urgent legislation, which they hope to complete ahead of our departure in March.

Progress on statutory instruments (SIs) is also reportedly in hand, not least because in extremis there are mechanisms by which ministers can plead urgency to bypass the Secondary Legislation Scrutiny Committee. Furthermore, although the number of SIs which still need passing appears high compared to last year, many more – sometimes several thousand – have been passed in previous years.

The key question, in light of the parliamentary opposition, is the extent to which the Government is exposed on these bills. There are two parts to it.

  • Question 1) To what extent can MPs and peers amend Bills necessary for Brexit?

Under parliamentary convention, the Speaker will only accept amendments which fall within the ‘scope’ of a given Bill. The broader the issue a piece of legislation addresses, the greater the opportunity for amendments. Unsurprisingly, therefore, the Government has taken some pains to draft the no deal preparatory legislation as narrowly as possible.

This, combined with the poor politics of interfering in something like healthcare legislation, means that relatively little of the Government’s no-deal programme ought to be vulnerable to aggressive amendments.

This is one reason why the Remainers have broadened their campaign to other pieces of legislation, such as the Finance Bill, and that there is talk of doing things like docking ministers’ pay.

One hypothetical attracting particular excitement yesterday was the suggestion that the Commons could straight-up wrest control of the entire business from the Government by amending the standing orders and then passing a Private Members’ Bill (PMB) to force the Prime Minister to rescind Article 50 in the event that we reach the 29th of March without a deal.

However, a fearsome trinity of procedural sages – any reader interested in this topic really ought to follow Chris White, Nikki da Costa, and Christopher James on Twitter – seem quite convinced that it is impossible to seize control of the legislative agenda from the executive, and that, in any event, there aren’t any ways left in which to consider PMBs. And that even if neither of those things were true the backlog of pending PMBs is too great to be realistically bypassed. So we can probably afford to put this ‘game changer’ back in its box.

As for the actual no-deal legislation, the one possible point of vulnerability is the Trade Bill, which could return from the Lords freighted with amendments mandating that the Government seek a customs union, or another relevant outcome, which the Government would then have to try and dismantle in the Commons.

Another worry is that John Bercow casts aside any remaining vestige of respect for the traditional limitations of his role, not to mention the advice of the clerks, and starts to accept hostile amendments which would not in normal circumstances have been deemed in scope. Either circumstance leads us to…

  • Question 2) How important is it that these bills are in place by exit day?

If Remainers are able to thwart the Government’s programme, for example by forcing ministers to pull the Trade Bill lest they be forced to commit to Customs Union membership, the issue stops being a primarily legislative one and moves into the world of practicalities.

According to sources we have spoken to, there is very likely a good deal of ‘tolerance’ when it comes to getting a No Deal programme on the statute book. In the event that these bills haven’t received Royal Assent by exit day, their absence could often be ameliorated, at least in the short term, by work-arounds.

Once we had departed the European Union, moreover, any vexatious amendments would be rendered moot, so outstanding bills could probably be progressed relatively swiftly thereafter.

So can parliamentary guerrilla tactics block Brexit?

At the heart of the strategy being pursued by the Conservative Remainers and Soft Brexiteers, and allies in other parties, is yet another game of chicken. By depriving the Government of the legislation and authority needed for a smooth no-deal exit, they hope that the Prime Minister will lose her nerve and change course.

It’s important to emphasise that none of the tactics being discussed would actually force the Government to do that. If the Cabinet holds its nerve, no ‘Trump-style shutdown’ can prevent us leaving the EU on the 29th of March.

The only real way to force a change of course on Brexit is to replace the Government with another one prepared to rule out No Deal. The parliamentary arithmetic suggests that this is unlikely, not least because Jeremy Corbyn continues to keep Labour’s position vague and oppositional. Even were that to change, there are probably less than a handful of Conservative MPs prepared to countenance installing him in Downing Street, even for the sake of blocking ‘no deal’.

Absent that alternative, all the rebels can do is heap pressure on the Prime Minister and hope she buckles. There is no procedural trick that can force her hand.

Update: This happened.

“Another worry is that John Bercow casts aside any remaining vestige of respect for the traditional limitations of his role, not to mention the advice of the clerks, and starts to accept hostile amendments which would not in normal circumstances have been deemed in scope…”