A ‘sovereign’ Parliament hamstrung over Brexit – or taking control?

The UK Parliament is sovereign – but do those who know of and respect this constitutional principle really understand how limited Parliament’s sovereignty is? Much has been said of parliamentary sovereignty in light of Brexit: by those who wish to leave the European Union to reestablish UK parliamentary sovereignty; but also by those who feel Parliament could wrest decision-making about how the UK actually leaves from the flailing Government.

In fact Parliament is not sovereign in the sense that the collective will of MPs and/or Peers in the House of Lords holds sway. It is parliamentary legislation that is, in effect, sovereign. In the traditional formulation “the Crown in Parliament” is sovereign, meaning legislation having passed its three stages in the Commons, Lords and Royal Assent will be recognised by the courts. And, for the most part, it is the Government that brings legislation to Parliament, not individual MPs or Peers (though there are exceptions: see below).

One thing MPs can do is bring down the Government in a vote of no confidence. The assumption is that this leads to a General Election (under the Fixed-term Parliaments Act) – but there is also a useful traditional power for MPs to vote out the Government – and replace it without an election. This might be a handy ploy if there is enough cross-party opposition the Government’s Brexit approach – though it would amount to a parliamentary coup. The implications are looked at below (subhead: Bringing down the Government) and here in mor detail: Government of national unity? Possibly.

But generally in the great Brexit debate, Parliament has found itself somewhat constrained – hence some of the innovative procedural schemes that have come forward thanks to Dominic Grieve and others to allow backbenchers to “take back control”.

Among them was the rather desperate amendment to a technical government bill on Northern Ireland to try to stop Boris Johnson proroguing parliament. It was added to the Northern Ireland (Executive Formation and Exercise of Functions) Bill because that bill happened to be going through Parliament. The amendment simply insists on a fortnightly government report to the Commons on Northern Ireland in the hope this will disrupt prorogation plans in October. A more explicit amendment simply blocking prorogation was ruled out of scope by the Speaker – ie it had nothing to do with the subject of the bill. The DUP MP Ian Paisley objected that even the accepted amenment “hijacked [the Bill] and turned [it] into something to do with Brexit”. Labour’s Angela Eagle could not quite disagree. She defended the procedure thus:  

“The hon. Gentleman is right to be somewhat miffed about what he calls a hijack, but what I call a situation in which needs must. This is the longest parliamentary Session since the civil war, because the Government, who effectively have no majority, dare not prorogue Parliament, as they would then have to have a Queen’s Speech, and they do not have one handy because the work has not been done. … The lack of a chance to use a legislative vehicle to establish Parliament’s rights has led us to this pass, so I understand the hon. Gentleman’s feelings, but when a legislative vehicle passes, and it is the only one in a desert, and we desperately need to clamber aboard, then needs must.” Hansard 18 July 2019

What can MPs do?
So MPs have generally been thoroughly hampered in trying to craft a majority position on Brexit – and not simply because they can’t decide what that would be. Hitherto one would assume that, constitutionally, MPs certainly couldn’t meet together and decide for themselves the form of Brexit they wanted – or if they did, they would have no special powers to issue legislation to ensure it did so transpire. Yet, one of the options discussed by certain soft- and anti-Brexiters was just such a plan if Theresa May’s deal fell: give the matter over to the Liaison Committee, which normally has a minor advisory role, to draft and bring forward legislation that might command support of a majority in Parliament. The Daily Mail described this as: “tearing up the Commons rule book – giving backbench MPs the power to propose legislation instead of the Government”.

The former parliamentary counsel Sir Stephen Laws, finds any such notion, in effect turning the Liaison Committee into a Government, wholly unappealing and, indeed “horrific” (The Contest to Take Control of Brexit):

“Of course, Parliament is sovereign and can change the balance of influence in its collaboration with government if it chooses. Nevertheless, it would be contrary to the national interest and disastrous for our constitutional settlement for Parliament to take over functions that more appropriately belong to the executive, such as the initiation and coordination of policy formulation and the management of public finances. They are functions that Parliament is ill-equipped to perform effectively and for which it is incapable, as a body, of being held democratic ally accountable in the same way as a government can be.”

