Theresa May says MPs who want a new referendum should vote for her legislation and try to amend it. They shouldn’t. They have better ways to enforce their will.
The prime minister’s offer yesterday to allow the House of Commons to vote on the holding of a new referendum was meaningless. If the Withdrawal Agreement Bill (WAB) passes its second reading, MPs would be able to propose an amendment for a referendum anyway.
Given that the WAB seems unlikely to get a second reading, supporters of a People’s Vote need to find another way of putting the issue before Parliament. There are quite a few options.
Four ways to give their view
First, they could take control of the order paper by amending a government motion setting out the “business of the house”. This is what they did to prevent a no deal Brexit in March and April. MPs would have to suspend standing order 14, which gives government business precedence in the Commons. MPs could then debate whether to hold a new referendum.
Second, opposition parties have 20 days each Parliamentary session when they determine the subject for debate in the Commons. There is no reason why they couldn’t debate whether there should be a referendum. The snag is that the current session has been going for almost two years, and the opposition has only a day and a half left as of right. The government could give them some more, but there is no requirement for it to do so.
Third, an amendment calling for a referendum could be made to the next Queen’s Speech. There is likely to be one if there is a new Tory leader. The Speaker allowed just such an amendment on an EU referendum to be debated in 2013 and David Cameron’s government agreed to it.
Fourth, if the government managed to block all these routes, MPs could call for an emergency debate on whether to hold a referendum under standing order 24. They would have to convince the Speaker that the matter was really urgent. He is supposed to “have regard to the probability of the matter being brought before the House in time by other means”. But if all the other options were closed, MPs would seem to have a good chance of convincing him.
Two ways to change the law
In all four cases, if MPs merely called for a referendum, the government could theoretically ignore them. The moral pressure on the prime minister to follow the will of the Commons would be great. But he or she would not be legally bound to do so.
There are, though, two ways in which MPs could force the government’s hand if it was being recalcitrant – as indeed, Labour’s Yvette Cooper did in April when MPs passed emergency legislation telling Theresa May to ask the EU for extra time.
First, they could bring forward a Bill to enable a referendum and then use the first option to ensure that it was debated – perhaps taking control of the order paper as explained above.
Second, MPs could amend a government Bill that concerned Brexit. If, for example, a new Tory leader proposed a no deal Brexit, then they might need to bring emergency legislation to the Commons to prevent chaos at the borders. They would need to pass the Trade Bill (currently stuck in the Commons), without which the UK would have no trading mechanism to comply with WTO rules.
In such a case, there would be a further issue: how to force the government to release the funds necessary to pay for a referendum. By convention, the government tables “money resolutions” when public money is required as a consequence of legislation. But if the prime minister refused to do this, MPs could suspend standing order 48 that sets out the convention and propose the money resolution themselves.
So MPs shouldn’t fall for the prime minister’s plea to vote for the “second reading” of her WAB. They should vote it down and work on alternatives.
Even if the MPs suddenly find the courage, organisation and numbers to do this, what are the timing issues?