‘May vs Erskine May’ – Brexit and the Speaker of the House of Commons
Ian Cram (School of Law, Leeds University)
This blog takes as its focus the ruling by the Speaker of the House of Commons on 18th March that the Government would not be allowed to bring back its motion to approve its Withdrawal Agreement with the EU to the floor of the Commons for a third time.
In terms he stated that the Government could not resubmit to the House the same proposition or substantially the same proposition as that of last week, which was rejected by 149 votes.
Speaker Bercow went on:
This ruling should not be regarded as my last word on the subject; it is simply meant to indicate the test which the Government must meet in order for me to rule that a third meaningful vote can legitimately be held in this parliamentary Session.
The passage in Erksine May relied upon by the Speaker is to be found on page 397 (24th edn.) which states:
A motion or an amendment which is the same, in substance, as a question which has been decided during a session may not be brought forward again during that same session… Attempts have been made to evade this rule by raising again, with verbal alterations, the essential portions of motions which have been negatived. Whether the second motion is substantially the same as the first is finally a matter for the judgment of the Chair.
The Speaker noted that the convention was ‘very strong and of long standing, dating back to 2 April 1604’ and that there were 12 affirmatory rulings on the point recorded up to 1920.
The basis of the rule is also explained in the Speaker’s statement on Monday. At first glance it makes good sense. It is not at all clear why the Commons’ precious time be wasted by repeated attempts to pass motions that have been clearly rejected by a majority of MPs. At the same time, it could be argued that the Government should be at liberty to decide how to use the time allocated to its business in the parliamentary timetable. A Government that is seen to be squandering parliamentary time will in time lose support from among its own backbenchers.
Of course, the ruling of course does not sit in a political vacuum. It has to be read in the context of a highly divided Parliament where intra-party and intra-Cabinet strife is the new norm. The fact that he did not give the government advance notice of his statement may have caught Ministers flat-footed and has done nothing to unsettle Leave MPs in their belief that the Speaker’s personal sympathies are affecting his ability to represent the interests of all backbenchers in the Commons. The fact that the Speaker was prepared to disregard another settled precedent in January this year to allow a backbench MP (Dominic Grieve – a Remain and 2nd referendum supporter) to put down an amendment to a Government business motion has merely added to the sense on the part of Leave MPs that the Speaker has not been even-handed.
The March 18 ruling would seem to make it abundantly clear that the Speaker will have the last word on the matter, unless the Government can mobilise enough support in the Commons to revise the current rule. There are no signs at present that the Government has the appetite for such a move. Nor does it seem likely at the time of writing that the government will attempt to comply with the ruling by seeking to prorogue Parliament, bringing the present session to an end and thereby allowing a 3rd meaningful vote in the new session of Parliament. What is more likely is that the Government will seek to persuade the Speaker that its 3rd meaningful vote next week does not fall foul of his ‘substantially the same’ criterion. It goes without saying that how the Speaker interprets the criterion is critical. Attention will also focus on whether he is asked to rule on the admissibility of a motion in support of a 2nd Referendum. A motion of this kind was overwhelmingly rejected by the Commons on 14th March. (The Speaker had controversially selected this amendment from Remain and former Conservative MP Sarah Wollaston for debate whilst refusing to allow a motion from Mark Francois a Leave MP ruling out a 2nd Referendum. The latter had the support of 127 MPs from all sides of the Commons). It is possible that a motion which attached a 2nd Referendum requirement on the back of Common’s approval of the latest version of the Prime Minister’s withdrawal deal would be deemed sufficiently ‘substantially different’ to be put to the vote.
A longer view on the present crisis may locate the Speaker’s rulings within a broader narrative about the loss of Executive authority in the Commons at times of minority governments (or their majority equivalents where the governing party is seriously fractured on major policy issues). The idea suggested by some in the Commons that the legislature (aided by the Speaker in his preferred interpretation of Erskine May) might take over/dictate the negotiations with the EU seems to betray a fundamental confusion about the respective roles of elected governments and the legislature, a point well made by Mill in his Essay on Representative Government (1861). It also carries disruptive implications for opposition parties at a point sometime in the future when one or more of them enter into government. Similarly, the attempt by Remain MPs to wrest of control over the timetable of parliamentary business from the Executive is constitutionally problematic. If a popularly-elected government is unable to execute its policies through an inability to control the scheduling of parliamentary business then the effective administration of national affairs is put in jeopardy. The Commons works best as a scrutinizer of public administration and official conduct. The frankly bizarre idea that 650 MPs might be in daily control of foreign policy (and thus possibly in this instance frustrate the outcome of a national plebiscite understood by all to be binding politically on Westminster politicians) ought to give onlookers pause for thought.
Ian Cram is Professor of Comparative Constitutional Law, School of Law, Leeds University. My teaching and research interests lie in the field of public law with an especial emphasis upon free speech and the legal regulation of citizen participation in politics.