What exactly will MPs vote on? What changes if the government loses? And is there any guarantee that the vote will be “meaningful” at all? Your ultimate guide to a Very Important Moment in parliament, in 12 stepsby Tom Clark / October 21, 2018 / Leave a comment
Photo: Tim Ireland/PA Wire/PA Images For months on end, the whole of British politics has been gearing up for one almighty crunch: the moment when parliament gives a thumbs up—or a thumbs down—to the Brexit deal. Every politician and journalist knows that this will be a Very Important Moment, which could seal the fate of the prime minister, her government and perhaps the country too. Almost nobody, however, seems to know what is really involved in the so-called “meaningful vote”—what, exactly, will MPs vote on? Who, if anyone, will be in charge of the process? What actually changes if the government loses? And is there any guarantee that the vote will be “meaningful” at all? As a sense of the prime minister losing her grip on Westminster takes hold, this weekend there have been reports of jittery Conservative MPs beginning to get into active discussions about what gets voted on if and when the government’s plan goes down. Never before has quite so much turned on arcane points of parliamentary procedure. So Prospect has spoken to those rare constitutional whizzes that understand this stuff, including people who have been at the heart of fraught procedural decisions in parliament in the past, to give you a definitive guide to the meaning of “meaningful.” OK, so we never stop hearing about a “meaningful vote” on the Brexit deal. But what is it, and where did it come from? For all the Brexit brinkmanship, thus far the government has only lost two votes in total and only one truly significant vote on the floor of the Commons. This came last December, when former attorney general Dominic Grieve pushed an amendment to the EU Withdrawal Bill which stipulated that the eventual Withdrawal Agreement (as negotiated with the EU) could only be implemented once parliament had approved the deal in specific ways. Further flesh was added to the bones of the “meaningful vote” over the Summer. Although various amendments were overturned, withdrawn or seen off, the government eventually introduced its own which specified (in section 13 of the EU Withdrawal Act) that it cannot ratify the WA until the Commons has voted to approve this immediate “divorce agreement,” and also (and just as important) a political declaration on the outline of the UK’s future relations with the EU. (The latter might, for example, specify the rough parameters of a Canada, Norway or Chequers-style deal which the government and the EU would then be expected to hammer out after the UK had left). Hang on, does all this assume that May gets a deal? Yes, but the same legislation also specifies what will happen if we are facing a “no deal” exit, whether that arises because the prime minister either admits to defeat in the talks or has failed to secure any conclusion to them before 21st January next year. In this “no deal” world, a minister has to make a statement to the House setting out what the government will do, and move a take-it-or-leave it motion “taking note” of what has happened. That might sound like fiddling while Britain burns. But in the event of a defeat on this motion, there would certainly be immediate questions about whether the prime minister could survive, and—were she to fall—all eyes would turn to her successor and whether or not they would seek to change course, perhaps initially by asking Brussels to “stop the clock” to buy some time. So what’s this about No. 10 trying to force a “it’s my deal or no deal” choice on MPs? Over-excited Downing Street press officers (not to mention an overly-controlling prime minister) no doubt like the idea that the Commons will simply have to accept Theresa May’s putative agreement or else tumble over the no deal cliff. There was another flurry of speculation last week that this is what the government is plotting when a letter from Brexit Secretary Dominic Raab to the head of the Procedure Committee was published, which suggested that the parliamentary procedure used “must allow” for an “unequivocal” decision in favour of the deal which was “clear to the public.” For MPs hoping for big ticket amendments, such as one committing to a second referendum, this sounded like an ominous attempt to cut parliament out. Any of them casually listening to Raab on Sunday’s Andrew Marr Show will have been further infuriated when he suggested that because the government had seen off previous parliamentary votes on things like the single market and the customs union, “the time has passed” for such debates. But was he really closing anything down? A government win on the deal would certainly constitute the sort of “clear” conclusion that his letter states he would prefer. But his only pledge is to “allow” for an “unequivocal” result—that is not the same as guaranteeing one. The wheeze that might—in theory—allow the government to force a take-it-or-leave-it choice would be to table a so-called “neutral motion” in the form “this House takes note of the prime minister’s deal.” Were the motion tabled in this way, Commons Standing Order 