Note, though, that putting the “Government” in the hands of the Liaison Committee would not strictly be putting the sovereign “Parliament” in control (since the sovereign Parliament is really “the Crown in Parliament”). Instead the House of Commons would be taking control – a far more radical move, compared by many to English parliamentary history in the 1640s. And Sir Stephen’s highly monarchical answer to stymie such a revolutionary innovation is for the Prime Minister (who would still be in post because, constitutionally, the Monarch appoints the Prime Minister, not the Commons) to “advise” the Queen not to sign the Liaison Committee’s legislation, even assuming it passes both Houses. (*See the note below: Laws’ monarchical veto.)

He insists that in reality: “All the House can do is try to persuade the Government to initiate the required legal changes” (The Risks of the Grieve Amendment pdf). If the two Houses did put legislation to the Queen, he says “it is a sacred duty of all UK politicians not to involve the Monarch in politics”. But, if they did, this might be the point when she could exercise her … let’s call it a “backstop”. So “might not a Government in that situation think that this was precisely the last resort for which the Royal Assent process is retained?”

Laws even considers that the courts might, in these circumstances, resile from their normal duty to consider parliamentary legislation sacrosanct (the fundamental principle underpinning a “sovereign Parliament”) under the “enrolled Act” rule. This says:

“all that a Court of Justice can do is to look at the Parliament Roll; if from that it should appear that a bill has passed both Houses and received the Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament, during its progress in its various stages through Parliament”. Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710, 725.

Sir Stephen suggests this fundamental principle could be thrown to the four winds in the circumstances of “Parliament taking control”. Judges could inquire into how, and how legitimately, the Act in question was passed. Parliament would cease to be sovereign in these circumstances.

Extending Article 50?
On the face of it, according to the traditional reading of the British constitution, MPs could also not insist that the Article 50 process that plunges Britain out of the EU on 31 October 2019 be halted. Since that is happening thanks to primary legislation, European Union (Notification of Withdrawal) Act 2017 (passed by a sovereign parliament), it can presumably only be halted by more legislation – and, to all intents and purposes, only the Government can put that legislation before Parliament.

There is an issue here, though, about whether the Act indicated the intention of Parliament to actually leave the EU or simply gave the Prime Minister the power to start the process under Article 50(2) of the Treaty on European Union.

The Act says she “may” notify the EU of the United Kingdom’s “intention to withdraw”, but the constitutional writer Robert Craig argues here that this is not discretionary and does evince Parliament’s intention that the UK shall withdraw. But if Parliament passed a new Act saying the Prime Minister “may” notify the EU of the UK’s “intention to revoke Article 50”, would that be sufficient to ensure she actually revoked it? (Note: the European Union Withdrawal Act 2017 goes into the nuts and bolts of withdrawal when it happens, saying in Section 1: “the European Union Withdrawal Act 2017 is repealed on exit day”.

This handy thread on the legal situation regarding Article 50 suggested Theresa May, then PM, could request an extension beyond 29 March from the EU – and indeed, that is exactly what she did. But MPs had no power to force her to do that, nor any to force Boris Johnson to push back the 31 October date. The suggestion has been made that a Prime Minister could not deny a simple vote of the House of Commons on a motion to stop the clock on the process – but in reality he probably could because such a vote has no sovereign power.

Frustrating Parliament’s will?
There was even an argument prior to 29 March to say that a Prime Minister had no power to put a delay on Article 50. Under this view, if an extension without parliamentary approval (ie if the Prime Minister used prerogative powers to regulate international treaties, derived from the Crown) frustrated the intention of Parliament, it would be deemed beyond his/her powers (as per Laker Airways v Department of Trade 1976).

