Politically, the installation of a temporary government with the sole policy of seeking EU27 agreement to the extension of the UK’s membership of the European Union is extremely difficult. Conservative MPs may be willing to vote against their own party in government, but they will be very reluctant to pass a vote of no confidence in it. A necessary condition of there being such a government is that there is an alternative bipartisan candidate for Prime Minister, and the leadership of Labour does not wish to accept the legitimacy of anyone other than Mr Corbyn (who is by definition because of his role not such a person) taking office. The unfortunate label a “government of national unity” has become attached to the idea; which as it would exclude the vast bulk of the Conservative party and the DUP, would have only one policy, and only last until after an election held at the earliest opportunity, is a misnomer. The shadow Home Secretary, echoing others, has rejected a return to the approach of Labour’s first Prime Minister, someone called “Ramsey Mcdonald” (sic).
The only alternative way to stop a Johnson government determined to pursue no deal Brexit is through legislation. Mr Stephen Bush, the brightest and best young political commentator, has suggested that if there are the votes for an alternative government, then a fortiori there are the votes for the easier path of legislation requiring the government to seek an extension of article 50. This is so, but there are other good reasons for thinking such an approach will not work.
As Mr Bush rightly says, the Cooper-Letwin Bill, which became the European Union (Withdrawal) Act 2019, serves as a ‘proof of the concept’ that legislation is possible. This Act was passed against government opposition. Although ordinarily the government is in control of the timetabling of business before the Commons, and could choose not to schedule any Opposition or Backbench MP Business Days, MPs could seek to take control of the agenda themselves by tabling, and amending, an Emergency Debate under Standing Order 24 (see the Institute of Government Paper at p 10). The government may oppose the passage of such a Bill through the Commons and Lords, and Brexit supporting MPs might seek to filibuster, but the previous legislation shows that the procedural barriers are not insuperable.
Far more serious is Standing Order 48. This prohibits petitions for the spending of public money unless recommended by the Crown. So, whilst a Private Members Bill criminalising or decriminalising certain activity is possible, a Bill requiring the building of a hospital in a local constituency is not. There are good reasons for such a rule. We need the state’s finances to be the responsibility of one entity. Chaos would result if there were a free for all by MPs enacting legislation for their pet project. Finances need to be taken in the round, with priorities set. Project X may be a good thing, but Project Y may be better.
The Speaker of the Commons ruled that the Cooper-Letwin Bill, that required the Prime Minister to set down a motion to seek the extension of the UK’s membership of the EU, was not a finance resolution. He did so on the basis that although continuing to be a Member State of the European Union had substantial tax and spending consequences, the government already had the powers to cover such expenditure under the European Union (Withdrawal) Act 2018.
The enacted version of the Cooper-Letwin Bill neither required the government to agree an extension, nor to change “exit day”. Instead it drew a distinction between “seeking” (ie asking for) and “agreeing” an extension (see ss1(6). In this way it did not require further expenditure because it did not require the government to agree to whatever the EU27 offered. Instead it merely required the government to ask, thereby not in fact compelling it to extend. And if the government did agree to an extension, the costs of that were already covered by the earlier legislation.
This means that an enactment along the same lines as Cooper-Letwin I will not work. A Johnson government might, with reluctance, be compelled to ask for an extension, but if an offer of one were to come back from the EU27, with or without conditions, it could respond “no thanks.”
Only an enactment requiring the government to agree to an extension can work, and such an Act would be a finance measure contrary to SO48.
Amend or Suspend?
Of course, Standing Orders have been amended or suspended in the past. It has been claimed that to disapply SO48 requires the consent of the Crown (see p 7), and it is true that in the past this has only been done where such consent has been given.
Whilst I do not agree with Mr Stephen Laws QC that it would be appropriate for a government to withhold Royal Assent from a Bill passed without government assent to an amendment to Standing Order 48, I do agree that such a Bill would be, put at its lowest, a dramatic change of procedure,
What is clear is that legislation of the form of the original Cooper-Letwin Bill will not force a determined government to stop a no deal Brexit. Legislation of a kind never before enacted will be required. The original Cooper-Letwin Bill was reliant upon a majority of one.
A Constitutional Crisis?
We do not have a constitutional crisis. Court orders are obeyed by the government. Legislation is passed and given effect to by the courts. What the law is is clear, and is obeyed by the various constitutive elements of the state. Widespread civil disobedience has not occurred.
What we have is a political crisis. This is caused by the existence of a Commons majority opposed to the central policy of the government, but that same Commons being unwilling to put in its place a government whose central policy has majority support. This is caused by the party system: the policy with majority support is found across parties but not within the largest.
Instead of attempting legislation that may not work, MPs should work together to temporarily replace the government for the purpose of the election that is coming soon in any event. Whether they have the political bravery to do so may be doubted.