Published: 3 September, 2019
New content: 14 October, 2019; 18 October, 2019; 24 October, 2019; 28 October, 2019
Last updated: 8 November, 2019
The UK’s Brexit politics are engaging a wide array of laws, conventions and parliamentary procedures. These are interacting in intricate ways. In 2019, they featured in an historic constitutional tussle between government and Parliament. And they are part of a process which is both exposing, and prompting thinking about reforms to, the way the UK’s parliamentary democracy works.
This page provides constitutional and procedural information needed to navigate Brexit in Parliament in Autumn 2019. Following the dissolution of Parliament on 6 November, the page is no longer being updated. A new version will be published for the start of the new Parliament on 17 December.
What does this page cover?
Four top-level Brexit outcomes were, theoretically, possible on 31 October, 2019:
- The UK leaves the EU without a Withdrawal Agreement in force
- The UK leaves the EU with a Withdrawal Agreement in force
- The UK does not leave the EU because it has requested and agreed with the EU an extension to the Article 50 period, or because a Withdrawal Agreement has been ratified which comes into force on a date later than 31 October
- The UK does not leave the EU because it has withdrawn its notification of its intent to leave
The first of these takes place automatically unless the developments needed to bring about one of the remaining three possibilities happen in time.
In the event, the outcome on 31 October was the third of these possibilities. On 19 October, the UK submitted a request for an extension of the Article 50 period until 31 January, 2020, in accordance with the Benn Act. On 29 October, the European Council decided to extend the Article 50 period accordingly and the UK agreed.
The default position in law is now that the UK will leave the EU on 31 January, 2020 without a Withdrawal Agreement in force.
The process by which a state withdraws from the EU is an international process governed by Article 50 of the Treaty on European Union (TEU).
Once the UK on 29 March, 2017 gave notice to the EU, under Article 50, of its intention to leave, the date of the UK’s exit is determined within the international Article 50 process. As a consequence, the date is determined jointly between the UK and EU.
Under Article 50, a state leaves the EU when the EU Treaties cease to apply to it. For these purposes, the EU Treaties are the TEU and the Treaty on the Functioning of the EU (TFEU).
Under Article 50, a state automatically leaves the EU two years after it gives notice of its intent to leave, unless:
a Withdrawal Agreement between it and the EU comes into force on another date, in which case it leaves the EU on that date; or
the European Council decides to extend the two-year period, in agreement with the departing state. Any decision by the European Council to extend the Article 50 period must be taken unanimously.
Article 50 states that the EU “shall negotiate and conclude” a Withdrawal Agreement with the departing state, “taking account of the framework for its future relationship with the Union”. In the Brexit process, that framework has come to be set out in an EU-UK Political Declaration.
The European Union (Withdrawal) (No. 2) Act 2019 (the ‘Benn Act’) was passed in three days between 4 and 6 September, 2019, against the government’s wishes.
The Benn Act only concerns a UK request for, and – if the EU agrees one – possible parliamentary approval of, an extension of the Article 50 period which was otherwise due to expire on 31 October.
The Benn Act did not on its own guarantee any particular Brexit outcome on 31 October:
it could not compel any particular response from the EU to any Article 50 extension request from the UK;
it is distinct from the statutory conditions required for UK ratification of the Withdrawal Agreement established by the EU (Withdrawal) Act 2018;
it compelled the government to request, by 19 October, 2019, an extension of the Article 50 period to 31 January, 2019 if certain conditions are not met, but it would have allowed that request to be withdrawn or modified if the conditions were met between 19 and 30 October.
Extension request obligation
The Benn Act obliged the Prime Minister to send a letter on or before 19 October, 2019 to the President of the European Council, requesting an extension to 31 January, 2020 of the Article 50 period due to expire on 31 October, 2019, unless one or other of two sets of conditions was met:
The Prime Minister was not obliged to send the Article 50 extension request letter if, by 19 October, the government had:
- laid before Parliament a statement that the UK has concluded a Withdrawal Agreement and a copy of the Agreement; and
- successfully moved in the House of Commons a motion to approve the Agreement; and
- tabled a motion to take note of the Agreement in the House of Lords, and the Lords has either debated the motion or failed to conclude such a debate within two Lords sitting days after the day on which the Commons agrees its approval motion.