But that depends on whether one views the actual date as part of the will of Parliament (as shown in its legislation, not a mere vote). Since an extension would not actually halt the process, keeping Britain in the EU, it would not frustrate the intention of the EU Withdrawal Act, to leave the EU. The date is enshrined in the Act, but, after a compromise keeping the date off the face of the Act, so is the power to amend the date under particular circumstances using secondary legislation. Section 20(4) says:

“A Minister of the Crown may by regulations — (a) amend the definition of ‘exit day’ in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom”.

So the power of delay is there for domestic purposes and, hence, it is argued, the exercise of the prerogative for the same purpose would not frustrate Parliament.

An opposite view might be that setting the date in the EUWA was a significant expression of the will of Parliament and that S.20(4) was simply for technical purposes (as regulations generally are), not for the political purpose of finding an alternative to the Government’s Brexit deal, or inserting time for an election or for a referendum that might actually balk the will of Parliament expressed in the Act. And there is also this in Schedule 7 to the Act:

14 A statutory instrument containing regulations under section 20(4) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

This describes a particular type of secondary legislation, the affirmative procedure, that requires an actual vote in Parliament (rather than simply passing if no one objects over a period of time, usually 40 sitting days). An extension would seem to require a parliamentary vote, so perhaps a brief piece of primary legislation might be best? (This argument is suggested in passing by Robert Craig: Can the Government Use the Royal Prerogative to Extend Article 50? UK Constitutional Law Association.

@RobertCraig3 also joins this Twitter back-and-forth among legal types regarding the status of the EU Withdrawal Act. Does it express the positive will of Parliament to leave the EU? Or does it simply acknowledge and enable the political will of the Government, allowing the Government to extend the Article 50 period – or even halt it? So @JolyonMaugham tweets: “I read the Withdrawal Act as machinery to implement a decision that had already been made rather than a Parliamentary expression of that decision”. Others disagree.

Bringing down the Government
Assuming those like Sir Stephen Laws are right and there is no way of blocking the May juggernaut as it runs down the clock and forces through her deal, what can be done? Laws acknowledges one possibility: the vote of no confidence. But he sees it only in terms of the Fixed-term Parliaments Act version that would be likely to lead to an election. And, he notes

“once a vote of no confidence were passed, the scope for further action is severely limited. The Cabinet manual says that the purdah rules for elections apply after such a vote has been passed. That would stop further changes to the status quo. Thereafter if there is to be an election, Parliament is removed from the scene, and unable to act, from its dissolution for an election until, effectively, about ten days afterwards.”

It therefore seems unclear whether May could delay Brexit to fit in an election  or whether she would want to. And the Commons certainly would be in no position to make her.

Change the Government?
But the alternative would be a non-FTPA vote of no confidence. Basically this would involve putting a no confidence motion that avoided the specific wording in the Act that triggers an election (“That this House has no confidence in Her Majesty’s Government”).

There “is no legal or procedural requirement for a government to resign or a dissolution of Parliament to be sought following a vote of no confidence”, says this Commons Public Administration background paper (here (pdf). But it adds that if such a motion passed nowadays, “the Prime Minister would be expected to give notice that he or she will resign, but only when he or she is in a position to recommend to the Sovereign an alternative person to form a new administration”. 

The reason is that the Fixed-term Parliament Act is the only way a motion of no confidence can now lead to an early election. Using the old-style no-confidence motion would not do this, the paper argues, but, “in the event that no alternative person can be found, it remains available to the House to bring about an early general election under section 2(1) of the Act”. So, on this analysis, parliament can cast around for a new PM/Government; failing that, leave the old one in place; or move to an FtPA process leading to an election.

The benefit to any cross-party coalition would be that it could potentially avoid losing the best part of a couple of months to a General Election – during which time the country would come closer to slipping out of the EU with no deal anyway – or even drop out of the EU as the election period straddles October 31. The backbenchers’ choice of Prime Minister would be more amenable to pursuing the sort of Brexit (or second referendum) that the majority of MPs wanted.

In December Jeremy Corbyn threatened a vote against May personally, but that cannot force a Prime Minister to resign. An amended version of a no confidence motion that includes the Government in its condemnatory wording but does not use FTPA wording could bring down the Government without triggering a General Election under the Fixed-term Parliaments Act. See: Corbyn motion may be a bigger deal).

