Can the UK government force through a No Deal Brexit?

Could a new UK Prime Minister in effect force through a No Deal Brexit without Parliament’s consent? This is yet another tortured question to emerge in the ongoing conflict over whether and on what basis Britain should leave the EU. There has been more than one cliffhanger in the conflict already, where the sides have been deadlocked, the deadline for Britain to leave has got very close and in the nick of time an extension has been agreed. The extensions have been intended to resolve the differences and find some sort of basis on which the UK can leave. The latest extension has been a long one, the conflict shows no sign of resolution and the Tories are now contemplating how to ensure that the UK does actually leave as promised after the 2016 referendum.

The Tory leadership election

Following PM May’s resignation an election in the Conservative Party is under way to choose a new leader who would, barring the unexpected, also become the new Prime Minister. Several contenders have included proposals to leave on the 31 October deadline whether an agreement is in place with the EU or not. The Tories feel under great pressure from both the right within their party, especially the predominantly pro-Brexit membership, but also from the new populist Brexit Party formed by Nigel Farage, who obtained 32% of the vote in the recent EU Parliament elections as against less than 10% for the Conservatives. Thus certain leader aspirants like Boris Johnson and Dominic Raab are wanting to risk a No Deal Brexit if necessary.

The Cooper Bill

Parliament has already voted against a No Deal Brexit, both in motions passed and most recently the passage of what is called the Cooper Bill. This bill was passed in extraordinary circumstances, in which a cross-party alliance of backbenchers led by Yvette Cooper and Oliver Letwin took control of Parliamentary business and secured passage of the bill against the government’s wishes, a rare assertion of the power of Parliamentary Sovereignty against the executive. In the bill, the UK government was obliged to obtain the consent of Parliament under the then-expected Withdrawal Bill giving effect to the Withdrawal Agreement (WA) that had been negotiated with the EU.

However, with the defeat of May’s deal and her subsequent resignation as Tory Party Leader, the Withdrawal Bill has effectively been dropped and therefore the hard-earned Cooper Bill is considered to be defunct. There are however now moves afoot to resurrect the Cooper measure.

The current position

According to Maddy Thimont Jack of the Institute for Government, what is called the “default position” is the most likely outcome. She argues that the a British Prime Minister would be able to force through a No Deal Brexit without needing to obtain further Parliamentary consent.

Under Article 50 of the Lisbon Treaty, and the most recent extension agreed by the European Council, Britain would leave the EU on 31 October 2019 without an agreement with the EU and be subject to the full rigours of a Third Nation status without any agreements in place for such matters as citizens rights, the Northern Irish border or trade concessions. General consensus by independent experts is that the result was be a massive upheaval in British trade and a deep recession.

The intention of Parliament was that it would be given a “meaningful vote” on the WA and that the PM could not leave the EU without obtaining Parliament’s consent to the WA. Yet without the WA, it would appear to currently lack further leverage on the government. This raises very important questions regarding the respective power of Parliament and the executive, an ongoing issue already referred to in earlier posts in this blog.

The commitment to the principle of Parliamentary consent

Judging by the reactions of other politicians on both sides, it looks very likely that an attempt to force through a No Deal Brexit without Parliament’s consent would be fiercely fought politically, which is a “practical politics” point of view, ie. can this in practice be done in the current political configuration?

It is also very controversial from a constitutional point of view. Observers are by no means in agreement with the Jack thesis outlined above, namely that there is now little that Parliament can do. Rather, others consider that forcing a No Deal Brexit without Parliamentary consent would provoke a major constitutional as well as a political crisis.

Jack Simpson Caird, writing for the Britain in a Changing Europe group, argues that it has already been made clear both by the Prime Minister in her actions, and by Parliament, that Britain should not leave without a deal and that a No Deal Brexit would fly in the face of fundamental consitutional values. He writes, “Whether or not a no deal exit was the legal default or not, the actions of MPs showed that to deliver a no deal exit, the Prime Minister and Government of the day would have to take a number of extraordinary constitutional steps. While legally possible, this would have been politically unacceptable precisely because they fly in the face of fundamental constitutional values.” The alternative for the executive would be to disengage from Parliament completely, which goes completely against the UK system of goverment and would render Britain ungovernable. “To give effect to the referendum result while preserving legal certainty, which is fundamental to the rule of law, requires a majority of MPs to support a transformational legislative programme. Unless the new Prime Minister can find such a majority, they are unlikely to succeed.”

Those who argue that the “default position” is what counts fail to fully grasp the nature of Britain’s system of government.

An Unwritten Constitution

Britain’s system of government rests on the principle of Parliamentary Sovereignty. This principle has evolved over the ages but rests ultimately on the outcome of the conflicts during the Stuart era in the 17th and early 18th century. It has been most recently asserted in the Gina Miller case (2017). Essentially the power of the executive rests on the principle of “the Queen in Parliament”, ie that both Her Majesty’s government and Parliament must agree for sovereignty to be exercised. For one to defy the other would break that fundamental rule. The executive needs the consent of Parliament to proceed, which is why for example a PM must hold the “confidence of the House”, eg in normal circumstances have a working majority, to form a government.

When one examines the options still available to Parliament below, this point becomes all the more forceful. However, another point also needs to be made, namely that the British Constitution is an unwritten one and is thus dependent on a consensus as to how it should function. Generally, and in May’s case, the consensus has traditionally favoured the principle of Parliamentary consent. If the executive chose to ignore that principle, then the consensus on which the Constitution would function would be violated.

