By Sir Stephen Laws QC, Senior Fellow at Policy Exchange, and former First Parliamentary Counsel from 2006-12
The Speaker is right that the “same question” rule is well precedented and would need consideration in this case. But it would be quite wrong to apply the “same question” rule to disallow a third meaningful vote on the Government’s Brexit deal. He has not yet finally decided that it will.
Since the deal was last put before the House of Commons, there have been two significant votes: on preventing a No Deal Brexit and on extending Article 50. The deal may look broadly the same but those two votes have produced fundamentally different circumstances. In addition there has been time for a more considered look at the legal effects and implications of the documents produced overnight on 11 March. The ability of the Government to put the matter back to the House should not depend on the order in which the questions were put last week or the haste in which decisions were made. Indeed, the vote for a delay of the Art 50 deadline resulted in a resolution that specifically provided for a third vote, and so implicitly gave the House’s permission to have one. The Speaker should respect that.
If there is a majority for the deal, preventing the vote would be to frustrate the will of the House. It would be deeply concerning to see a Speaker act in such a way. Those who are opposed to the deal should want to win with a majority on the substance, not by procedural manoeuvring or on a technicality, and the Speaker should allow that.
The Speaker’s reputation for impartiality has already become questionable. It is difficult to see how it could survive the application of the same question rule to a third vote on the deal when the same rule was not applied to prevent Dominic Grieve’s amendments to the business of the House motions to reopen questions that had been finally and conclusively resolved during the passage of the Bill for the Withdrawal Act – a more effective procedure than a motion of the House. It was that Act which enacted as law the rule that the rejection of the deal would produce a No Deal exit, and a procedural technicality should not now be used to frustrate the intended effect of primary legislation, even if it is legislation the House now wishes it had not passed.
Fortunately for the Government, Ministers should be able to overcome any obstacles the Speaker’s ruling places in their way. They could put down a new motion insisting on a vote on the deal “notwithstanding the practice of the House”. If they won a vote on that, there would have to be one. Alternatively, they could also skip ahead and introduce the Implementation Bill. There is nothing in the Withdrawal Act that requires the meaningful vote to come before the passage of the Bill and the Implementation Bill if passed could make the separate approval of the deal by resolution unnecessary. The least attractive option would be to prorogue Parliament and begin a new Parliamentary session.
All these options would involve taking up more Parliamentary time than just allowing another vote, which would be the sensible thing to do if the Government wish to do it and there is a real prospect of it producing a different result. Procedure exists to facilitate not to thwart the wishes of the majority on the substance, and the best test of what the majority wants is a vote, not a ruling from the Chair.