There are three main ways to stop a No Deal (ND) Brexit, by passing the Withdrawal Agreement, by withdrawing the Article 50 notification to leave, or by a further extension. As things stand, Britain will by default leave the EU on 31 October 2019 on a ND basis, in accordance with Article 50 of the EU Treaty and the Withdrawal Act. Candidates for the Tory Party leadership are threatening to leave on that basis, but backbenchers in Parliament are trying to prevent this. Can they succeed?
This is the million dollar question. The Tory government and Parliament have been locked in a struggle for power. PM May negotiated a deal, the Withdrawal Agreement (WA), which Parliament has rejected through an unholy alliance between die-hard leavers and remainers. May is now in the process of resigning, once a new party leader is chosen, and Johnson, the favourite, has threatened to leave the EU on 31 Oct. with or without a deal. Moderate pro-EU Tories are threatening in response to refuse to support their government and even bring it down. The struggle for power could come to a head in October, if not before.
Parliament has been insisting on having a say on Brexit and recently to prevent a ND Brexit.
Part and parcel of the government’s difficulty is that it does not have a strong majority. On it’s own it is a minority administration depending on a “Confidence and Supply” agreement with the Northern Irish sectarian ultra-Protestant DUP. Also a small number of moderate Tory MP’s now requently rebel over Brexit and the Government has lost a number of crucial votes.
One extreme idea mooted by the hard Right has been to ask the Queen to prorogue Parliament and simply wait till the deadline is reached, rendering Parliament impotent. This is very controversial, to say the least.
This idea is being endlessly debated, but many people would be saying that under Britain’s unwritten constitution, this would be regarged as unconstitutional. One foundation principle is the sovereignty of Parliament and thus prorogation would be seen as an attempt to subvert this principle. Another is the principle of convention (ie practice) in the constitution and one relevant facet here is that prorogation is used as part of the process leading to a new session. If Parliament was prorogued to avoid it having a say in No Deal, this would be seen as contrary to the intention of Parliament, often a guiding principle in court decisions, and a breach of the convention.
Vernon Bogdanor, a leading constitutional expert, has tough words to say on the subject. One comment of his stands out, that of practical politics: “A minority government preventing parliament from scrutinising a decision opposed not only by MPs, but also, according to survey evidence, by the people, would appear an outrage. The ensuing demonstrations would make the People’s Vote march look like a tea party“. There is also a view that what would amount to an abuse of prorogation could be challenged in the courts. One should also point out that the last time an attempt was made to use prorogation for political as opposed to procedural reasons, the guilty party, namely James II, ended up losing his throne in 1688! So, maybe not a good idea which would be seen as a coup attempt.
There is a further legal side to this debate, that of the courts. An attempt to evade Parliamentary consent could end up in the Supreme Court and the courts have tended to err in favour of the constitutional concept of Parliamentary Sovereignty. One might, for example, imagine a court taking the view that Brexit by progation was open for judicial review. They might take the view that it is almost certainly beyond the power of the Prime Minster to advise the Queen to prorogue Parliament in order to frustrate the will of that same Parliament. It is also arguably outside the scope of the Queen’s prerogative power to exercise it so as to frustrate the will of Parliament. Additionally, there is the constitutional role of convention. Attempts to prorogue Parliament for political reasons would be an example of an attempted breach of a convention used for purely procedural purposes.
Options available to Parliament
Parliamentarians, faced with the executive’s behaviour, have been very busy exploring procedural options to block the government, some long-standing but now little used. The current Speaker John Bercow is an activist Speaker determined to uphold the rights of Parliament against an over-assertive executive. This is a tradition that dates back to the 17th Century. Brecow said in May, “The idea that parliament is going to … be evacuated from the centre-stage of the debate on Brexit is unimaginable. It is simply unimaginable.”
- Refusal of supply: Parliament regularly passes motions proving government with funds in line with the budget. Refusing supply is a very powerful weapon, today little used but dates back to the 17th Century when there was a struggle between Crown and Parliament. It is currently being considered in the form that Parliament could add an amendment obliging the government to obtain Parliament’s approval for ND as a condition of receiving funds. The upcoming Estimates Bill is one such example.
- Amending necessary legislation: While the government has put on hold its various pieces of legislation for fear of their Parliamentary adversaries attaching hostile amendments, it still has to pass certain measures in order to govern. One such example is an upcoming emergency bill to extend civil servants’ powers in the absence of a functioning devolved Assembly, which could be amended as with the supply refusal.
- Vote of No Confidence (VNC): Many call this the nuclear option, to bring down the government. Under the Fixed Term Parliaments Act (2011), if a government lost a VNC, there would be 14 days in which another government could be formed after which a general election would be necessary. It has been suggested that in that period a temporary government of national unity could be formed from the cross-party alliance that informally is functioning to prevent a ND and that it could legislate for a second referendum and then a general election and then hand over power to whatever configuration then emerged. The big question is whether enough moderate Tories would actually show up and rebel to enable the VNC to be passed. Previous attempts by the Leader of the Opposition, Jeremy Corbyn, have failed but it is thought that a grouping that is not led by him might persuade enough Tory rebels, who fear an extremist Corbyn government, to vote for a VNC.
- Taking over business and legislating: Normally the government controls the business of the House through Standing Orders. Thus it is the government that controls legislation, with only Fridays reserved for backbench Private Members’ Bills, something of a lottery. In the spring however, the cross-bench alliance led by Letwin and Cooper succeeded by a majority of one to temporarily change standing orders such that a bill was passed to compel the government to consult Parliament before a ND Brexit. This was conditional on the passage of the WA, which has now been dropped and thus with it the Cooper Act. The rebels had used the opportunity of being able to table an amendment to a government motion to be able to act in this way and this could be repeated.
- Emergency debates under Standing Order 24: These are usually simply that, emergency debates, but it is suggested that, with a supportive Speaker like Bercow, this device might be used to take control of business, as happened with the Cooper Act, and pass legislation.
- The use of old and little-used procedural devices: There is a host of old devices used by Parliament further back in time that could, with the Speaker’s support, be resurrected to block an over-assertive executive. One such example is the Humble Address, a request to the Queen, which a device that has been revived to great effect to secure the release of documents by the Government. The LDP leadership hopeful Ed Davey wants to get one such Address passed to require the PM to rescind Article 50, the procedure by which the UK is leaving the EU.
It should still be repeated that, in the end, to really prevent a ND Brexit, apart from vetoing the ND option, the WA needs to be signed, or a further extension be agreed, or Article 50 be rescinded.
One big difficulty is the short amount of time left. Parliament could be in its summer recess and then caught up in party conferences for much of the summer, leaving perhaps only October to force a change of policy on the government. The EU are increasingly against a further extension to departure and will probably only agree if there is to be a referendum or a general election. Which rather points the way to what might occure come October.