B. ‘No deal’
The Prime Minister was not obliged to send the Article 50 extension request letter if, by 19 October, the government had:
- laid before Parliament a statement that the UK is to leave the EU without a Withdrawal Agreement having been reached; and
- successfully moved in the House of Commons a motion to approve a ‘no-deal’ Brexit, using wording specified in the Act; and
- tabled a motion to take note of the statement in the House of Lords, and the Lords has either debated the motion or failed to conclude such a debate within two Lords sitting days after the day on which the Commons agrees its ‘no-deal’ approval motion.
17-19 October: Government attempt to meet the ‘deal’ conditions
To try to meet the conditions for nullifying its obligation under the Benn Act to request an Article 50 extension, the government secured for 19 October, 2019 the first Saturday sitting of both Houses of Parliament since 1982.
On 17 October, the government:
saw that agreement endorsed by the European Council; and
The government also negotiated with the EU a revised Political Declaration. The Political Declaration is the “framework for [the EU’s] future relationship” with a withdrawing state which Article 50 of the Treaty on European Union (TEU) requires alongside the Withdrawal Agreement. The European Council also endorsed this revised Political Declaration on 17 October.
This process of renegotiation and agreement with the EU opened the way to the government potentially being able to nullify, via the ‘deal’ route, on 19 October, its Benn Act obligation to request an Article 50 extension.
On 19 October, the government laid before Parliament a copy of the full revised Withdrawal Agreement, together with a statement that the UK had concluded a Withdrawal Agreement. This met its laying requirements under the Benn Act.
19 October outcome: the Letwin amendment
The ex-Conservative independent MP Sir Oliver Letwin successfully moved an amendment to the government motion which replaced the government’s approval wording with alternative text. This text explicitly declined to approve the Withdrawal Agreement “unless and until implementing legislation is passed”. The House then approved the motion as amended.
As a consequence of the Letwin amendment, the conditions for avoiding the Benn Act requirement to request an Article 50 extension were not met.
Later on 19 October, the UK sent to the European Council a request that the Article 50 period be extended to 31 January, 2020.
Parliamentary approval of an Article 50 extension
The Benn Act also established the UK processes that had to take place if the European Council agreed to an Article 50 extension beyond 31 October, 2019:
- If the European Council agreed an extension to 31 January, 2020, as the UK requested under the Benn Act, the Act required the Prime Minister immediately to agree to it.
- If the European Council agreed an extension to a date other than 31 January, 2020, the default provision is that the Prime Minister was also obliged to agree, within two calendar days of the European Council decision or before the end of 30 October, whichever was the sooner. However, this obligation falls away if, within two calendar days of the European Council decision or before the end of 30 October (whichever was the sooner), the House of Commons decided not to agree a government motion to approve the new Article 50 expiry date, worded as specified in the Benn Act.
The Benn Act is silent on what had to occur if the House of Commons were to decide not to pass a motion approving an Article 50 extension to a date other than 31 January, 2020.
However, the Benn Act includes a blanket provision that nothing in the relevant section of the Act prevents the Prime Minister from agreeing to an Article 50 extension using the government’s prerogative powers in the normal way.
The Benn Act also strengthened the obligation on the government to amend ‘exit day’ in UK law to match any revised date for the UK’s withdrawal from the EU. However, the Act disapplies this strengthening provision if the House of Commons had either approved a no-deal Brexit, or declined to pass a motion approving an extension to a date other than 31 January, 2020.
In the Brexit context, ‘exit day’ is a concept in domestic UK law, established by the EU (Withdrawal) Act 2018. It is not a term in international or EU law and therefore cannot determine the date on which the UK leaves the EU.
Instead, ‘exit day’ functions as the day on which a raft of changes in UK law take place.
