Dr Hannah White: How the House of Commons has been empowered by Brexit
Government must learn the lessons of its bruising parliamentary experiences if it is to deliver on its plans to leave the EU
In the decade since the unexpected coalition in 2010, there has been growing acknowledgement of the need for a better understanding of parliament across the civil service. Some progress has been made, including through work led from the Cabinet Office by first parliamentary counsel Elizabeth Gardiner. But Brexit has demonstrated beyond question the need for civil servants and ministers to understand parliament better.
As parliamentarians enjoy what they regard as a well-earned rest from the ‘B’ word, what lessons ought the government to have learnt from events in parliament in recent weeks?
First, that small or non-existent majorities require a different approach to managing parliament. This doesn’t just mean adjusting the timetable of legislation and delaying key votes that seem likely to be lost, in hope of doing a deal behind the scenes to get them through. It means remembering that almost all decisions in parliament are taken by simple majority. If parliamentarians are minded to construct alternative majorities, for example to temporarily suspend their normal rules (such as whether so-called “neutral” motions should be amendable) or to set previously unthinkable precedents (such as backbenchers passing legislation against the will of government), they are entitled to do so.
With a process as high profile and contentious as Brexit, and particularly with a minority government, civil servants need to anticipate and plan for the possibility of parliament taking decisions the government does not like.
Civil servants also need to advise ministers that their approach to achieving their aims in parliament will have consequences in parliament. This is the second lesson – closely related to the first. A good example is the government’s response to Commons motions. Since even before the EU referendum, government has increasingly been treating motions agreed by the Commons as inconsequential expressions of opinion, rather than as the politically binding decisions of a sovereign parliament. Parliamentary motions seem to have become something to note, but not necessarily to act upon.
The Spelman-Dromey amendment to the 30 January “meaningful vote”, which was passed by 318 votes to 310, for example, rejected a no-deal exit. But while the government decided to take the Brady amendment passed at the same time as a firm instruction to renegotiate the Northern Ireland backstop, it continued to insist that a no-deal exit remained a possibility, despite the Commons’ clear expression of will to the contrary.
This, together with the government’s previous record of ignoring parliamentary decisions, had consequences. It hardened the resolve of backbenchers who wanted to avoid a no-deal exit, meaning they felt they had no option but to bind the government’s hands by passing legislation. The resulting act may set an unwelcome precedent for future governments, but its existence is the consequence of the current and previous governments’ dismissive attitude towards previous parliamentary decisions.
A third unavoidable lesson for civil servants and ministers is that House of Commons rules invest considerable power in the speaker to interpret parliamentary precedents and procedures. Commons rules are complex but based upon a few underlying principles – including the right of minorities to express their view, the sovereignty of parliament over its own proceedings and the inability of one parliament to bind its successors. It is up to the speaker to interpret the rules in the light of these underlying principles. As new situations present themselves, it remains possible that he or she may do so in a way that confounds government expectations.
“Government has been treating motions agreed by the Commons as inconsequential expressions of opinion, rather than as the politically binding decisions of a sovereign parliament ”
The occupants of government and opposition whips’ offices may well be scheming to close down the potential inconvenience of the speaker’s discretion, should they find themselves with a convenient parliamentary majority to do so. And they may well succeed. But reasserting the power of the executive over the legislature just at the moment that that the British public has expressed its wish to see power returning to its parliament would be a pretty bad look. And it is always possible that the whips find that backbenchers – with a fresh example in mind of their own powers and of the speaker’s role in exercising them – may be less willing than they might think to tie his or her hands.
Of course, the opportunity to close down inconvenient parliamentary behaviour may not arise if forthcoming elections do not deliver any sizeable majority for a single party. If they do not, the key lesson for government to learn from the Brexit process will be that parliament can be unpredictable, particularly when it feels it has been sidelined or ignored.
Parliamentarians have been mining the pages of Erskine May and Standing Orders for interesting procedural wheezes to achieve their aims, for example resurrecting the humble address procedure to demand access to government papers. Civil servants need to ensure they are up to speed with parliamentary procedure so they can anticipate such eventualities. But a more strategic move would be to persuade ministers to use traditional parliamentary strengths – such as debating issues of national importance and building consensus – to engage parliament in a way that feels meaningful to MPs and rebuilds trust that has been lost through the Brexit process.
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