Can MPs Really Take Control Of Brexit?

As the Brexit drama drags on, some commentators have suggested that MPs might try to take control of the process next week. But as we shall see, this would be easier said than done.

The simplest way for MPs to take charge of the situation would be to hold a series of indicative votes to show which Brexit outcome(s) command their support. However, the inconclusive results of the indicative votes on Lords reform in 2003 show that this process doesn’t always produce clarity. Also, the outcome wouldn’t be legally binding, so the Government could choose to ignore it.

If that happened, there is little MPs could do about it. They could try to move a motion of no-confidence, but even if it passed, Theresa May wouldn’t be forced out of Downing Street immediately. Under section 2(3) of the Fixed-term Parliaments Act 2011, a successful vote of no-confidence results in a General Election unless the House passes a motion expressing confidence in a government within fourteen days. But who governs during those two weeks? Since the Crown must always have responsible advisers, May would arguably be obliged to stay in office through the election unless an alternative administration could be formed (given the arithmetic in the Commons, this seems unlikely). If May hung on through a General Election, it could be quite some time before a new Prime Minister could change course on Brexit.

MPs could also try to dictate a course of action through legislation. While this would have the advantage of being legally binding, it would also be far more difficult to accomplish. For starters, MPs would presumably have to suspend the standing orders that give the Government control over the Commons’ agenda, and if the bill touched upon the Queen’s prerogative or interest, ministers might be able to block it outright by refusing to obtain Her Majesty’s consent. Since the practice of signifying the Queen’s Consent is a matter of parliamentary practice rather than law, MPs could circumvent the Government by voting to dispense with it, but that would only delay the bill’s passage further.

Even if the bill made it out of the Commons, it would still have to go through the House of Lords, and the Lords’ tradition of self-regulation would make it relatively easy for Government loyalists to hold up the bill’s progress if ministers truly wanted to play hardball. For example, business is not timetabled in the Lords, so Tory peers could prolong proceedings by speaking at length or tabling numerous amendments. These tactics can be countered, but it would be a grueling process.  

Ultimately, there are no quick fixes if the Government and the Commons can’t reach an agreement.

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