But if the non-electoral alternative were deemed an option, Corbyn himself would have to want to present the motion in non-FTPA terms at the risk of having no leading part in any anti-May coalition government (including pro-referendum or pro-single market Tories) that emerged from the ruins.  Motions of no confidence seem to be at the whim of the Leader of the Opposition – but who knows what could happen now Speaker Bercow is willing to play fast and loose with the procedures of the House.

So the non-electoral option would seem to be the only way to suspend the Article 50 process if May won’t do it, assuming a new cross-party coalition Government would act pretty quickly to do it. On the other hand it would amount to a parliamentary coup against the May Government – and would not be wholly uncontroversial on the streets of Brexit-leaning Britain.

• For a bit more on no confidence motions see “Motions of no confidence” below.

• Prof Mark Elliott looks at the continuance of the traditional vote of no confidence here: Confidence motions and the FTPA 2018

• Spinning Hugo also looks at no confidence votes here: May’s duty to resign.   He notes: “Before the FtPA, a Prime Minister who lost an express vote of confidence in the Commons had two options. One option was to call for a dissolution, whilst remaining as Prime Minister pending the outcome of the election. This was the course Callaghan took in 1979. The other is to resign, and advise the sovereign to call on someone who can command the confidence of the Commons.”

• A recent Public Administration and Constitutional Affairs Committee report on “old-style” no confidence motions can be found here (pdf).

*A note on Sir Stephen Laws’ monarchical veto
Laws founds his notion that the Queen could veto legislation that has passed through both Houses of Parliament but without government approval on the Commons standing orders, particularly SO 48, which says:

48.Recommendation from Crown required on application relating to public money This House will receive no petition for any sum relating to public service or proceed upon any motion for a grant or charge upon the public revenue, whether payable out of the Consolidated Fund or the National Loans Fund or out of money to be provided by Parliament, or for releasing or compounding any sum of money owing to the Crown, unless recommended from the Crown.

Laws argues that any anti-Brexit legislative change, including holding off the Article 50 process and especially a referendum, would cost money so such legislation would be controllable by the Crown – actually the Government. He notes in particular that “the repeals that are to come into force under the 2018 Act on 29th March 2019 include the repeal of section 2(3) of the 1972 [European Communities] Act“. This, in effect, allowed money to be paid automatically to the EU as required – which would stop on 29 March but continue if the Article 50 process were suspended.

The financial implications of this would allow the Prime Minister to whisper in the Queen’s ear that she could veto any such Bill. In fact, no such Bill should really find its way out of the House of Commons given SO 48, never mind be put before the Queen for her signature. 

Given all this, and the suggestion by the Daily Telegraph that the Government is taking a royal veto seriously (Queen could be asked to veto John Bercow’s attempts to water down Brexit), there is all the more reason why a cross-party alliance might consider unseating May and replacing her government.

• Robert Craig looks at the various backbench procedural innovations and the Royal Assent debate here: Could the PM advise the Queen to deny Royal Assent? On balance he says yes, but that the Government should face any public anger if she did, not the Queen herself.

• Prof Mark Elliott rejects the notion of the Queen blocking legislation here: Public Law for Everyone  

• For those interested in constitutional arcana here is a 1999 backbench bill intended to strip the Government of prerogative powers (such as making and unmaking treaties with foreign powers and assenting to European Community legislation) unless it had parliamentary support: Parliamentary control of the Executive Bill. The sponsor of the Bill was the later-to-be Brexit Secretary, less enamoured of Parliament taking back control regarding Brexit itself (because it involves “tearing up the British constitution”).

