“May it please your Majesty, I have neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me, whose servant I am here.”

William Lenthall, 1591-1662, Speaker of the House of Commons

Introduction

It is likely that anyone who has taken a tour of Parliament, and certainly anyone who has worked in Parliament, will be familiar with the words of Speaker Lenthall (above). They are woven through the narrative that Parliament tells itself, and the world at large, about its sovereignty – the sovereignty that so much of the 2016 campaign to leave the European Union centred on.

Yet, on Wednesday 12 June 2019, we saw an abject failure by MPs to exercise that sovereignty and ensure Parliament is the vehicle by which the final decision on Brexit is made.

This was the opportunity for MPs to put the national interest ahead of narrow personal or party electoral interest and give Parliament the certainty of one more definite opportunity for a considered decision. Whether motivated by a desire to stop Brexit, to ensure Brexit only occurs with some semblance of a functional deal, to avoid dragging the Monarch into politics, or to simply ensure Parliament’s primacy in determining the destiny of the United Kingdom, yesterday was the most tangible chance left to MPs.

They blew it.

Some will have been nervous about their electoral prospects in their seats. The idea that voters in an October General Election would even remember a technical procedural vote held months before is for the birds, but such is how Brexit has warped any rational understanding of electoral dynamics in the current political debate. Whatever, the combination of Labour rebels and abstentions, and independents, together with whipped government MPs, were more than enough to defeat the combined opposition parties and the ten Conservative MPs who had the courage to rebel.

It is worth noting some commentary suggesting the difficulty for Conservative MPs was that this was a Labour Party Opposition Day Debate, held during a Conservative Party leadership contest. However, opportunities present themselves and need to be taken. With the Scottish National Party, the Liberal Democrats, Plaid Cymru, the Greens and the Conservative Party all represented in the top six names, there is no doubt this was clearly a cross-party motion.

The failure of MPs to seize the moment was underscored by Sir Oliver Letwin MP on the Today programme: “We have run out of all the possibilities that any of us can at the moment think of.”

Why have they blown it?

In recognising that MPs blew it, it is worth understanding the quiet magnitude of this failure to assert parliamentary sovereignty over a Brexit process that risks becoming the plaything of a Prime Minister elected by a Conservative Party membership that represents – according to its most recent published figures –just  0.27% of the electorate.

Like so much else in this torturous process, yesterday was about time – and who controls the time available to Parliament to debate issues of interest.

The big fear of many who are concerned about the direction of this debate, whether motivated by a desire to avert Brexit, manage Brexit or ensure Parliament retains control, is that one or other of the Conservative leadership candidates is serious about the potential of proroguing Parliament so that Parliament has no time available to it to prevent Britain leaving on October 31 with no deal.

Dominic Raab has been clear that this is an option. Today, Boris Johnson refused to rule it out.

Let that sink in. Potential Prime Ministers are actively considering subverting Parliament by drawing the Monarch into the most intense and toxic political debate this country has had in a generation.

So this is about time.

Yesterday’s debate was held in time that was given to the Official Opposition. Standing Order 14 (2) states that “Twenty days shall be allotted in each session for proceedings on opposition business, seventeen of which shall be at the disposal of the Leader of the Opposition and three of which shall be at the disposal of the leader of the second largest opposition party; and matters selected on those days shall have precedence over government business…” Parliamentary obsessives will have noticed that this is the longest parliamentary session since the English Civil War (1642-51). The opposition days due under the Standing Order have long since been allocated and so additional days, to reflect the fact that you would ordinarily expect a session to last no more than a year, have been set aside for opposition business by agreement between the whips’ offices in ‘usual channels’.

You can immediately begin to see the significance of the problem.

Yesterday was a day allocated for the opposition’s business that, technically, the government did not need to provide. MPs, seized of the need to avert the possibility of a new Prime Minister simply silencing Parliament, tabled a motion that would have created time on June 26 for the House of Commons to take control of the Order Paper and table a business motion or bill that could potentially have curtailed the Prime Minister’s freedom to deny Parliament a say in Brexit.

It was (another) bold move and it was defeated.

Having tried and failed, it is inconceivable that a hostile Conservative government is going to agree to allocate a further day for opposition business in the name of the Leader of the Opposition or the leader of any other opposition party.

Instead, if MPs wish to challenge a Johnson or Raab who intends to shut down Parliament, they will have to test the elasticity of procedure to an even greater extent – and draw on history’s precedents to back them up.

There is hard truth to face, too.

By voting it down yesterday, MPs – perhaps concerned about the short-term optics of the decision – have significantly heightened the rhetoric in a highly-charged debate and risk placing Parliament’s already creaking procedures under even greater strain.

If anyone thinks the idea of this being dangerous is hyperbolic, Rory Stewart, a rival Conservative leadership candidate, has said that “he and other MPs were ready to sit as a parliament outside the Palace of Westminster if Mr Johnson took this step as PM.” He then made the direct comparison with the Civil War.

Think about that for a moment, too.

A candidate who has made it into the second round of voting to be the next Prime Minister of the United Kingdom is drawing parallels between the behaviour of the leading candidate to become Prime Minister and the actions of King Charles I that precipitated a bloody nine-year conflict that tore the country apart.