However, the date of ‘exit day’ in UK law needs to be the same as the date on which the UK leaves the EU. This is because the changes in UK law that take place on ‘exit day’ are those that need to take place at the moment when the UK is no longer bound by obligations under the EU Treaties, and EU law ceases to apply automatically. The concept of ‘exit day’ allows the UK’s statute book to ‘match’ its changed international position. Most importantly, ‘exit day’ is the day on which the 1972 European Communities Act is repealed, but provisions in a host of Acts and Statutory Instruments also specify ‘exit day’ as the date on which sweeping changes to the UK statute book take place.
The EU (Withdrawal) Act 2018 defined ‘exit day’ as 29 March, 2019. However, the Act also gave Ministers a delegated power to make a Statutory Instrument to amend this definition to match the date on which the EU Treaties cease to apply to the UK, if this date were other than 29 March.
The EU (Withdrawal) Act 2018 specified that the ‘exit day’ SI was to be subject to the draft affirmative procedure – that is, the Minister could not make it or bring it into force unless and until it was approved by both Houses of Parliament. However, before the second extension of the Article 50 period, the EU (Withdrawal) Act 2019 (the Cooper-Letwin Bill, as was) switched the parliamentary scrutiny procedure applicable to all future iterations of the ‘exit day’ SI from the affirmative to the negative procedure. As a result, the Minister can make the SI and bring it into force immediately. This occurred first on 11 April and then again on 30 October.
The UK will leave the EU ‘with a deal’ if, on the day of its departure, a Withdrawal Agreement is ratified and able to come into force at the start of the following day.
Any state’s ratification of a treaty, such as the Withdrawal Agreement, is done by its executive – in the UK’s case, the government.
Any state or treaty-making organisation determines for itself any internal process that it goes through prior to ratification.
EU: European Parliament consent
In the case of the Withdrawal Agreement, the EU may not conclude the Agreement (equivalent, in EU terminology, to ratification) until the European Parliament has consented.
It had always been intended on both sides that the European Parliament would consent only after the House of Commons had at least approved the Withdrawal Agreement in the ‘meaningful vote’. The European Parliament did not consent to conclusion of the Withdrawal Agreement during its 21-24 October plenary session, and on 24 October, 2019, European Parliament leaders said that the Parliament’s “consent procedure would begin only after the ratification of the Withdrawal Agreement by the United Kingdom”.
UK: Uniquely challenging ratification conditions
The UK’s default treaty ratification process involves only a weak negative power for the House of Commons under the Constitutional Reform and Governance Act 2010 (the CRAG Act). Under this process, the government can ratify a treaty unless the House objects, and an objection may only delay ratification. Moreover, the government may set aside the provisions of the CRAG Act in urgent circumstances.
Parliament’s real power in any treaty ratification process comes if the treaty requires changes to be made to UK law, and those changes are made via primary legislation.
For the Withdrawal Agreement, section 13 of the EU (Withdrawal) Act 2018 established a uniquely challenging set of ratification conditions, over and above the normal UK process.
the government has laid before Parliament a statement that political agreement with the EU has been reached, and copies of both the Withdrawal Agreement and the framework for the future relationship (the Political Declaration); and
the House of Commons has approved both the Withdrawal Agreement and the Political Declaration by agreeing to one or more government approval motion(s) (the ‘meaningful vote’); and
the government has tabled a motion to take note of the Withdrawal Agreement and Political Declaration in the House of Lords, and the Lords has either debated the motion or not concluded such a debate within five sitting days of the Commons’ ‘meaningful vote’; and
an Act of Parliament has been passed to approve and implement the Withdrawal Agreement, as a statutory requirement, not merely as a matter of normal UK treaty practice (the Bill slated to become this Act is the Withdrawal Agreement Bill, WAB); and
either the ratification requirements of the CRAG Act have been fulfilled, or provision has been made to exempt the Withdrawal Agreement from them.
Both the May and Johnson governments laid copies of their draft Withdrawal Agreements and accompanying statements, to comply with the laying requirements of the EU (Withdrawal) Act 2018 (the latter on 19 October).