24B would indeed limit scope for amendment. But such motions are ordinarily used for such pro forma purposes the House taking “note of the work of the Public Accounts Committee over the last year.” Inside and outside parliament there would be an almighty stink if the government tried to effect an enormous constitutional change in such a manner—or to pretend that this was “meaningful.” Furthermore, the Standing Orders of the Commons themselves can be amended by ordinary majority, and although rewriting these would be very difficult if the government were opposed, all sorts of things could become possible in an emergency that would shatter party discipline. Besides, and for all the controversy about Raab’s letter to the Procedure Committee, a better guide to what is likely to happen was provided in an annex he attached. It states that “the approval motion will be a substantive motion and therefore, under existing House procedures, will be amendable.” It is safe to presume that Raab—who is a conviction Leaver, as well as the responsible cabinet minister—put this in front of MPs on the advice of officials because this is indeed the plan. The country could still ultimately be forced to confront a this-deal-or-no-deal choice, but if that happens it will be because of the Article 50 clock—or the EU’s patience—running out. But May is deluded if she believes she can force parliament to this juncture through procedural clever-dickery. Does that mean MPs will have a free hand? No. The real significance of Raab’s letter (as opposed to the annex) is that it signalled that the government is determined to keep control of the order in which MPs will vote on things. Specifically, it wants to ensure that before MPs try and amend anything, they first get the chance to sign off on May’s deal—and thereby draw a line under the matter. This makes a lot of sense for the government: the Article 50 clock is ticking down, and some potential amendments might introduce uncertainty about whether the government had secured the parliamentary backing it needs to sign its deal, while others might be incompatible with a timetable it has committed to. This ordering would, however, be tricky to guarantee under a typical ministerial motion, because the House usually considers amendments to these before the motion itself. But there are, as detailed in Raab’s Annex, some brainwaves to get around this—such as adapting the usual opposition day procedure where the House first divides on (and typically defeats) a motion tabled by the opposition, and then votes on (and typically passes) a government amendment. If an opposition motion ever passes, however, the will of the House is deemed to have been expressed, and there is no need to consider amendments. Raab’s Annex floats the idea of adapting this procedure to allow the government bench to table a motion that works the same way . How could the Speaker affect proceedings? And, given the cloud currently hanging over him, how might the vote change if he were forced out? The Speaker could matter, because it falls to him to decide which amendments get called. That could be important, especially if there are several similar amendments and the drafting or the genesis of some would mean they are more likely to command support than others. On most procedural points, however, any Speaker should take account of the advice of the Clerk of the House, and any Speaker should be bound by the Standing Orders which govern how many amendments are considered in some circumstances, and would rule out amendments in the unlikely event that the government chanced its arm with a neutral “take note” motion. In the view of some very experienced parliamentary eyes, however, Speaker Bercow has on one occasion simply ignored the rules—allowing an extra amendment on the Queen’s Speech in 2013. Now that friends of Bercow have signalled he will be leaving office next summer, the Remainers who have been rallying to defend him in the wake of the Commons bullying crisis might hope that, since he is already on the way out, he will be emboldened to interpret the rules in their favour. Unless he were to actually bend the rules, however, his scope to affect the outcome is probably pretty limited. OK, so if the government’s motion passes, it will be home and dry, and the UK ratifies the deal. But what happens if it is lost? If the motion is simply voted down, and assuming for now that no replacement to its strategy were spelled out in any amendment, the government would be unable to ratify its deal. Beyond that, however, there is little certainty about what happens next. Time would continue to tick down on the EU’s clock, which—unless something changed—would result in the UK crashing out without a deal. So what might change? The only formal obligation on May would be to come back and explain her plans to the Commons after a week. If she could survive—a big if—she’d have a pretty free hand on how to proceed. One option, which would have the advantage that it would not necessarily need any further co-operation from the Commons or the EU would be to order the cabinet to put on tin hats, and start preparing for no deal. Another approach, which would have the advantage that it might be able to attract a cross-party