Our Head of Constitutional Affairs gives his analysis of the political and legal tools which may be used by Parliament to prevent a no-deal Brexit in the event that the new prime minster Boris Johnson is unable to renegotiate a deal that would be acceptable to the House of Commons and decides to leave the EU without a deal on 31 October 2019.
Can Parliament prevent a no-deal Brexit?
During his campaign to become leader of the Conservative Party, the UK's new Prime Minister, Boris Johnson, categorically stated that if he could not renegotiate a deal that would be acceptable to the House of Commons he would leave the EU without a deal on 31 October - 'do or die, come what may'.
Of course it remains to be seen whether that pledge, made in the heat of campaigning, will actually be carried through now that he is in office. The risk that it might be has led MPs to consider whether there is anything that Parliament can do to prevent a no-deal Brexit from taking place.
The legal starting point is that the UK will leave the EU without a deal on 31 October 2019 unless one of three things happens:
- MPs approve a deal,
- a further extension is granted to the Article 50 timeframe, or
- the UK revokes its Article 50 notification.
A no-deal Brexit presupposes that the first of these options has not transpired.
The second option is dependent on the agreement of the EU27 to any request - although the President elect of the Commission has signalled her openness to a further extension. And of course an extension only serves to put off the possibility of a no-deal Brexit until a future date, unless of course a new deal is approved during that extended period.
The third option is therefore the only unilateral and certain course that the UK can take which would prevent such an eventuality at any point, but it is of course the least politically palatable (at least absent the cover of another referendum).
An extension or revocation both require some positive steps by the government. This of course means that, all other things being equal, a no-deal Brexit can be achieved by the Prime Minister simply standing back and taking no further action.
So how could MPs force the government to either request a further extension or revoke the Article 50 notification?
Political mechanisms - the problem of force
Procedure in the House of Commons is governed by a mix of convention and rules that MPs have set down to govern their deliberations (the Standing Orders). However, under Article 9 of the Bill of Rights 1689, proceedings in Parliament are not judiciable in the courts save where they have been made the subject of legislation - an example being no-confidence motions under the Fixed-term Parliaments Act 2011.
Over the course of the Brexit process so far, we have seen MPs use a variety of mechanisms to try to force the government to adopt particular courses of action. A normal motion or resolution passed by the House of Commons is non-binding on the government. It merely serves to indicate the preference of MPs for a course of action and imposes political - but not legal or procedural - pressure on the government to follow that course.
A stronger form of motion was used on 13 November 2018 when MPs passed a humble address requiring the government to publish the legal advice that it had received from the Attorney General in relation to the Withdrawal Agreement. A failure to comply with a humble address constitutes contempt of Parliament and in this case the government was found to be in contempt when it failed to deliver up the relevant advice (it then did so following that finding).
Although the use of a humble address as a means to secure documents is uncontroversial, it is not a settled issued whether it can be used to compel the government to take any particular action. This may become an important question in light of the revelations that some MPs may seek to use the mechanism to try to require the Prime Minister to seek an extension to the Article 50 timetable (and – rather improbably - to send the Queen to Brussels to request one if he refuses).
A humble address is addressed as a message to the Queen with the idea that the government then fulfils its terms on her behalf. The use of the procedure is accepted where it is used to give effect to powers that the House of Commons is accepted to wield, such as the power to call for documents. However, MPs are not held to be able to instruct Ministers to act in other ways, save through legislation. It is therefore likely that the efficacy of any such use of a humble address would be hotly contested.
Likewise, the asking of an urgent question or the holding of an emergency debate merely allow MPs to express opinions - an emergency debate for example is held on a motion 'that the House has considered' a particular matter and is not binding on the government. Both are also dependent on the Speaker agreeing to provide time in the Parliamentary timetable.
Of course, although the mechanisms described above do not have legal force, it would be wrong to dismiss them as entirely ineffectual. A government can serve only while it has the confidence of the House of Commons. If it does not, then it cannot secure the necessary majorities to push through its legislative programme. It would be, to borrow from Norman Lamont, in office but not in power. Ultimately, it may lose a no confidence vote brought under the Fixed-term Parliaments Act 2011, which could lead to it losing office as well.
This becomes all the more important in circumstances where the government does not have an overall majority and where some of its own MPs have registered their disquiet over the prospect of a no-deal Brexit.
