A legal professor and constitutional expert weighs up the possibilities aheadby Sionaidh Douglas-Scott / January 16, 2019 / Leave a comment
Given that Theresa May’s Brexit Withdrawal Agreement was subject to a crushing defeat in the Commons last night, it might look as if parliament is “taking control” of Brexit. A majority of 230 voted against the deal—the biggest defeat for any government in modern times. But does this translate into parliament being able to mandate changes to Brexit policy? That is less certain.
Of course everybody wants to know what will happen next. I will discuss what seem at least to be feasible developments, along with their essential legal or constitutional dimensions.
We know that the opposition has tabled a vote of No Confidence to be held on Wednesday. It is likely to be lost because the DUP, who are supporting the government in a confidence and supply agreement, have said they will not vote against the government. In any case, motions of no confidence do not have a very high success rate (although they tend to be more successful when lodged against a minority government). However, if Corbyn were to win the vote (and to win he would need a simple majority of MPs, ie at least 326 votes) then this would lead to a general election (under the Fixed-term Parliaments Act) if no new government could be formed within 14 days.
If Corbyn loses that vote, the government remains in office, and (thanks to the “Grieve amendment” successfully tabled last week), the government now only has three working days to return to make a statement to parliament on how it intends to proceed, and not 21 as is stated in the EU (Withdrawal) Act 2018 (EUWA). That difference matters, because time is truly running down on the Brexit clock, and much remains to be done.
So, if the government wins the confidence vote, and Theresa May chooses not to resign (she cannot be challenged from within her own party for 11 months, following the unsuccessful challenge against her by Tory MPs in December 2018) what could then happen?
Some possible next steps
The following are legal and constitutional possibilities, but most of them are dependent on political will, so that creates uncertainty. Even the constitutional position is unclear, given that the British Constitution is not codified, but made up in part of a…