Stewart is suggesting that there is a cadre of MPs prepared to defy the Prime Minister and sit in an alternative Parliament, directly challenging the authority of the government.

Current political context

Just as then, so now we have a Speaker who has fuelled furious debate amongst commentators and experts by demonstrating a clear willingness to champion Parliament’s sovereignty and challenge the executive. But there are other parallels between the political situation at the time that Speaker Lenthall took his stand and now, beyond the flamboyance of the central personalities.

The country was seized by a charged and polarised political debate, the respective narratives driven by an authoritarian executive with contempt for Parliament, and parliamentarians were desperately attempting to use the constitution and parliamentary procedure to constrain that executive. In an article on the Long Parliament, Dr Vivienne Larminie notes how Speaker Lenthall’s tenure was set against a backdrop of “escalating uprising in Ireland and unrest on the streets of London.” In our own politically incendiary times, the centrality of the polarising debate around the backstop and Northern Ireland, and the anger of Remain voters manifesting in a million people marching through London, are a vivid reminder that history can indeed repeat itself.

There are parallels in a (slightly) more recent constitutional crisis, too, as well as possible clues to ways forward for MPs determined to challenge a Prime Minister hell-bent on circumventing Parliament.

Following the removal of the Fox-North coalition from government in 1783 and the installation of William Pitt the Younger as Prime Minister (with the full connivance of George III), Pitt’s arch adversary, the radical Whig Charles James Fox, and his allies, including his friend Thomas Erskine, mounted numerous attempts to challenge a Prime Minister they believed would dissolve Parliament.

William Cobbett, in his journal The Parliamentary History of England, Vol. XXIV, records a debate on Mr Erskine’s Motion for an Address not to Dissolve Parliament (Columns 239-263). He then details the response from His Majesty (Columns 263-264):

It has been my constant object to employ the authority intrusted to me by the constitution, to its true and only end – the good of my people; and I am always happy in concurring with the wishes and opinions of my faithful Commons. I agree with you in thinking that the support of the public credit and revenue must demand your most urgent and vigilant care. The state of the East Indies is also an object of as much delicacy and importance as can exercise the wisdom and justice of Parliament. I trust you will proceed in these considerations with all convenient speed, after such an adjournment as the present circumstances may seem to require. And I assure you I shall not interrupt your meeting by any exercise of my prerogative, either of prorogation or dissolution.

There are significant elements here. The recognition of the primacy of the Commons. The need to act responsibly in the public interest. The expectation of the exercise of care and judgement on the part of Members of Parliament when considering complex and significant matters. The need for a timely resolution. And a clear assurance that the Monarch, even at a time when the role was still highly political, would not be drawn into politics.

The debate on Mr Erskine’s Address has another interesting parallel with contemporary machinations in that it details at quite some length the shifting complexities of the coalitions of interest on the parts of both government and opposition. The striking reference to “Coalition! Coalition! Cursed Coalition!” conjures up an image of a constitutional Marty McFly, witnessing the fallout of 2010-2015 before darting back in time to scribble a note.  Plus ça change.

However, these proceedings suggest that the device of the Humble Address has the potential for a broader application than is usually considered presently. Current understanding generally sees it as a rarely-used procedure to produce government documents. For instance, it was failure to act on the Humble Address of 13 November 2018, requesting the production of the full government legal advice in relation to Brexit, that led to the government being found in contempt of Parliament in December 2018.

But worth noting, too, are the efforts made by Fox in early 1784 to remove Pitt from office, on 2 February, 1 March and 8 March. The Journal of the House of Commons records the first at page 878 as an abstract motion:

However, the second and third, recorded on pages 965 and 977 of the Journal, and which were passed with decreasing majorities (the last, in a spooky foreshadowing of contemporary proceedings, by just one vote) use the device of the Humble Address. This final motion threatened to withhold supply from the government.

 Of course, it is worth emphasising that these parliamentary manoeuvres were ultimately unsuccessful.

A little like Theresa May suffering defeat after defeat, but clinging on, Pitt refused to resign. Eventually, later in March, after his third defeat, he went to the country. Pitt was victorious. [Winning campaigns aside, unkind commentators might also see a comparison with May in the view widely attributed to the historian Asa Briggs that Pitt’s “personality did not endear itself to the British mind, for Pitt was too solitary and too colourless, and too often exuded superiority.”]

However, the stark reality is that MPs are now going to have to dig deep into historical precedent, and get creative with their procedures, if they are to have another chance at creating time to insert Parliament into the Brexit process despite a hostile government.

Routes forward

As the Institute for Government has pointed out, there is no way of guaranteeing that MPs can stop Britain exiting the European Union without a deal.  By foregoing their most recent opportunity, they have made their job considerably harder.

Is Letwin right that MPs have exhausted the possibilities? I don’t know, but I think it is worth debating, if only to raise those issues that are as pertinent today as they were for Charles Fox: the primacy of the Commons, a responsibility for the public good and the need to keep the Monarch out of politics.