• Here in a series of tweets Jo Maughan looks at who can revoke the withdrawal from the EU on March 29 – the issue being, if the prime minister does so using prerogative powers regarding international treaties derived from the Monarch, would that be balking Parliament’s will. Significant case: Laker Airways v Department of Trade [1976] EWCA Civ 10

Further background: The powers of Parliament
Here is a handy guide to the very limited traditional powers of Parliament, in particular MPs in the House of Commons (pre-Bercow, Grieve et al …):

The Commons can call its own debate, it can pass a vote of no confidence in the Government or it can (possibly) pass a piece of legislation presented by individual MPs. MPs can call debates by various procedures, outlined here. Adjournment debates, which are in the gift of the Speaker or through a ballot, are really little more than a means of getting ministers to answer questions.*

Backbench Debates may be available on application to the Commons Business Committee. The committee will also take account of e-petitions. So a debate on a second EU referendum was scheduled for 5 September 2017 following an e-petition from four million people. But it is merely a debate with an obligatory reply at the end from the relevant minister. There is no vote and it cannot change policy.

Resolutions can be debated and voted on, but have no legal effect. Governments should “respect them” as the will of elected members, according to this Commons select committee report.

Motions of no confidence
The most draconian power Parliament has is a motion passed in the Commons on the words in the Fixed Term Parliaments Act 2011 Section 2(2): “That this House has no confidence in Her Majesty’s Government.” There would have to be some planning for this, not to mention conspiracy, since if no new government can be formed within 14 days, a General Election must ensue.

Importantly, the Corbyn vote (against May personally) was denied time in the Commons by the Government, so would have to occur in Opposition time – which is limited 17 days per session for the main opposition party and three for the next biggest. A vote of no confidence in the Government (rather than just the PM) should be given time by the Government because it has real implications (ie it can bring down a government).

‘Twenty days shall be allotted in each session for proceedings on opposition business, seventeen of which shall be at the disposal of the Leader of the Opposition and three of which shall be at the disposal of the leader of the second largest opposition party’ – Standing Order 14

(The fact the Government decided a single session would cover two years caused controversy in June 2017 when Labour asked for extra Opposition days pro rata. Valerie Vaz, Shadow Leader of the House, complained that the proportional reduction in Opposition days curtailed fair debate and discussion.)

Legislation
In terms of primary legislation (laws passed through both Houses of Parliament and signed into law by the Monarch), Bills are generally introduced by the Government. The powers of MPs (and Peers) to introduce Bills are limited. Private Members’ Bills are explained here. But they involve winning a ballot. The ballot for 2017-19  was held in June 2017 and several MPs have had success with their legislation. See here. (In terms of MPs seizing control of Brexit and suspending the Article 50 legislation, this option looks therefore useless.) 

Parliament takes control?
The constraints on MPs explain the blizzard of procedural motions from Dominic Grieve and others as well as the innovative activism of the Speaker, John Bercow, during the Commons Brexit process. This is why, for example, MPs cross-party sought to add no-deal bars to any legislation that came up in the weeks before 29 March, however tenuous the link to Brexit (see the Guardian here).

The notion that MPs were able to amend business motions caused a bit of a furore in the Commons when Bercow said he would accept such amendments. Brexiters insisted there was no precedent for this. (See this BBC report). He allowed a backbench amendment (from Grieve, demanding May return with a plan B within three days after her EU deal is voted down) to a “Business of the House” motion, normally (previously?) regarded as only amendable by ministers of the Crown.

If the amendment of Business motions were to become a precedent, it would allow MPs considerable powers to cause mischief for Governments (particularly in hung or nearly hung parliaments) trying to control how and when their business passes through the Commons. Arguably, though, May has brought this down on herself by abusing the Government’s control of the Commons agenda to first withdraw a vote on her Brexit deal and then, pretty obviously, to “run down the clock” to March 29, when Britain drops out of the EU with or without a deal.

• Here are the Commons standing orders – including No 14, which begins: “Save as provided in this order, government business shall have precedence at every sitting.” It doesn’t mention MPs taking over business as happened on 25 March 2019.

Note: The EU’s Court of Justice has set out circumstances in which a revocation of the notice might be accepted by the EU “after a democratic process”: BBC report here and EU backgrounder here.)

• See also: Law and Lawyers: The Brexit debacle and Royal Assent and Brexit