However, the House of Commons has declined three times to agree a government motion to approve a Withdrawal Agreement for the purposes of the EU (Withdrawal) Act 2018:
on 19 October, on a Johnson government motion to approve the Political Declaration for the purposes of the EU (Withdrawal) Act 2018, together with the Withdrawal Agreement jointly for the purposes of the EU (Withdrawal) Act 2018 and the Benn Act.
On 29 March, the House of Commons also declined to agree a government motion to approve the May government’s Withdrawal Agreement alone, without the Political Declaration. This motion was not moved under the terms of the EU(W)A 2018.
Despite its defeat on its ‘meaningful vote’ motion on 19 October, on 21 October the Johnson government embarked on the legislative element of the UK ratification process, by introducing the Withdrawal Agreement Bill (WAB) to Parliament. The House of Commons gave the Bill a 2nd Reading the following day. However, the House then rejected the government’s proposed programme motion, which was intended to timetable the Bill’s House of Commons consideration in three days. Since then, the government has not proceeded with further consideration of the Bill.
In 2019, a Queen’s Speech to open the 2019 session was held on 14 October. The House of Commons’ debate on its Address in response concluded on 24 October.
As of 8 November, it is not yet clear when the Queen’s Speech will be held at the start of the 2019-20 session, after the new Parliament first meets on 17 December.
The Queen’s Speech is the central event in the State Opening of Parliament. This occasion marks the opening of a new session of Parliament. In any session, neither House can conduct any normal public business before the Queen’s Speech.
A new parliamentary session is started:
- during a single Parliament after a prorogation (as on 14 October, 2019); and
- at the start of a new Parliament after a general election (as on 17 December, 2019).
The date of the first day of a new session is set by proclamation, by the Queen, in an Order in Council – in the Order proroguing Parliament, in the case of a new session following only a prorogation (as with the first opening of a new session in 2019); and in the Order summoning the new Parliament, in the case of a new session after a general election (as with 2017 and the second opening of a new session in 2019).
If the new session is starting during a Parliament, after only a prorogation (as on 14 October 2019), the Queen’s Speech takes place on the first day of the new session.
If the new session is also the start of a new Parliament, after a general election, the Queen’s Speech and State Opening take place a few days after the first day of the new session. This is because, at the start of a new Parliament, events take place before the Queen’s Speech that take several days:
The House of Commons must elect its Speaker, as its first item of business. This must take place before the Queen’s Speech.
MPs and Peers must be sworn in. This can take place after the Queen’s Speech, but for the vast majority of MPs it will normally take place beforehand: an MP may not sit, speak or vote in the Chamber (except in the election of the Speaker), without having been sworn in.
In 2017, these two processes were compressed to a total of three days. Normally, they take several more.
Any new parliamentary session is assumed to last roughly a year, and certainly into the following calendar year, unless and until something happens to lengthen or shorten it. This may occur at any point. For example:
The conditions for an early general election may be met at any time.
The government may request a prorogation at any point (although it would now need to be mindful of the 24 September ruling of the Supreme Court that a prorogation is unlawful if it has the “effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions”).
In 2010 and 2017, the government indicated four months and nine days, respectively, after the general election held in that year that it planned a two-year session.
The Queen’s Speech at the start of a new parliamentary session is written by the government for the Queen to read out. It is primarily a vehicle for the government to set out its legislative programme for the new session. The Speech normally identifies major pieces of primary legislation – that is, Bills – that the government plans to publish or introduce to Parliament in the new session. The Speech also typically provides a general presentation of the government’s main policy objectives and priorities, in foreign as well as domestic affairs. It may include an announcement of any forthcoming State Visits.
There is no requirement that in any session the government can only introduce Bills that were included in the Queen’s Speech. In procedural terms, government Bills that were included in the Queen’s Speech are treated no differently from government Bills that were not.
In the Brexit context, the most important element of the 2019 Queen’s Speech was that it announced the government’s intention to introduce:
the Withdrawal Agreement Bill (WAB) to implement the UK-EU Withdrawal Agreement;
five Brexit bills that were introduced in the 2017-19 session but not completed (the Agriculture, Fisheries and Trade Bills, the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, and the Financial Services Bill); and
the Environment Bill, which in the previous session was only published in draft and not introduced.