The past nine months have seen MPs increasingly willing to vote against their own parties and there is a risk that some Conservative MPs might be prepared to contemplate voting against their government in a no confidence motion if it appears that the UK is heading for a no-deal scenario.
Of course, with a new Prime Minister will come new party whips and although rebel Conservatives have thus far been able to operate pretty freely, it remains to be seen whether the whip will be cracked with greater ferocity, and whether this makes any difference.
However, the new Prime Minister will need to be alive to the mood of the House of Commons if he is unwilling to face an early election - which, unless a no confidence motion was put to the vote on the first day back from summer recess at the latest, would almost certainly require a request to extend the Article 50 timeline beyond 31 October.
Legal mechanisms - the problem of time
If MPs wish to back political pressure with legal compulsion they will need to pass legislation either requiring the government to request an extension or to revoke the Article 50 notification.
Such legislation was passed in the form of the European Union (Withdrawal) Act 2019 (what had been known as the Cooper-Letwin Bill). This required the government to request an extension from the EU27 of a duration that had been first approved (or amended) by MPs.
However, there are considerable obstacles to passing legislation that does not have the support of the government. This is because the government, under Standing Orders 14 and 27 controls the agenda in the House of Commons and can simply refuse to make time for any legislation with which it does not agree.
Time was found for the Cooper-Letwin Bill as MPs were able to vote to amend a motion that the government was required to bring under the European Union (Withdrawal) Act (the 'EUWA') in order to suspend Standing Order 14 and make time for the Bill to be debated in the Commons.
If he secures any changes to the Withdrawal Agreement or (more likely) the Political Declaration on a future trade relationship, the new Prime Minister may seek to put the revised deal to MPs for approval. This would again present an opportunity to amend the relevant motion to create time for something similar to the Cooper-Letwin Bill.
But what if no new deal is put forward for approval? There are three possible options in this regard:
- Amendments to other legislation before Parliament - MPs could seek to amend a Bill going through the Parliamentary process to require the government to take the necessary steps to prevent a no-deal Brexit. However, any such amendments must be relevant to the long title of a Bill and so it would be open to the government to avoid introducing or progressing any Brexit-related legislation prior to 31 October.
In the absence of a Bill relating specifically to Brexit, an example of a more oblique method is given by the attempt to pass amendments to motions approving 'estimates' for the Departments for International Development, Education, Work and Pensions and the Ministry of Housing, Communities and Local Government. Such estimates (as amended) must be reflected in a Supply and Appropriation Bill which authorises government spending on the basis agreed. The proposed amendments to the estimates would have made approval of the estimates conditional on either leaving the EU with a Withdrawal Agreement in place or Parliament having approved leaving without one. The effect would therefore have been to halt government spending by the relevant departments in the event of a no-deal Brexit. However, the amendments were not selected for debate by the Speaker (showing another hurdle that must be overcome - even with a Speaker who has shown himself not averse to assisting MPs in their oversight of the Brexit process).
- Private Members' Bills - There are two main ways that a backbench MP can seek to introduce a Private Members' Bill. The first is by having the Bill picked in the random ballot which takes place at the start of each Parliamentary session. However, the ballot has already taken place for the current session. The second is to apply for a slot for a Ten Minute Rule Bill during which MPs have a ten minute slot to try to 'sell' their Bill to fellow MPs. However, it is generally difficult for Private Members' Bills to be passed since relatively little time is allocated to these types of Bills for debate making it hard for them to proceed through all of the required Parliamentary stages.
- Using another motion to take control of Parliament - In the absence of a motion under the EU(W)AMPs might seek to amend another motion to take control of the Parliamentary timetable. However, to be able to do so again would require a government motion capable of being amended. Only motions which are written in positive or negative terms can be amended, and again the government could simply decide not to table any such motions.
- Opposition or backbench days - These days allow the opposition party or backbench MPs to set the Parliamentary agenda. So, for example, on the opposition day held on 12 June, Labour MPs brought forward a motion that would have allowed MPs to take control of the Parliamentary agenda on 25 June, with the aim of using this date to debate a Bill to prevent a no-deal Brexit. The motion was defeated by 309 votes to 298.
