1604 and all that. A Brexit ruling that probably means less than it might seem

So, now we know. Queen Elizabeth I is partly responsible for the Brexit stalemate. If she had married and had children instead of sticking with that ‘Virgin Queen’ strategy then James VI of Scotland would never have become James I of England. As he did, and Parliament knew it was operating with a monarch who was a devout believer in the Divine Right of Kings and had a track record of assailing the Edinburgh Parliament with repeated requests (mostly for money) and ignoring their rejection, MPs conducted a pre-emptive strike back in 1604 to state that no measure that had already been defeated in one session could be called again in that session. Because they did that, Erskine May duly recorded the fact of it in what has become the parliamentary bible.
The consequence of that was that various mid-19th century and early 20th century Speakers of the House of Commons cited it as a precedent. This in turn allowed the present Speaker of the House, John Bercow, to issue the ruling that he did on Monday. That so-called ‘Good Queen Bess’ has an awful lot to answer for.
The only real surprise in what has been billed as a surprise announcement is that it surprised the Government. All the clues were there. Erskine May is hardly a state secret and there are plenty of copies of it knocking around the parliamentary estate. The Labour MP Chris Bryant had set out the situation in a speech in the House of Commons last week. His colleague Angela Eagle had asked the Speaker in the chamber whether he would formulate a view on the Withdrawal Agreement coming back to the House in basically the same form once it had been defeated last Tuesday. The Speaker (full disclosure, for whom I was once Special Adviser) indicated that he was pondering the position.
There are three reasons why he could have come to a different view than he did and none of them are that convincing. The first is that, as the convention had not been used since 1920, it had lapsed. But there had been no need to use it for the past 99 years because no Government had attempted to bring back a motion that had been lost in the House of Commons. Besides which, conventions do not have expiry dates.
The second is that Brexit is so important that the rulebook should right now be forgotten or ignored. The final one is that, because the Speaker deviated from precedent back in January to allow MPs the chance to take more power for Parliament over the Government on Brexit, he was morally obliged to even up the score by overturning precedent in this instance to allow the Government more power over Parliament. It was never very likely that he would accept that thesis.
Where does that leave us? Have the fundamentals of the Brexit saga been altered? The answer is no. Most of the political fundamentals are the same this afternoon as they were on Monday morning.
The Government did not have the votes to hold and win a Brexit vote yesterday anyway
The ‘Bercow bombshell’ made having a third meaningful vote yesterday all but impossible. Yet the odds on it taking place and being won were travelling backwards already. A few more Conservative MPs had declared that they were about to switch sides and back the deal to avoid a lengthy delay to Brexit but nowhere near enough for victory.
It could be asserted that the Speaker’s intervention deprived the Government of the chance of holding and losing a Meaningful Vote 3 this week and acquiring more intelligence as to which side precisely Conservative MPs are on before scheduling a Meaningful Vote 4 next week, but if the Government Whips Office really needs to keep having and losing votes merely to discover what their own MPs think about the Withdrawal Agreement then it truly is in very deep trouble. There should be more sophisticated means of doing so than that.
It is not the case that Theresa May was robbed of an imminent victory by the Speaker of the House. If anything, she was relieved of the embarrassment of another sizeable defeat at the hands of MPs. Furthermore, this would have been another chance for hostile amendments to be imposed on her.
Mrs May will now seek a short extension of Article 50
After what appears to have been a bad-tempered Cabinet meeting yesterday morning the Prime Minister has written to the EU to request an extension of Article 50 until 30 June. She had clearly wanted the further option of an additional extension well beyond that date. That she could not achieve it speaks volumes about the erosion of her own authority. The Cabinet, as much as Parliament, is taking back control of Brexit policy.
The DUP remains disproportionately important
Nothing that has been witnessed this week alters the reality that unless the DUP shifts its stance then a large number of Conservative MPs will not move either. The DUP is actually very keen to find a means out of the extremely large hole which it has dug for itself. There are local elections across the whole of Northern Ireland on 2 May and it risks bleeding votes to the Ulster Unionist Party and the Alliance Party. If that occurs then Sinn Fein could emerge as the largest single party in councils across the Province. That would be a very bad result indeed for the DUP. Heads might well roll.
The party does, nonetheless, need something to justify changing its mind. For a short period at the end of last week it looked as if Article 62 of the Vienna Convention (the treaty about treaties) and its ‘unforeseen circumstances’ notion might allow the Attorney General to offer a new view about the Irish backstop. The suggestion was, however, greeted with derision by almost every legal scholar in the field, and Geoffrey Cox does not look as if he will be sufficiently helpful to the DUP on that front.
The emphasis now is on finding a ‘Stormont Lock’, a means by which the Northern Ireland Assembly can ensure that it does not deviate in regulatory terms from the rest of the UK if the backstop were to be triggered. This might yet come off but it has the obvious problem that Stormont is suspended.
If ministers have the votes to accept the Agreement then the Bercow ruling will not block them
For all the fireworks in Westminster on Monday, it is not the case that the Withdrawal Agreement, even in essentially unchanged form, cannot make it through the House of Commons. If ministers can assemble even the smallest of majorities to back it then they can use that same majority to vote to suspend Standing Orders (kicking Erskine May into touch temporarily), ram through the Withdrawal Agreement and then restore Standing Orders immediately afterwards.
Indeed, if he sensed that this might happen, the Speaker could decide that even a very small change in the Withdrawal Agreement (such as inserting 30 June as the new Brexit date) was a substantial enough revision to qualify as a new vote on a new question (and so be in order), and not a new vote on an old question (out of order). Parliamentary process is not, in the end, destined to be decisive. Raw vote totals are what matters.
If Mrs May does not indicate that she will stand down soon then the Agreement is probably sunk
The final fundamental is becoming more evident with every day that passes. The minimum that any version of the Withdrawal Agreement requires to carry the day, either this side of 29 March or the other, is a clear understanding that once this stage of the Brexit saga has been completed, the Prime Minister will leave office and the Conservative Party will move on to finding a successor.
It is uncertain whether the Prime Minister has begun to accept this privately. By the time that we have reached 29 March, the date that Brexit should have happened, she will surely have to concede this. It would not render the enactment of the Withdrawal Agreement next week a certainty. It would allow it a fighting chance, if not immediately then before 30 June in another session of Parliament.
Tim Hames
Director General, BVCA