Of these, all but the Financial Services Bill were included in the 2017 Queen’s Speech.
Each House must respond to the Queen’s Speech. This response takes the form of a Humble Address, in which the House concerned addresses the Queen directly, to thank her for the Speech.
In each House, a debate takes place on a motion that the Humble Address be presented to the Queen (so the Queen’s Speech debate is officially the ‘Debate on the Address’). This motion must be agreed by the House concerned, and it is amendable. The debate on this motion allows a wide-ranging debate on virtually any aspect of government policy. The Queen’s Speech debate normally lasts five or six sitting days.
In each House, the debate on the Address is normally the first main item of business of the new session. However, before the start of the debate, each House gives a 1st Reading to a Bill, as a formality to make the point that it is able to consider business other than that outlined in the Queen’s Speech. The Bills concerned are always the Select Vestries Bill in the Lords and the Outlawries Bill in the Commons.
In the Commons, before the start of the debate, the Speaker also makes a statement about the “duties and responsibilities of Members of this House”. The government may also announce the introduction of any Bills that are already ready.
Organisation of the Queen’s Speech debate
Although the debate on the Address is government business, the motion is not moved in either House by a minister. Instead, it is moved and seconded by government backbenchers, picked by the government. This is the only occasion in the UK Parliament on which a motion is seconded.
In the House of Commons, the speeches by the proposer and seconder are followed by those of the Leader of the Opposition, the Prime Minister, the leader of the second-largest opposition party, and then other Members.
This first day of the debate on the Address in the House of Commons is a general one. Subsequent days are themed, with the subjects usually announced by the Speaker at the start of the debate.
In the Lords, the first day of the debate consists only of the speeches by the mover and seconder of the motion. Subsequent days are themed, not necessarily according to the same topics as in the Commons.
With respect to other business that may be taken in the House of Commons before the conclusion of the debate on the Address, there is a distinction between the first and subsequent days.
On the first day of the debate, there can be no Urgent Questions nor applications for emergency debates under Standing Order No. 24.
Otherwise, public business in the Chamber can carry on as normal during the debate on the Address. The debate is government business, and the government would normally schedule the debate on the Address rather than other business, but it may give priority to other business instead.
After the opening of the 2019 session on 14 October, the government broke off the Queen’s Speech debate after four days, scheduled three days on which the main business was Brexit-related, and then resumed the Queen’s Speech debate for a final two days.
At the start of the 2019 session, the government also decided that the first set of oral questions to Ministers would take place on Thursday 17 October. The first Prime Minister’s Questions of the new session thus took place on Wednesday 23 October.
Scheduling the Queen’s Speech debate
The debate on the Address is government business. The government thus decides, each time, on the number and timing of parliamentary days to allocate to it.
The government does not need to secure either House’s agreement to a business motion to schedule the Queen’s Speech debate. Normally, the debate on the Address lasts five or six sitting days (the last four House of Commons debates on the Address, in 2015, 2016, 2017 and 2019, each lasted six days). The House of Lords’ debate is sometimes a day shorter than the Commons’.
In 2019, when the government originally (in August) announced plans for a prorogation followed by a Queen’s Speech on 14 October, it indicated that the debate on the Address would last until 22 October. That prorogation was nullified as unlawful by the Supreme Court on 24 September.
The government initially adhered to this planned timetable when it secured a lawful prorogation, ahead of a Queen’s Speech still on 14 October.
Like the Lords, the House of Commons held four days of debate on the Queen’s Speech between 14 and 17 October. However, after the House of Commons on 19 October declined to approve the revised draft Withdrawal Agreement, and thus obliged the government to request an Article 50 extension, the government decided to break off the Queen’s Speech debate in the House of Commons, in favour of starting proceedings on the Withdrawal Agreement Bill.
However, after the House of Commons on 22 October rejected the government’s proposed programme motion for the Withdrawal Agreement Bill, the government paused that Bill and reverted to the Queen’s Speech debate. Fifth and sixth days of debate on the Address were held on 23 and 24 October. This conforms to the recent norm of six days of debate.
