So, the Supreme Court has spoken, the Government has listened, and the European Union (Notification of Withdrawal) Bill has been published. It is not a long publication, containing only two clauses, of which the operative one has only two sub-clauses. The first grants to the Prime Minister (not, interestingly, HM Government, only the Prime Minister) the power to invoke Article 50 of the Lisbon Treaty and notify the EU of the United Kingdom’s intention to leave the union. Job done. The second is more opaque: it says that the notification will have effect no matter what other provisions may be made under the European Communities Act 1972 or “any other enactment”. Not privy to the Government’s thinking, I’m not sure against which eventuality this sub-clause is intended to operate, but I do know from experience that the Office of Parliamentary Counsel, the Government’s legal draughtsmen, will have inserted it for a reason. Answers on a postcard, please.
So a short Bill (very short) but a long debate. The Government has scheduled two days for its Second Reading, and then three days for Committee stage (on the floor of the House), Report stage and Third Reading. In terms of the minutes-to-words ration, that’s pretty high. It is no surprise that the Committee stage is on the floor of the House; this is standard for major constitutional Bills (and, conversely, for very minor Bills). It was also inevitable that the Government would allow plenty of time for debate to ensure that all the issues were, in legislative parlance, “well-ventilated”.
The Bill will pass the Commons easily. The Opposition are imposing a three-line whip in favour of it, which has already caused internal strife, with one front-bencher resigning rather than fall into line. I am not an expert in the politics of the Commons (procedure was my specialism), but this strikes me as odd. Certainly, I see that voting against the Bill en bloc would be an act of foolhardiness given the clearly-expressed will of the electorate. But why not have a free vote? The result would most likely be the same – the passage of the Bill. And the ructions within the Labour Party would have been avoided. I never seek to make windows into men’s souls, to paraphrase Good Queen Bess, and much less so if the man in question is Jeremy Corbyn, but I can’t help wondering if his long-held Euroscepticism is coming to the fore. Remember that being anti-Europe used to be the stamping ground of the hard Left, and the Labour Party’s 1983 general election manifesto (famously described by Gerald Kaufman as the longest suicide note in history) committed the party to withdrawal from what was then the EEC. The late Tony Benn was fiercely against the Community, which became the Union.
That is not to say that Her Majesty’s Most Loyal Opposition will have nothing to say over the five days of debate. I have no doubt that the Labour Party – as well as the SNP, the Liberal Democrats and the other minor parties – will seek to table a forest of amendments to the Bill. This will tax first the clerks of the Commons’ Public Bill Office, then the various occupants of the chair for the debates. Amendments to Bills, in Westminster (unlike in Congress in DC), have to be within the ‘scope’ of the legislation. That is, they have to relate, quite closely, to the contents of the Bill, and cannot be tabled to frustrate its main aims.
(There is an exception. At Second Reading, or, very exceptionally, at Third Reading, Members may table what is called a reasoned amendment, which argues for the Bill to be substantially altered or rejected entirely. This must be very carefully and adroitly drafted. Clearly, in the case of the Brexit Bill, the Labour Party has no intention of tabling such an amendment. It would not surprise me, however, if the SNP or the Liberal Demorats put down such a measure.)
Once the amendments have been tabled from all sides, then it becomes a matter of judgement. Amendments must be selected if they are to be debated and, perhaps, voted upon. The decision on selection is taken by the Speaker, for amendments at Second Reading and Report stage, and, under his auspices, by the Deputy Speakers for Committee of the whole House. (Parenthetically, it may interest you to know that CwH is, as far as I can think, the only proceeding on the floor of the House which Mr Speaker cannot chair. He must cede his place to one of the Deputy Speakers or a member of the Panel of Chairs. It’s complicated.) The advice to the nabobs of democracy on whether or not to select an amendment comes from the clerks in the Public Bill Office. But they can only advise according to precedent and procedure. What the elected Members of Parliament bring to the party is an ear for politics, a sense of what the House wants to debate.
Like so many parts of the British constitution, it is a compromise, and all the better for it (if anyone is asking me, which they rarely are). The Speaker and his Deputies know the House and its moods, and can judge what is necessary to satisfy the appetite for debate. The clerks are there to advise on what the rules of the House say, and what has happened in the past. Generally, it works.
Amendments to such a short document as the European Union (Notification of Withdrawal) Bill will have to be tightly drafted. There is very little in the Bill and so the scope is necessarily narrow. I imagine some Members will want to try to require the Government to set out its negotiating position for Brexit, or at least some red lines. In scope? Dubious. Not advice I’d want to have to give.
Of course, the next two weeks is only half the parliamentary process. Then we move to the House of Lords. Bills must be agreed in identical form by both Houses of Parliament before they can receive Royal Assent from the Queen and become law. Their Lordships are not, of course, accountable to the voting public, which could cut either way; either they could ignore the result of the EU referendum and seek to frustrate the Bill altogether; or they could acknowledge their lack of legitimacy and give the Bill a fair wind.
Timing matters. We know how long the Bill will spend in the Commons. How long it spends in the Lords is another matter. The Prime Minister has committed to invoking Article 50 by the end of March, which really isn’t all that long in parliamentary terms. If both Houses amend the Bill, it will need to go back and forth between them until both agree on the final form – what is known as ‘ping pong’. This can happen at great speed, as I know to my cost, and what will eventually emerge is a physical copy of the Bill with any amendments pasted in (literally) in different colours. My hunch is that the Lords will see sense and speed the Bill through in short order, but it is not impossible to imagine that some of the peers, particularly the Liberal Democrats, may embark on a kamikaze mission to try to stop its passage. If we miss the deadline of 31 March as a result of the actions of the House of Lords, we face a constitutional crisis of considerable magnitude.