Andrew Defty, University of Lincoln, analyses the “parliamentary trap” Labour laid for the Government on the release of the Brexit impact assessment studies.
An opposition day debate last Wednesday saw the Labour Party deploy an obscure piece of parliamentary procedure which may force the government into releasing its Brexit impact studies. By means of a little-known procedure called a motion for a return, Labour transformed a non-binding opposition day motion into a binding resolution of the House. Labour’s approach caused some confusion in the House of Commons and had parliamentary observers reaching for a copy of Erskine May in order to determine what exactly had happened and what it meant. This post examines the background to Labour’s parliamentary trap and the implications for the Government.
The Government’s approach to opposition day debates
The background to what happened on Wednesday lies in the Government’s approach to opposition day debates in this Parliament. Opposition days provide a rare opportunity for opposition parties to set the parliamentary agenda. There are twenty opposition days in each parliamentary session. These are usually divided between opposition parties, in the last session Labour had seventeen of these while three were allocated to the SNP. Each day is then often divided in two to allow for more subjects to be debated. On Wednesday last week, Labour tabled two motions for discussion, one dealing with armed forces pay and the other on the release of the Brexit impact studies.
Opposition days provide an opportunity for opposition parties to table a motion on a subject they consider to be important. Government Ministers must come to the House and respond to the motion, speaking at the beginning and end of the debate. The Government may also table an amendment in an attempt to overturn the motion, usually by changing its meaning. There is usually then a vote. Governments with a majority can usually be assured of defeating an opposition day motion, but even if a government is defeated, opposition day motions are non-binding and the Government is not required to respond or make any policy changes as a result.
In the current parliamentary session the Government has decided to adopt a strategy of not contesting opposition day motions. Although Ministers come to the chamber to respond and Conservative MPs participate in opposition day debates; Conservative MPs, presumably under instruction from the Whips, have not been voting against the opposition motion. The reasons for this are not entirely clear, but are almost certainly a consequence of governing without a majority. It certainly saves the government from going to the trouble of martialling its MPs into the chamber for a non-binding vote which they are likely to lose anyway. It may also be designed to ensure that Labour’s victory in such votes is somewhat Pyrrhic. This point was made by the Conservative MP, Peter Bone, following a government defeat on a recent opposition day motion in which Conservative MPs abstained, when he claimed that although the opposition had won the vote, the Conservatives could not be said to have lost.
This strategy of abstaining in votes on opposition day motions has, however, caused some consternation in the chamber of the House of Commons. Following a government defeat on an opposition day motion on Universal Credit on 18th October, there was criticism from both sides of the House at the Government’s decision not to contest the vote in order to enable it to ignore the outcome. The Conservative MP, Edward Leigh, complained that the Government’s approach risked reducing the chamber to the level of a ‘university debating society’, adding, ‘what is the point of the House of Commons if we just express opinions for the sake of it? Surely when we vote, it should have some effect.’ The Speaker was also particularly exercised by the Government’s apparent neglect of Parliament, noting that, ‘it is blindingly obvious that this is an unusual situation about which there is strong opinion’ and that it would be ‘respectful to the House’ if a Minister were to come to the House and explain the government’s thinking.
Perhaps most interestingly, in response to a question from the SNP MP, Pete Wishart, about whether the Leader of the House could be compelled to explain the Government’s ‘refusal to participate in the democratic arrangements of the House’, while the Speaker made clear that he could not compel the government to respond to the vote, he added that:
…mechanisms are available to him and others, on both sides of the House, to try to secure a governmental response, if they wish. If they do, they certainly will not find the Speaker an obstacle to their endeavours.
This, coupled with the Leader of the House’s subsequent statement that the government would respond to the universal credit defeat, ‘no more than twelve weeks after the debates’, perhaps prompted Labour to search diligently for an effective trap for the Government. By the time of the opposition day on 1st November, Labour had clearly identified just such a mechanism.
A motion for a return
The opposition day motion tabled by Labour on 1st November was as follows:
That an humble Address be presented to Her Majesty, That she will be graciously pleased to give directions that the list of sectors analysed under the instruction of Her Majesty’s Ministers, and referred to in the Answer of 26 June 2017 to Question 239, be laid before this House and that the impact assessments arising from those analyses be provided to the Committee on Exiting the European Union.
As with other opposition day motions this session the Government did not seek to amend the motion and did not contest it in a vote with the result that the motion was carried and is now a resolution of the House of Commons.