majority in the Commons and thereby give some hope of sustaining the government for a longer time, would be to ask Brussels to press pause to allow time for a rethink, and then set about negotiating something like a Norway-style option of remaining in the single market, for at least a good few years and perhaps indefinitely. Another option, again, might be to “press pause” to allow time for a no deal vs Remain referendum. In practice, however, May’s authority would be shot, and she might lack the command of her party or the Commons as a whole to move towards any of these courses, all of which—after all—she has previously set herself against. Assuming the Conservative Party had enough instinct for self-preservation to avoid voting for an early general election, its MPs would be likely to vote no confidence in her, and force an early leadership election—possibly on an accelerated timetable—after which it would be for a new prime minister to select a new course. But seeing as most MPs don’t want no deal, they’re not going to hand May or her successor a free hand to go down that route are they? Probably not, which is why in the event that the government motion is lost, it is likely that some amendment to it would be carried—making, for example, approval conditional on a new referendum, or instructing the government to ask Brussels for more time with a view to renegotiating something specific, such as continuing single market membership. None of this is absolutely certain, however, because it is possible that a Commons majority against a putative Chequers-type deal would be made up of an unholy alliance of Remainers and Brexiteer ultras who would agree on little else. Even middle-of-the-road MPs may reject a second referendum on the grounds that it would be divisive, and resist single market membership as incompatible with the “control immigration” mandate they read into the referendum. So there is at least the potential for a real parliamentary impasse, where everything is rejected and nothing is agreed. In such circumstances, hopes of avoiding a no deal could well rely on some skilful and creative leadership from May or her successor. OK, so assuming a major amendment to the meaningful vote motion goes against the government, does that actually force the government’s hand? Good question! This is where May’s “my way or the highway” line becomes a bit more plausible. Assuming any carried amendment demanding that the clock be stopped or a fresh referendum be held is merely to the ministerial motion, then it is not enforceable in the courts. Under the Bill of Rights of 1689, it is for parliament and parliament alone to govern its own proceedings, which includes interpreting the consequences of its motions. So the courts would likely refuse to hear any case about the government failing to honour the motion, on the grounds that it would not be judiciable. If May and her ministers were really: a) determined to ignore the amendment; and, b) able to hang on politically despite this, then the meaningful vote could begin to look meaningless. Surely all this is inconceivable—May is not a dictator but a prime minister without a majority, so isn’t it daft to think she could just ignore parliament? Probably, but the calculation here is changed by the 2011 Fixed-term Parliaments Act. Traditionally, a showdown would soon have come: the prime minister might have reversed parliament’s vote by turning it into a “confidence motion” and carrying this with the help of MPs who would fall into line because of their desire to avoid a general election. Or, alternatively, the government could lose such a vote—or the Queen’s Speech or the Budget—at which point a dissolution would be triggered. But none of this any longer applies automatically, and thus we have had the DUP threatening to vote down May’s Budget while at the same time maintaining it would never want to risk booting the Conservatives out and letting Jeremy Corbyn in. Under the FTPA there will only be an early election if two-thirds of MPs vote for it, as they did last year, or if the Commons passes a no confidence motion in the government (in particular language specified in the Act) and no viable alternative government emerges within 14 days. If, for whatever reason, a majority in the Commons want to see off May’s policies but sustain her administration in office as a zombie government, then that is now an option that is open to them in a way which it wasn’t in the past. At a time of crisis, when a clear majority of MPs are against “risking” a Corbyn government, many MPs—and conceivably a majority—might well settle for this. Seeing as foreign affairs are the preserve of the executive, even such an undead May government would theoretically enjoy considerable latitude in relation to Europe: it could not be micro-managed by the Commons. In practice, however, raw political pressure—inside and outside the Palace of Westminster—would soon make it dangerous to disregard parliament. Without risking an election, Tory MPs could and probably would vote no confidence in her leadership in a party ballot, and inaugurate a contest for a successor. That still doesn’t sound watertight. Is there anything MPs can do if they want to be sure of binding May’s