Making an unamendable A50 bill – UPDATED

Zentralbild Paul-Henri Spaak belgischer Politiker, Sozialist. Spaak war von 1936 bis jetzt in vielen Kabinetten Ministerpräsident oder Minister. 1957-1961 Generalsekretär der NATO.This is, of course, the big news from the past week. The whole Farage/Trump/ambassador thing is little more than a febrile combination of unwillingness to follow protocol, mutual back-scratching and intentional destablising, while the Autumn Statement simply underlines that no-one in government really knows what Brexit means.

But the resumption of legal contests – now in the Supreme Court – is arguably much more consequential.

As readers will recall, Miller and dos Santos saw a clear defeat of the government position in the High Court, with all judges strongly supporting the line that Parliament has to pass an Act to trigger Article 50 notification to leave the EU. The government has appealled, and now the case will be joined by the Northern Irish action that was defeated earlier in the month in Belfast, with additional representations from the Scottish executive.

As an appeal, the government is more or less bound to follow the same line of argumentation as before, which it appears to be doing, so there’s a priori not much chance they’ll win.

However, sources did indicate that the government has its fall-back in place, namely a “three-line bill” that would be almost impossible to amend: ‘bombproof‘, indeed.

One of the many things I’m not is a specialist on Parliamentary procedure, but I am very lucky that a couple of doors down from my office is Louise Thompson, who is such a specialist (and a very helpful colleague too). She pointed me to Griffith, the ‘seminal text’ apparently, who sets out the grounds for amendments. From this the following points are central.

Firstly, the key grounds of accepting amendments for debate (in this context) are, in rising order of seriousness, that: they don’t render all or part of the bill inoperative; they don’t delay the entry into force of the bill in England until a similar bill has passed in Scotland; they aren’t inconsistent with the bill as agreed by committee; and they aren’t relevant to the subject matter of the bill.

The first two grounds simply mean that an amendment to not invoke Article 50 wouldn’t be acceptable, any more than any effort to use Scotland to delay matters. This latter might come into play in the Supreme Court, if it decides that elements such as the Act of Union require Scottish approval and involvement (although this seems unlikely).

The inconsistency issue might matter more, although the government might be able to get to the committee stage with its text intact, especially if it’s as brief as indicated.

Thus the key test will be irrelevance. Assuming that the government draws the line as tightly as possible, then we’d expect the bill to be one with the title “to authorise the government to make notification under Article 50 TFEU”, ie nothing at all about the bigger process, only the very narrow triggering. The challenge to amenders would be whether they could add in any scrutiny powers for Parliament as part of that notification. At a first glance, the argument would have to run that the triggering power necessarily has to be linked to scrutiny, because of the wider consequences of notification, including the irreversibility of the process (which both the government and Miller have argued in their court submissions).

Which leads us to the second key point, namely that it is the chair of the committee who determines what is admissable, working on the advice of the clerk and the bill’s draftsman. Since we don’t know quite how this would be pitched, it’s not possible to be certain about who that chair would be, but the government would presumably want to have someone sympathetic to keeping the bill as proposed. Griffith does discuss at length the power of selection, but doesn’t provide a final answer on how definitive the chair’s power might be, beyond noting that “the chair is often wiser to yied” (p.82) to discontent in committee.

The picture that emerges from Griffith is that if there is careful drafting and a determined stance by the chair, then amendments will be very difficult to achieve. This, in turn, suggests that the government will have to be steely in this matter if it is to manage both remainers and hard brexiteers: it will be a key test of how much confidence the government commands in the house and (more importantly) in its party.

This matters because if amendments can’t happen, then the only active options open to remainers are to use the Lords (who are under warning about just this) to delay or amend, or to try and defeat the bill altogether.

Which brings us to Labour. Anyone reading All Out War, by Tim Shipman, will have been struck by the degree of indifference/incompetence/sabotage of the Remain campaign by the party leadership. Given the subsequent entrenchment of those same individuals – Corbyn, McDonnell, Milne – since the leadership contest, there is very little reason to suspect that Labour will put out any concerted effort to challenge – or even scrutinise – this bill. And without Labour, any Tory remain rebels will have a much weaker position.


UPDATE 1010:

Louise has now read this and came by to point out that this bill is likely to be heard by the House as a whole, rather than in one of the bill committees: as the Parliament page helpfully tells us, when this happens, it is the deputy speaker who chairs. This means that Paul Daly’s suggestion of PACAC chair Bernard Jenkin probably doesn’t fly, other issues notwithstanding, and that the selection process is out of government hands even more than otherwise, which might strengthen the hand of amenders.


UPDATE 1115:

Well, it’s nice to see people read this stuff, even if to point out my shortcomings. Uncivil Still notes that I’m using amendment rules for the third reading (i.e. after committee), when committee stage is more likely to see challenges. They also note here is the option in the second reading of a reasoned amendment, which allows for the denial of that second reading and the effective abandonment of the bill. Again, this brings us back to the final point, namely that without Labour playing ball with remain rebels, this doesn’t work.

BTW Louise is now checking with Parliament about which Deputy Speaker would chair the committee in the House, as no-one seems to know for sure.