In an unprecedented crisis, how useful is precedent?

Brexit has pushed British politics into uncharted waters in which the furore over Speaker of the House of Commons’ failure to follow precedent in Parliamentary procedure seems slightly surreal. In an unprecedented situation, perhaps the ability of the Speaker to create a new precedent should be seen as a strength of the constitution not a weakness?

John Bercow has been the object of much criticism from (overwhelmingly Conservative) ‘Leaver’ MPs for his decision to allow an amendment to a government motion (‘the Grieve amendment) on the grounds that it is ‘unprecedented’ for such a motion (required in order for the Commons to have a debate) to be amended.

The Grieve amendment proposed that in the event that the government loses next week’s vote on the Brexit deal agreed by the Prime Minister with the EU the Commons will have the right to vote on alternatives – which will likely run from no-deal, via ‘managed no-deal’ (whatever that means) and ‘Norway-plus’, to approving a second referendum.

Bercow’s decision is therefore of enormous significance, and the fact that MPs voted in favour of the Grieve amendment may well turn out to be a key moment in determining the outcome of what is a highly-charged and acrimonious debate over Brexit.

Not surprisingly, those wishing to keep alternative options off the table were livid, and they attacked the Speaker for his break with Parliamentary precedent and accused him of provoking a ‘constitutional crisis‘.

There is, however, something faintly bizarre about assuming past precedent must necessarily govern the operation of the House of Commons in a situation without precedent.

Supporters of Britain’s ‘unwritten’ constitution (often, ironically, Conservative MPs) have in the past seen one of its key strengths as its flexibility. Actually, these days, considerably more of our constitution is written than is assumed, but Parliamentary procedure is one area in which there remains a good deal of murkiness. The closest the House of Commons has to a rule-book is ‘Erskine May’ – first compiled in 1844 by the then Clerk of the House of Commons, Thomas Erskine May.

Ironically, Erskine May has been described by the present Speaker as ‘the definitive guide to parliamentary procedure’ (although, oddly in this age of digital sources and ‘open government’, it is not freely available to British voters via the internet. You either have to go to a library – and good luck with that if you don’t have access to a university library – or buy your own copy, which costs a cool £408). And there are many examples of Bercow speaking approvingly of precedent.

But for all its constitutional weight, Erskine May amounts to no more than a delineation of procedure on the basis of past precedent and conventions. It is also a living document, now in its twenty-fourth edition, that has evolved over time as the environment within which the Commons operated changed. In short, Erskine May offers a set of rules that have evolved over nearly two centuries but though the rules guide Parliamentary procedure they can change.

The problem with ‘precedent’ is that we are today a long way off the British political map as a result of Brexit. The attempt to achieve it may not be ‘destroying Britain’s constitution’, as some have put it, but is certainly testing it in unprecedented ways.

One of the reasons Brexit is so testing of the constitution is that the relationship of the UK towards ‘Europe’ has been politically problematic since the early talks that led to the creation of the European Economic Community, the forerunner of the now ‘European Union’. Britain stood aside from the new institution established by the Treaty of Rome in 1957, then chose to form another competing cluster of nations (the European Free Trade Area), then became disenchanted with that at the start of the 1960s. It then attempted twice to enter the then European Economic Community before finally joining in 1973. Having joined, it then promptly held a referendum on membership in 1975, which the electorate endorsed (the subject of an excellent recent book by Robert Saunders, Yes to Europe!), then one in 2016 that repudiated it.

But membership of the EEC/EU was not just politically controversial in the UK, it was consistently a challenge for its political parties politically. Each of the two main parties has over time flipped between support and opposition. And each of them has always been internally divided, with those intra-party divisions are all too evident today.

The key issue here is that the government of the UK has traditionally been operated by two major political parties that are meant to consolidate and mediate political support for alternative policies. This they are plainly no longer doing (and, in truth, have not been doing for some time but Brexit has made the failure all too clear – see my July 2016 PolicyBristol blog post). Each of the two major party leaderships is at odds with a significant fraction of their own MPs, their members, and their potential voters. A cross-party coalition of around three hundred MPs appears to support a second referendum on Brexit, which at the point I am writing is supported by neither of the two main party leaders but which is by some margin the most popular of the three most likely options in Britain’s ‘Brexit trilemma’.

In addition, in ‘normal times’ Brexit would be the responsibility of a government with a clear majority in the House of Commons. Instead, the May government has a minority of MPs, a third of which wish to replace her as their leader. In these conditions the government is seeking to push Mrs May’s Brexit deal through the House of Commons in a vote that almost nobody seems to think can be won.

The result of all this is that the UK’s political system has suffered the equivalent of a stroke.

In this unprecedented situation what use is precedent? If the constitution is under strain, and precedent is providing an unreliable guide, then perhaps an ‘unprecedented’ evolution of that constitution is a sign of the system working?

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