hand? Yes, legislate. And fortunately, there is an obvious vehicle to do so, since—as amended—the Withdrawal Act requires that the Withdrawal Agreement be implemented via fresh primary legislation, not merely regulations made by ministers. As a result, a Withdrawal Agreement and Implementation Bill is going to have to make its way through the House, and like any other law it would be possible to amend this. If, for example, it were amended to say that the bulk of its provisions only came into effect after assent had been given in a fresh referendum, then this would be a statutory requirement—enforceable in the courts. As in many Brexit end-game scenarios, however, there could still a mismatch between British and European law: the UK parliament can do nothing to bind the rest of the EU into continuing to treat the UK as a member state. While May insisted on writing a timetable into UK law for purely symbolic reasons, repealing this would be easy. Unless something changes, however, the UK’s membership really will—under international law, and more specifically the Article 50 procedure of the Treaty of Lisbon—simply cease on 29th March at 11pm GMT, potentially with no deal. So what, if anything, can parliament do to force a “stopping of the clock” to allow room for some sort of rethink? Many lawyers maintain London could “press pause” unilaterally, and everyone agrees that it could do so if Brussels agreed. But “London” in this context means the government, and not parliament. In other words, if parliament wants to stop Brexit or give time to adjust the approach, it must either use brute political pressure to change the government’s mind, or otherwise change the government. What lessons should MPs worried about Brexit in general, or a no deal Brexit in particular, take from all this? First of all, don’t worry about being caught out by some dastardly procedural trick—if a majority of MPs want something to change, they are very likely to have the chance not only to vote the government’s deal down, but also to table amendments. Don’t worry too much, either, about a change of Speaker. In the end, if the will is there in parliament to demand that the prime minister changes course, it will find a way to make itself heard. It is, however, worth being aware that the power of this voice will be more political than legal. Indeed, the meaning of a “meaningful vote” that goes against the government could be very different depending on whether the defeat is by two or three votes, which could be put down to a whipping accident and conceivably leave wiggle room for some sort of re-run, and a majority of, say, 30 which no government would be able to brush off for long. MPs wishing to thwart May’s Brexit plans therefore need to work to build as broad an alliance as possible. Any amendment to the government’s motion is unlikely to be judiciable, and even if parliament moved to change legislation instead, there is no automatic way for it to force Brussels to pay attention and interrupt the Article 50 process: only the government can do that. These realities inform the argument of Labour MPs who are sceptical of a second referendum, including the frontbencher Barry Gardiner and the former minister Caroline Flint, who have indicated that it might be necessary for the opposition to compromise with May in order to avoid the Brexit ultras saddling Britain with a ruinous no deal Brexit. They seem ready to accept No 10’s claims that this might be the only choice. The possibility of an accident—of tumbling “over the cliff”—cannot be entirely dismissed. And yet it seems much more likely that the Brexit end-game in domestic politics will be settled by raw political power play, rather than any procedural mis-step. The reason worried MPs can afford to be bold is that parliament retains political options for changing the government’s mind—or, if needs be, changing the government. The “traditional” means of forcing a government out—through an election after a no-confidence vote—has certainly become harder to accomplish under the Fixed-term Parliaments Act; this renders Labour’s talk of forcing May to go to the country pretty fanciful. But unhappy backbenchers shouldn’t imagine this strips them of influence: if anything, it does the opposite. For one thing, “traditional” no-confidence procedures were very rarely successful—only two elections have been triggered this way since the dawn of the 20th Century (1924 and 1979). More often, the whips would push turbulent MPs back into line by turning other questions into confidence motions—forcing rebels to choose between their conscience and a general election. Under the FTPA, they can no longer do that. Conservative Party rules provide one easy means of changing the prime minister, and under the FTPA there is surely no reason in principle why the Commons as a whole should not find some means of expressing no confidence in the prime minister personally, which would surely soon enough make life impossible for her. The most fundamental ground rule of the British constitution remains the same as it ever has been: the crown in parliament is law. When the crown, which in effect means the government of the day, forgets about the parliament bit, its power will not long endure.