However, in the wording of this motion, which was slightly different to the standard opposition day motions, Labour had set a trap for the Government. Opposition day motions, including the one on armed forces pay tabled earlier same day, usually begin with a phrase along the lines of ‘This House notes…’ The motion requesting the release of the Brexit impact assessments, however, was worded as ‘an humble Address’ to Her Majesty in what is known as, a motion for a return. It was this unusual piece of parliamentary procedure which sent observers, and Members of Parliament, to seek out Erskine May’s authoritative tome on parliamentary practice.
The relevant section of Erskine May describes a motion for a return as follows:
Each House has the power to call for the production of papers by means of a motion for a return. A return from the Privy Council or from departments headed by a Secretary of State is called for by means of an Humble Address the Queen;… The power to call for papers was frequently exercised until about the middle of the nineteenth century. It is rarely resorted to in modern circumstances since much of the information previously sought in this way is now produced in the form of Command or Act Papers but the power has a continuing importance since it may be delegated to committees, thus enabling them to send for papers and records.
Although this is not a widely used practice, by tabling a motion for a return Labour were seeking to invoke parliament’s power to call for persons, papers and records. As noted in Erskine May this power is now largely associated with parliamentary committees, but select committees have this power because it is a power of the House, not the other way around. Although, as Erskine May notes, this power is not absolute, it is generally accepted as an important parliamentary power and one which members on all sides of the House would not like to see eroded.
The motion was clearly designed to turn a non-binding opposition day motion into a binding one. Labour’s shadow Brexit secretary stated at the beginning of the debate that it was his belief that this was a binding motion which was designed to make it,
‘impossible for the Government to pull their usual Wednesday afternoon trick of not voting on Opposition day motions or not taking any notice of them.’
There was much discussion on this point in the debate, during which three different Speakers sat in the Chair, but there was some consensus on both sides of the House that the motion was binding. Jacob Rees-Mogg, for example, observed that although Erskine May does not use the word, ‘binding’ it does refer to the power of the House to call for papers and ‘power is something pretty forceful, and is much more than just an expression of will.’ Eventually, Speaker Bercow concluded that
‘…motions of this kind have traditionally been regarded as binding or effective. Consistent with that established pattern, I would expect the Vice-Chamberlain of the Household to present the Humble Address in the usual way.’
Another consequence of Labour’s tactic, which was alluded to by the Speaker, was that the request for the release of the Brexit impact studies will be made to the Queen. A ‘humble address’ is the mechanism by which Parliament communicates with the monarch and is generally used in relation to Parliament’s response to the Queen’s speech or non-contentious issues such as passing on congratulations to the monarch. Its use in this case prompted criticism from some, that Labour was trying to drag the Queen into the Brexit debate. The reason why a motion for a return refers to the monarch arises from the fact that government departments are created by royal prerogative, and are, in effect, branches of the Privy Council. Hence, Secretaries of State become Privy Counsellors and departments are designated with the prefix ‘Her Majesty’s…’, although HM Treasury appears to be the only department for which this is now widely used. As a result, as the Speaker made clear, Labour’s request will be communicated to the Queen, ‘in the usual way’, although the response, of course, will come from the government.
The passing of a motion for a return also raises the prospect of the Government being held in contempt of Parliament if it does not abide by the resolution. This was also the subject of some discussion in last week’s debate, including in relation to how long the Government might take to make the assessments available. In this case the Speaker was less willing to be drawn, noting that accusations of contempt would need to be made in writing to the Speaker, but that it was up to the House itself to arbitrate in cases of contempt.
It is not yet clear how the Government will respond to this defeat. The Chair of the Brexit Select Committee, Hilary Benn, has written to the Secretary of State for Leaving the European Union, to request that the assessments be made available and promptly. It is unlikely that the government will want to challenge parliament on this issue, not least because its negligent attitude towards opposition day votes has already prompted criticism from its own benches. Moreover, a refusal to cooperate may well be seen as eroding the power of select committees, setting a poor example to those, particularly outside parliament, who may be minded not to cooperate when called to give evidence. There has been some discussion as to whether the assessments might be redacted before being handed over, although the motion makes no provision for that, but it seems likely that the government will agree to some arrangement to make the assessments available to parliament in some form.
Free Erskine May
An interesting corollary of this episode is that it has prompted repeated calls for Erskine May to be made freely available online. While copies, including an electronic version, are freely available within Westminster, few outside can afford the £400+ price tag for the latest edition, and last week’s events led many struggling to locate their nearest copy. Making Erskine May freely available online was one of the recommendations of the Speaker’s Commission for Digital Democracy in 2015, and in response to a question the day after last week’s opposition day debate the Leader of the House agreed that it should be available online. It is to be hoped that this, along with the Government’s response to last week’s interesting exercise of parliamentary power, is not long in coming.