There are no requirements around when the government must schedule such days, provided that they schedule a total of 20 opposition days and 35 backbench days in each Parliamentary session. The new prime minister could simply decline to schedule any more such days in advance of 31 October 2019 allowing the government to control the Parliamentary timetable until after the UK has left without a deal.
To the extent that MPs might cause difficulties for a Prime Minister set on a no-deal Brexit, there might be a temptation to rid himself of their turbulent presence by proroguing Parliament. Prorogation is the suspension of Parliament by the Queen on the advice of the Privy Council (in practice the government of the day). It brings the current Parliamentary session to an end and neither House will sit until Parliament is officially opened again for the new session.
This would prevent MPs from acting to prevent the new prime minister from leaving the EU without a deal since they would be unable to table any Parliamentary business.
A goodly amount of academic ink has been spilt regarding whether asking the Queen to prorogue Parliament would contravene fundamental constitutional principles by (a) dragging the Queen into political matters, and (b) seeking to frustrate the will of Parliament. It is also contested whether the Queen would be required to ascent to a request to prorogue Parliament, or whether she could (or would) refuse.
Recently both Gina Miller and John Major have threatened to challenge any advice to the Queen to prorogue Parliament by way of judicial review. The view that this would be possible is supported in an article in the Times by Lord Pannick QC (behind a paywall) who has been retained by Ms Miller should court action become necessary.
There must be serious doubts as to whether the courts would entertain such a challenge which would be brought on the basis that Parliament might, but has not yet, legislated to rule out a no-deal Brexit. As we have seen above, MPs declined the opportunity to take such action on 25 June. Therefore, Parliament has not (yet) sought to crystallise its will with respect to a no-deal Brexit in a form to which the courts could give effect.
But has Parliament taken the lesser step of clearly signalling its wish to remain sitting until after 31 October?
The Northern Ireland Executive (Formation) Bill is intended to extend the deadline for formation of the Northern Ireland Executive, following which an election must be held. The idea is to create more space to allow Sinn Féin and the DUP to come to an agreement that would allow the formation of an executive without a further election.
An amendment was suggested by the former Attorney General, Dominic Grieve, which would have specifically prevented the prorogation of Parliament before the end of December. That amendment was not selected by the Speaker for debate.
However, another amendment was passed, requiring the government to make progress reports to Parliament on a fortnightly basis from October to December, the idea being that the government would not be able to comply with this legal obligation where Parliament is prorogued.
That obligation was then strengthened by the House of Lords which added the requirement that motions be moved in the Commons and Lords that they have taken note of the report. (The Commons motion must be in neutral terms, meaning that it could not be amended by MPs to take control of the Parliamentary agenda to push through explicit legislation preventing a no-deal Brexit.)
When it returned to the Commons, MPs chose to strengthen it still further by including an additional amendment explicitly requiring Parliament to be recalled, and to sit for at least five days, if prorogued on the date on which a debate was required to take place.
The amendments create a situation in which it is clear that Parliament wishes to remain sitting until after 31 October and will thus both lessen the chance of any attempt at prorogation and arguably make any advice to the Queen to prorogue a judiciable matter that could be challenged by the Court.
One must remember, of course, that any court challenge will take time and that is precisely what will be lacking come September.
Should prorogation actually take place, one startling option has been suggested under which opposition MPs, rebel Conservative MPs and the Speaker simply continue to turn up and act as if Parliament is still in session. Quite what legal status any action taken by such a Parliament would have is an open and interesting question.
However, the chances of having to answer it are slim as the Northern Ireland Executive (Formation) Act, as well as the political controversy and constitutional dubiousness of prorogation mean that it is unlikely to happen.
It is pretty certain that groups of worried MPs will spend a fair amount of time over the summer recess contemplating how they can seek to prevent a no-deal Brexit should that eventuality appear to be about to crystallise.
At this point, it looks like prorogation is probably off the table, so MPs will not be robbed of an opportunity to take action should they wish to.
The position is that the only certain way to do so is to pass legislation requiring the government to either request an extension to the Article 50 timeline or revoke the Article 50 notification. The latter is politically unthinkable at this point so, in practical terms, MPs will be seeking to prevent a no-deal Brexit through an extension.
If a means to pass such legislation cannot be found then the nuclear option is to bring down the government through a no confidence vote in time for any new government to request an extension.
However that still leaves the same question that has remained unanswered since 31 March - an extension to do what?