On the face of it the Commons appears to be in control. When the Speaker decided to allow a vote to force the Prime Minister to reveal her Brexit Plan B if she lost the delayed ‘meaningful vote’ the result was never in doubt. In the space of 24 hours, the government was defeated in two significant votes. The first was on an amendment to the Finance Bill tabled by Labour’s Yvette Cooper limiting the government’s powers in the event of no deal (supported by Dominic Grieve, Ken Clarke, Anna Soubry and Phillip Lee among other Tory remainers). The second was on Dominic Grieve’s amendment to the government’s supplementary business motion which revived debate on the Withdrawal Agreement delayed before Christmas to provide an additional five days of debate and to remove the limit of six on the number of amendments that the Speaker could call to be debated and voted on.
Under parliamentary rules, supplementary business motions are usually unamendable. They can only be changed by the government and, unless time is set aside, Parliament does not debate them. However a cross-party group of MPs, led by the former Conservative Attorney General, tabled an amendment to the business motion to shorten the time the government had to return to Parliament if it lost the meaningful vote. To the surprise of many, Speaker Bercow selected the amendment for debate and the government was defeated by nine votes.
Under section 13 of the EU (Withdrawal) Act 2018 the government had 21 days to make a statement to Parliament outlining its next steps. Ministers would have then had to move a motion on that statement within seven days allowing MPs to debate and vote on the government’s plan B. The effect of the Grieve amendment required the government to table a motion under section 13 within just three sitting days of the government losing the meaningful vote. Parliament appeared to be gaining the upper hand.
However, a motion that is tabled by the government does not have to be debated. For that to happen it would need to be formally moved by a minister. So the government could follow the original timetable and allow a debate after 21 days from the making of a statement. The Grieve amendment did not therefore change the legal timetable. But the pressure for a debate, from MPs and the Speaker, earlier than that specified in the legislation would be difficult for the government to resist.
These two defeats, coming so soon together, confirmed Theresa May’s dire situation and the acute difficulty she faced to deliver her vision of Brexit. Although she saw off the immediate challenge to her leadership in the no confidence vote called for by the 1922 Committee, more than a third of the Conservative parliamentary party voted against her and her control of Cabinet was fatally undermined. Collective responsibility evaporated. The Democratic Unionists’ mutiny removed the basis for the confidence and supply agreement that has propped up the government with the result that control of the Commons was lost. So Parliament appears to have taken back control. Yet, at the time of writing, the fundamental issue remains: there is no majority in Parliament for any alternative to Theresa May’s deal. MPs who say they want to avoid a no-deal Brexit have not actually advanced a solution to the impasse. They may have scored a tactical victory but there is no clear alternative strategy.
In the face of a weak and divided Cabinet, opposition leadership has never been so critical. Until recently, Corbyn had managed to keep a coalition of Labour voters broadly together by being very vague about Brexit. Labour’s approach, to secure a mandate from a general election to negotiate a better withdrawal deal so that it aligns better with Labour Party values on issues like workers’ rights, is a bit of a cop out. The Labour leadership’s claim that they could negotiate a Brexit which maintains the ‘exact same’ benefits of EU membership while curtailing freedom of movement, does not seem remotely grounded in reality. However, it is not in Labour’s interests to rescue a Conservative government from catastrophe. If Labour wants to take back control arguably all Jeremy Corbyn has to do is to be still and be ready.
The problem for Theresa May is that, while all those around her appear to have lost their heads, the inescapable reality is that Brussels has not lost control. Juncker, Tusk and Barnier remain firmly in charge of the negotiations.
Against this background polling suggests that there is no great appetite for a second referendum among the population at large. Rather the parties’ take on the overall mood is one of apathy and ennui. For millions of people, Brexit was something that happened two and a half years ago. The ‘Bobs’ (Bored of Brexit) have had enough. Gossip about Cabinet splits, unamendable votes on business motions, the arcana of parliamentary procedure and technocratic chatter about customs unions and trade deals is confined to political nerds and anoraks, and the Twitterati who cannot seem to get enough of their fix.
Popular disengagement with politics is the result and it reflects a change in political culture. Day-to-day politics has become a kind of white noise created by increasingly insulated elites. Despite the incredibly turbulent state of British politics, there has been relatively little change in voting intention since the general election. Through late 2017 there was a small Labour lead and for most of 2018 there was a very small Conservative lead. At no point has either party pulled away. Politics may have been in chaos but voter intention has remained remarkably steady.
Meanwhile, while Brexit continues to dominate every waking minute of many of the inmates of the Palace of Westminster, some other parliamentary business continues. The Justice Committee has launched an inquiry into the access to justice implications of the programme of reforms initiated by Her Majesty’s Courts and Tribunals Service (HMCTS), including the increasing use of digital and video technology and the closure of courts and tribunal hearing centres. Apart from the effects of the hugely ambitious reform programme on access to justice, the committee is interested to hear about the management of the reform process itself (on which the National Audit Office has expressed concern in relation to the scale of ambition of this programme and the assumptions about savings and benefits which have been baked into the financial planning of the Ministry of Justice (MOJ)). The committee will be looking, amongst other things, at whether the MOJ and HMCTS have consulted effectively on the reforms and maintained sufficient communication with the judiciary, the legal profession and other relevant ‘stakeholders’. Evaluation of the impact of reforms introduced or being piloted will also be examined.
With all the stresses and strains at Westminster and in Whitehall created by Brexit it would be hardly surprising if the delivery of the court reform programme was not impacted by this watershed moment for British politics which will define our future for decades to come. But the business of government – and the scrutiny of government business – must go on, whatever the outcome and whoever is in control.
Mark Hatcher, Special Adviser to the Chair of the Bar