So far the Brexit story has had more plot-twists than Game of Thrones, although admittedly fewer fire-breathing dragons.  The latest drama arose when on Monday the Speaker John Bercow used the Erskine May, the constitutional handbook which is widely accepted as an authoritative source on parliamentary procedure, as the basis for refusing to allow another vote on the current Brexit Deal.    In short, there is a rule dating back to before the Civil War that during a Parliamentary session:

“a question being once made, and carried in the affirmative or negative, cannot be questioned again, but must stand as a judgement of the House”.

In other words, a question cannot be repeatedly presented in the hope of gaining a different result.   The principle is intended to safeguard both against parliamentary time being wasted, and more fundamentally, against undue pressure being exerted by the executive when intent upon gaining a particular result. The truth is that it does not form an impassable road-block, as the solicitor general Robert Buckland demonstrated, because theoretically one session of Parliament could be closed and open another afterwards, and as Bercow himself has confirmed, although a decision to prorogue Parliament would be unusual, it would undoubtedly be legitimate.  Furthermore, it would be open to the House to amend its standing orders, and Parliament could choose to change the rules by which it has decided to operate.

Here we are close to some of the deep principles, but also profound paradoxes within the British system.  On the one hand, it is axiomatic that the legislature is sovereign and may do whatever it likes, and if the action of Parliament were constrained it would not be truly sovereign.  And yet, this raises awkward questions about what the legislature actually is: when does changing the rules effectively change the nature of the gathering which is Parliament?  How far may one sovereign legislature bind future sovereign Parliaments?  We are perilously close here to tumbling down the rabbit-hole into Constitutional Wonderland, as these are debates over which oceans of legal ink have been split over the past 400 years or so, and the tide shows no sign of receding anytime soon.  It is fair to observe that amending parliamentary procedures do not raise issues as difficult as those of the Parliament Acts or other “Constitutional Statutes”, but all questions around their alteration, and the balance of power between constitutional actors, take us into similar territory.

Perhaps the facet of the British Constitution most clearly revealed by this latest episode in the Brexit crisis is the delicate balance between law and politics in this area.  Figures like the Speaker are meant to be neutral, but this is far from straightforward when the very nature of the role requires subjective judgements to be made. Bercow’s passionate and thought-provoking statements have undoubtedly made a great impact, particularly in relation to the role of the legislature in its relationship to the executive, which is in principle commendable, but he has also been regarded, in some quarters, as unduly political.

It is perhaps helpful to step slightly out of the present paradigm, and ask the question more widely: how great a change must be made to a question put before the House, before it can be deemed substantially different, and a vote can take place without infringing the rule against repeat votes in the same Parliament?  Realistically, there will always be room for wrangling here, but we should also wonder what happens in hypothetical scenarios where the terms of a motion are identical, but circumstances in the world have altered beyond all recognition. Undoubtedly, if the factual position has changed, then the legislature is no longer taking the same decision.

For example, suppose that Parliament was asked to impose restrictions on the import of mangos from a particular country, on the basis of concerns about a specific threat to human health, but the vote to approve such restrictions was declined, as the scientific evidence was deemed insufficient to justify damaging trade relations. However, within the same session of Parliament, 20 mango related deaths occur on UK soil, all linked to imported fruit from the same country.  Under these circumstances, could essentially the same import restrictions be placed before Parliament?  We would argue that the rule against repeat votes should not be applicable in such a case, because the external circumstances would render the question wholly distinct.

Of course, once again, there is ample room for argument about whether external factors have changed to such a degree as to make the question a new one for the purpose of repeat votes. As a result, judgement will have to be exercised, and there will be scope for accusations of political manipulation or pressure being applied, which is simply an inevitable feature of Constitutional Law in practice.  In any case, it is crucial to note as well that this is not a feature of uncodified Constitutions, and it would make not the tiniest scraplet of difference if the terms of the rule now set out in Erskine May formed part of a codified Constitution.  In fact, there would still be a need to decide how different was different enough, in relation to the drafting of the motion or the circumstances in the world.   Constitutional Law will always sit on the fault line between law and politics by virtue of its very nature (which of course, is one of the features which makes it fascinating, and a pleasure to both teach and research).

Related Articles

What is Erskine May, the £400 Constitution Handbook that guides Parliament and John Bercow’s Decisions? iNews (19/3/19)

What has John Bercow Done Now? The Guardian (18/3/19)

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