Dear readers,
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.