Options

What are the options available to Parliament in this situation?

(1) The Speaker

Firstly Parliament is led by its Speaker, John Bercow, who while “the servant of the House” and elected, and removable, by them, is also in a sense its leader. Bercow is an activist Speaker and determined to defend the rights of Parliament. Most recently, this year, he has allowed the backbench Cooper-Letwin alliance to take over Parliamentary business, firstly to debates alternatives for Brexit and secondly to steer through the Cooper Bill. He has indicated that there is “no way” that Parliament will not be involved in decisions on Brexit and it is considered that he would find ways for Parliament to have a voice.

Parliament has a lot of power and there are a range of procedures not often used that can be called upon.

(2) Humble Address

It is technically possible for Parliament to pass a motion, the Humble Address, to require the executive to take the actions it desired. It is not for legislation, but it has most recently been used to compel government to release information. Faced with an imminent No Deal Brexit, it has been argued, Parliament could issue a Humble Address requiring the government to rescind Article 50. This would be a nuclear option, so to speak, and has been proposed by the LDP member and former minister Ed Davey.

(3) Legislation

The most obvious way to compel the government to comply would be to legislate, as Cooper and Letwin did with their Bill. However, the government controls the agenda through Standing Oders and the Cooper Bill was achieved by temporarily suspending the relevant standing order via an amendment and then passing amendments to government motions that were marked as amendable. The executive could simply choose not to introduce any measures until after 31 October, which would deprive Parliament of using this device again.

(4) Emergency debates

Parliament has various occasions when it can debate motions, such as Opposition Days, the 10 Minute rule, and emergency debates. However these are usually short debates and do not contain motions that are binding. That is not to say that the Speaker won’t treat a future motion in the same way.

(5) Refusal of supply

A new budget is due around the time of the next Brexit deadline, but this could be postponed as above. However, traditionally, it is another nuclear option, to refuse to pass the Budget, which would hit the ability of government to function.

(6) No Confidence motion

Much more realistically, the classic way that Parliament asserts itself against a truculent executive is to pass a motion of No Confidence. This can be done at any time. Under the terms of the Fixed Term Parliaments Act (2011), there would then be 14 days in which efforts woud have to be made to form an alternative government, and there is arguably a pro-Remain majority still in Parliament based on how MP’s voted in the 2016 referendum, and, failing that possibility, a General Election would have to be called.

For this to happen, given the slender majority enjoyed at present, enough MPs would need to rebel against their party whip. Several moderate Tories have said they would be willing to vote their government down if it attempted a No Deal Brexit. There is enough to balance out the few Labour MPs who favour Brexit, although even they are thought likely to oppose a No Deal.

(7) A General Election

Whether a General Election would produce a more moderate Parliament is very uncertain, given how almost evenly the country is split on Brexit, the very uncertain way a fragmented electorate would vote and how the electoral system might produce anomalous surprises in the present multi-party situation. As was seen recently in the Peterborough by-election, the vote was in a majority for Brexit parties, but because the Brexit Party performed well and came second, under the Simple Majority or First Past the Post system, the Brexit vote was split and the Labour candidate won the seat. Such complications make a General Election very unpredictable.

(8) Prorogation

On the other side, it has been suggested by Tory leadership hopefuls that Parliament be prorogued until after 31 October. Prorogation is used to end a Parliamentary session in order for the State Opening of the new session by the Queen and the Queen’s speech of the legisative programme for the new session. It is not used for political purposes, to deny Parliament a voice. The last time this was done, under James II to suspend laws against Catholics and Dissenters, the monarch rapidly lost support and fled the country during the Glorious Revolution of 1688. The precedents aren’t good.

Those who have suggested this option would do well to consider what in practical terms this would mean. For a start, the government would be faced with a massive outcry and action in the courts. They would lack a majority, since moderate Tories have said they oppose this action, and would have to try and govern through the massive upheaval that is expected under a No Deal scenario. They would have to face Parliament to secure extra powers. The action is very probably impractical and would likely be seen as a coup attempt with uncertain and potentially violent results. In short it would be the action of a highly irresponsible and probably desperate government who know they are in reality stuck.

Since an attempt at prorogation would already be a departure from constitutional practice, it could be that the Queen would refuse. In the end, her requirement is that the Prime Minister commands the confidence of the House.

(9) The Courts

Almost certainly this issue could end up in the Courts, since one side or the other would try to get a legal ruling for their position. This reinforces how much in our flexible unwritten constitution the courts have come to play an important, arbitrating part.

Again, legal opinion is divided, like so much over Brexit. One view is that the Supreme Court is, as with the Miller case above, likely to come down in favour of Parliamentary Sovereignty as the overriding constitutional principle. A very good article here outlines how much the Courts could come down in favour of long-established constitutional practice, and against a usurpation of power by a desperate executive with its back to the wall

While this issue is one that no doubt will continue to run and run, with hotly contested views on both sides, one must draw the conclusion that in the end “politics is the art of the possible” and that if a government wishes to conclude a successful Brexit, it has to do it within the bounds of constitutional norms and with an agreement within the body politic, by a vote of Parliament, and very probably a General Election or a second referendum.

To read more: the opinion of a leading constitutional expert: click here.

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