Brexit Briefing: “End of May” – situation report on lack of options to avoid ‘no-deal’ on 31 October

The Speaker of the House of Commons, John Bercow, stated yesterday that he wishes to remain in post for several months more.  He had previously indicated that he would hand over control of the Parliamentary agenda and interpretation of the rules during Summer 2019.

His decision may prove pivotal to the options that will be open to MPs and their ability to steer the nation through the choices, decision making process, and the very shape of Brexit.

Bercow has shown real strength of will and in formulating and driving through ‘flexible interpretations’ of parliamentary convention.  Like everything else Brexit, this has split the Commons – winning him supporters and arch-enemies.  The proponents of Brexit on any terms – including ‘no-deal’ – would like a pro-Brexit Speaker to rule over the next session under a new Prime Minister.

Two of the three leading Conservative candidates for Prime Minister have stated that no-deal is an acceptable scenario.  Front-runner, Boris Johnson, has been explicit that he would prefer leaving the EU without a deal to leaving on the terms of Theresa May’s Withdrawal Agreement.

Without the intervention of the Speaker, MPs who are opposed to a no-deal Brexit have no constitutional path to block or delay such an outcome.

They could attempt to pass a ‘backbench’ or an ‘Opposition Day’ motion opposing no-deal.  Neither would have legal teeth – but would be politically important.  Scheduling, however, is in the hands of the Government – and none were given Parliamentary time between November 2018 and April 2019.  The new Prime Minister could simply decline to give any time to the Opposition ahead of the Article 50 deadline of 31 October.

They could apply to the Speaker for emergency debates under Standing Order 24.  These are motions which say that the House has ‘considered’ an issue.  The Speaker has the power to grant such a debate – but these motions are expressed in neutral terms and are not legally binding.

They could attempt to amend the Queen’s Speech at the start of the next session.  The new Conservative leader would be expected to ‘prorogue’ Parliament [B-P insight for explanation of prorogue] and set out his or her plans for the next session in a Queen’s Speech.  This would give MPs an opportunity to table amendments which could try and block no deal. But a new prime minister has no obligation to prorogue Parliament and could choose to drag this ‘zombie’ session past the 31 October deadline.

They could attempt to secure a cross-party majority Vote against the Government’s programme.  However, if the Government defers laying any major new bills before the House until after ‘exit day’, the new Prime Minister can counter any prospect of a consequential legislative defeat.

They could attempt to win a ‘vote of no confidence’ in the Government.  This would trigger a 14-day period when someone else – generally this would be the Leader of the Opposition – can attempt to form a government which could win the support of the Commons.  If that cannot be achieved, the UK would face a General Election.  Given the antipathy to the ‘traditional’ two parties – and growing criticism of Jeremy Corbyn’s leadership – it seems highly unlikely that the Labour Party will be in a position to call and win a vote of no confidence in time to form a Government and legislate in time to avert a no-deal Brexit on 31 October.

Parliament’s most successful attempt to avoid no-deal came earlier this year with the ‘Cooper Bill’ – named after Yvette Cooper, MP.  This required the Government to seek a one-off extension to avoid no-deal on 12 April.  A clause in the EU Withdrawal Act (2018) required the Prime Minister to seek parliamentary approval for her Brexit deal before it could be ratified – essential legislation repealing the European Communities Act (1972) and correcting deficiencies in UK domestic law post-Brexit.  Crucially, before Christmas 2018, MPs had won the right to a motion ‘considering’ the Prime Minister’s next steps in Brexit – giving the Commons a chance to shape both the timetable and the content of those next steps – and providing Parliament rejected the Prime Minister’s deal.  This amendment allowed the Commons to briefly take control of the Parliamentary timetable and pass the Cooper Bill.

If the new Prime Minister is determined to push through a no-deal Brexit, there is no constitutional requirement for any further ‘meaningful votes’ – and thus denying MPs any opportunity to vote to take control of the timetable again.

The no-deal provision in the EU Withdrawal Act 2018 – which would have required the Government to hold a vote in the Commons if no agreement had been reached with the EU by 21 January – has long since expired.

It looks like a near impossible task for MPs to stop a prime minister who is determined to leave the EU without a deal. Parliamentary procedure offers no route, and the only apparent way to blocking no deal – a vote of no confidence – would be a massive gamble for Tory MPs.

A Prime Minister set to exit the EU without a deal will face pressure within Parliament – and beyond.  There is an expectation that he or she will have to explain how they would govern in the weeks and months after a no-deal exit.

Meanwhile, the post-Brexit preparations to replace EU law and regulations with UK domestic law and regulations continue.  This was woefully incomplete by 29 March – and the additional six months preparation time was needed to provide continuity – with 8 Acts of Parliament and over 600 ‘Statutory Instruments’ needed.

The Government stated that some 5,000 civil servants were working on preparing for a no-deal Brexit – and all were stood down or returned to normal duties on the second extension to 31 October 2019.  This work will need to be picked up again as the prospects of a no-deal Brexit loom again – and is no simple task.  Being unprepared is not ‘project fear’ – it is wanton disregard for the risks to the sustainability of the economy, society, business and citizens.

Europartnership is, once again, issuing a call-to-arms to resurrect no-deal Brexit contingency planning – or begin them for real this time.  The EU has neither the will nor the capacity to re-open the deal.  The deal is unacceptable to Parliament.  Parliament has no constitutional route to prevent a no-deal. The likelihood of a no-deal Brexit at 23:00 GMT on Thursday 31 October 2019 has never been greater.