I should caution here that there are many others with significantly greater procedural and constitutional expertise, and I am very happy for the flaws in my thinking to be challenged. However, as far as I can see, there are now two major challenges for MPs:

1. How do MPs create the time for Parliament to act?
2. How does Parliament then use that time?

First task is to create the time.

The Speaker has been very clear that he is not prepared to see Parliament prorogued. That suggests a willingness to interpret the procedures and conventions of the House to attempt to block any effort.

One way of creating time would be through Standing Order 24. The Speaker has hinted that the opportunities for use of SO24 extend beyond a simple debate on a motion that the House has ‘considered’ a subject (as per, for example, the SNP debate on Brexit on 18 December).

The question then is, what would the substantive motion look like?

That might depend on where we are at in the timetable. Earlier, it might be to insert a business motion to take control of the Order Paper. Later, it might be to pass a Humble Address requesting that prorogation, that offers no procedural opportunities itself in the Commons, not take place – much in the manner of Mr Erskine’s Address.

What if those routes fail?

Then the stakes are raised even higher and the risks for MPs become even greater.

We are back in the territory of motions of ‘no confidence’ and ‘confidence’, and motions for a General Election, with all their attendant unpredictability and consequence.

There are potentially other, less obvious opportunities.

If the government chooses to ‘wash-up’ its legislation, rather than ditch it, then, as in 2015, there would need to be a timetable motion to make sure they could do so. That could be an avenue of attack.

There is also the question of what happens about the money supply for government. From time to time, the government passes Supply and Appropriation Bills to enable itself to spend the money identified in the Estimates. There has to be a question about whether the government could sustain its expenditure were it to prorogue in July (at least one expert I have spoken to suggests government only has enough revenue on account to sustain itself until mid-September). Whilst MPs cannot debate or amend such bills (yes, you read that correctly, take a look at Standing Order 56), were one brought forward they could vote it down and plunge the government into crisis, effectively demonstrating in very real terms that it no longer has the confidence of Parliament to govern. I am sure Charles Fox would have a glint in his eye.

In the most confrontational circumstances, in actions that would be redolent of the Civil War in their symbolism, the Speaker could slam the door of the Commons in the face of Black Rod and refuse to entertain the summons to attend the Royal Commission appointed to prorogue Parliament. Or as Rory Stewart suggests, Parliament could constitute itself separately to challenge the executive, without any constitutional authority other than that which it arrogates to itself on the basis of its members’ elected mandates.

All of these point towards one level or other of procedural or constitutional crisis. However, for any of them to be taken forward, there is another ingredient: the players.

By players, I mean those who are prepared to do, not just speak. As my grandmother would have said: “Fine words butter no parsnips.” And we have had a lot of fine words from people who are prepared to say a lot, in Parliament, in rallies, on the airwaves, but very few buttered parsnips.

An obvious key player is the Speaker.

Rightly or wrongly, comparisons have already been drawn between John Bercow and William Lenthall. Supporters point to his willingness to stand up to the executive. Detractors say he is anything but. What is indisputable is the fact he is an outspoken and driven individual who is not backwards in coming forward.

But where are the other players?

Who has the tenacity, the commitment and the cunning of Fox? Who has the eloquence and wit of Erskine? Corbyn is neither. The Liberal Democrats are currently leaderless. The Green Party is too small. The SNP has a secondary agenda that is too toxic. Stewart subordinated his principles and rhetoric on the perils of no deal to his interest in the leadership contest, voting down Parliament’s opportunity to take control.

Fine words butter no parsnips…

Where does this end?

Bluntly speaking, who knows where this will all end.

It is in the hands of 650 men and women that we have elected to represent us. Actions that once sounded preposterous are part of a conversation in which tens of millions of people feel passionately invested.

We should also be very alert to the toxic nature of this conversation, where narratives utilise the language of ‘fascist’ to describe one side and ‘traitor’ the other. Where journalists are mocked and jeered by politicians. Where the language of rape threats, throwing acid at politicians and donning khaki with a rifle in hand are normalised. Where those who feel their worldviews are summarised by one side of a Leave v. Remain narrative feel their very identity and the future of their children threatened by the other.

But there needs to be a resolution. And Parliament must own it.

Just as Leavers might do as Keir Starmer suggested and pause to consider that things did not end well for Charles I, so Remainers might note that that Charles Fox’s challenges to Pitt resulted in defeat and eighteen years out of power. At times, the current situation seems like the product of a student of constitutional history’s opium-induced nightmare, induced by binging on dystopian Netflix series and reality TV.

Neither civil war, nor eighteen years of Boris Johnson as Prime Minister are edifying prospects.

However, as much as it is incumbent on defenders of our parliamentary democracy to avoid either of those outcomes, it is also incumbent upon them to test parliament’s procedures to their very limits to protect its sovereignty. Our elected representatives must give themselves the chance to take a considered decision – even if that is to give the final say back to the people. Parliament must curb the authoritarian excesses of the hard Brexit cavaliers and the institutions of our democracy must not be usurped by a rogue Prime Minister.

Now, more than ever, we need our Charles Foxes and our Speaker Lenthall.