Implications for Westminster Parliamentary System
The Current Brexit Deadlock
Brexit deadlock in the UK has put the Westminster parliamentary system at a very puzzling crossroad. Admittedly, the Westminster parliament is dominated by the government and hence believed to be increasingly declining vis a vis the executive.
However, parliament in the UK is rising. Three successive defeats of British Prime Minister Theresa May's Brexit plan in the parliament has shown that parliament still bites. Moving even one step further, the House of Commons has recently taken an unprecedented step to suspend government businesses on a given day and discuss and decide non-governmental motions instead. This development is revolutionary and has far-reaching consequences for the constitutional norms in the UK and other Westminster styled parliaments.
Though the Westminster Parliament is theoretically sovereign, it gave way to executive dominance during the 1880s when William Gladstone's minority government was facing extreme obstructionism from Irish MPs. The Standing Orders (rules of procedure for UK parliament) were amended in such a way that gave strict control of the House agenda at government hands. Only a minister may move for changing those in future. Successive speakers also adhered to the rule. Minority and weakly tailored coalition governments throughout the nineteenth and twentieth century successfully maintained stability in governance by force of this rule.
The rule is codified in Standing Order 14 of the House of Commons which provides that governments will determine what will be in the Order Paper for a particular day.
There are exceptions, of course.
Thirteen Fridays of each session are scheduled for private member bills on which the Commons debate bills proposed by individual MPs. Opposition parties determine what will be discussed in 20 other opposition days. Additional 35 days are given to debates chosen by the Backbench Business Committee, which chooses from topics suggested by individual MPs. The government may even choose the dates when the 35 backbench and 20 opposition days are scheduled. The government thereby may delay the tabling of any embarrassing move by non-government or opposition MPs.
Of course, members of the UK's "sovereign parliament" attempted several times to win the control over its own agenda back. In 2009, the Select Committee on the Reform of the House of Commons, known as Wright Committee, proposed that a 'House Business Committee' with cross-party participation would draft the agenda for an ensuing week by consensus. The House would then approve or reject the draft agenda. The proposal failed. Instead, a Backbench Business Committee was established to control the agenda for 35 backbench days.
The recent Letwin Amendment passed on the wake of Brexit deadlock is the latest attempt in resurrecting parliament's claim over its own agenda. Noting the successive defeats of Theresa May's Brexit plan, Letwin Amendment of March 25, 2019, sought to take control of Parliamentary schedule on the next government business day (Wednesday the 26 March). Commons would then consider alternative options and see whether there is a clear majority for any alternative Brexit plans. Options may even include Britain going for a fresh referendum or rescinding the divorce process that already started. In short, on the day the parliament debates Brexit alternatives, Standing Order 14 would not apply.
Described as the parliament taking control of the Brexit from the government's hand, the Amendment is not free of controversy. It might apparently signal a brighter prospect for the parliament's accountability role. Yet, it may put the whole governance system in chaos and anarchy. Parliament's so-called "taking control of the process" is not as simple as it is described. A Westminster Parliament's overall mandate for this type of choice is clearly ambiguous.
Firstly, the Letwin Amendment would potentially shift the constitutional burden of foreign relations from the executive to the legislature. Apart from shaking the long-standing government control over House agenda, the amendment would create the future possibility of thwarting the legislative program of a government facing intra-party feud.
Secondly, Parliament may override government agendas for a day in the floor, discuss and support some alternative options but complex norms of parliamentary procedure would not allow it to decide the issue conclusively. Admittedly, Brexit would require legislation. Legislation in the form of a private member bill will not satisfy an orderly Brexit. Brexit involves money and as per Standing Order 48, money bill must be a public bill initiated by the government. For the same reason, 35 backbench days on the floor may not be used for legislation.
Thirdly, 20 opposition days in the floor cannot be used to legislate because opposition days are exclusively for votes on motions and humble addresses. Humble addresses are binding petitions to the government to produce specified documents, such as when the attorney general was compelled to publish the cabinet's Brexit legal advice earlier.
Fourthly, parliament's only option to "discuss and indicate" its support for any alternative Brexit plan may create some pressure upon the government, loyal members of the government may even filibuster (talk out) the discussion. In such cases, back-benchers will be out of options even. As per the House standing order, only a minister can introduce a guillotine motion to close a filibustering debate.
Given the context, the take-home implications of the parliament "taking control of Brexit" boil down to three points.
Firstly, Letwin Amendment was a private-member amendment to a government motion brought in "neutral terms". A motion in neutral terms is meant to give the members a scope to debate an issue without requiring them to approve or reject the motion. In Letwin Amendment, the motion was plainly an offer of the government to discuss its Brexit plans. Though amendments are usually not allowed on neutral motions, Speaker John Bercow tabled the Letwin Amendment on the view that nothing would change if we don't break precedents. Bercow has taken the Speaker's discretion to a new height.
Secondly, parliament's expressed will could persuade the government towards a particular direction of Brexit negotiation. Yet it is not without power to ignore the parliament in its extreme positions like no-Brexit or fresh referendum. Because Brexit is the outcome of a popular referendum that requires the government and legislature to deliver Brexit rather than thwart it. Brexit marks a conflict of direct democracy with Westminster's traditional system of representative democracy.
Thirdly, Westminster parliamentary system is titled towards a single party government formula. Under such a system, the electorates can apportion policy responsibility more accurately. If a cross-party majority of MPs with the same view on a single issue can cast the government aside and pursue their own agenda, then parliamentary process and party systems across the Westminster traditions face a revolutionary paradigm change.
M Jashim Ali Chowdhury is PhD Researcher (Parliament Studies), King's College London