Amendments to the House of Commons motion
As is normal, in 2019 the House of Lords did not vote on its motion in response to the Queen’s Speech. It agreed the motion without amendment or dissent.
The House of Commons does vote on the government’s motion in response to the Queen’s Speech.
In addition, under Standing Order No. 33(1), the Speaker may select up to four amendments to the motion for debate and decision. Of these, one may be moved on the penultimate day of debate, and up to three on the final day. Usually, the amendment moved on the penultimate day and one of those moved on the final day are tabled by the Leader of the Opposition.
The motion on the Address was last amended in 2016.
In 2019, on the penultimate day of the House of Commons’ debate (which was focused on the NHS), the Speaker selected and the House rejected a Labour amendment by 310 to 282.
On the final day of the House of Commons debate, 24 October, the Speaker selected two amendments for debate:
The House then agreed the original government motion by 310 to 294.
That the government enjoys the confidence of the House of Commons is one of the central principles of the UK constitution.
The Cabinet Manual states:
The government of the day holds office by virtue of its ability to command the confidence of the House of Commons. … The ability of a government to command the confidence of the elected House of Commons is central to its authority to govern. It is tested by votes on motions of confidence, or no confidence. Commanding the confidence of the House of Commons is not the same as having a majority or winning every vote. Prime Ministers hold office unless and until they resign. If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government.
If the government no longer commands the confidence of the House of Commons, by convention it is expected to resign, once it is clear that there is an alternative government better placed to command the confidence of the House.
The principle of confidence has been in the spotlight in 2019 because the Conservative government no longer had a working majority in the House of Commons.
This was also the first period since passage of the 2011 Fixed-term Parliaments Act (FTPA) during which the government’s ability to command the confidence of the House was in doubt.
How can the House of Commons demonstrate no-confidence in the government?
How can the House of Commons demonstrate no-confidence in the government?
In the UK system, the government does not have to demonstrate explicitly that it commands the confidence of the House of Commons. Instead, it is assumed that the government commands confidence unless and until it is shown that it does not.
One confidence-related question is thus how the House of Commons can show that it no longer has confidence in the government.
In its December 2018 report on the confidence issue, the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) distinguished three broad ways in which the House could do this:
by agreeing an explicit motion of no-confidence (as it did against the government of James Callaghan in 1979);
by declining to pass an explicit motion of confidence moved by the government in itself; or
by defeating the government on a substantive question to which the issue of confidence has been attached.
Within this last category, the Committee further distinguished between:
specific policy questions which the government might explicitly make into matters of confidence; and
what it called “implicit votes of confidence”, primarily votes on the Budget and Queen’s Speech.
The Committee noted that there was some uncertainty over whether the Budget and Queen’s Speech were always confidence matters. It suggested that this could depend on political circumstances. However, it also noted that the Cabinet Manual lists the Queen’s Speech as a test of the government’s ability to command confidence.
No-confidence and an early general election
No-confidence and an early general election
A second set of confidence-related questions has arisen since passage of the Fixed-term Parliaments Act (FTPA) in 2011.
The FTPA establishes the expression by the House of Commons of no-confidence in the government, via agreement of a no-confidence motion as worded in the Act, as one route to an early general election.
This has raised the question of whether passage of an FTPA-compliant no-confidence motion is the only way in which the House of Commons could demonstrate no-confidence in the government. To put the question the other way around: to express no-confidence in the government, must the House of Commons trigger the process which by law may result in an early general election?
A related question is whether only an FTPA-compliant no-confidence motion would enjoy the conventional right to be debated speedily in the House of Commons in government time, or whether other no-confidence motions would also continue to enjoy this privilege.
In its December 2018 report on the confidence issue, the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) asserted the distinction between no-confidence under the FTPA, which is part of the process of triggering an early general election, and other expressions of no-confidence. The Committee said:
It is a misconception that the mechanism for bringing about an early general election provided by … the Fixed-term Parliaments Act 2011 has superseded the pre-existing conventions around the confidence of the House in the Government. … the Act in no way affects the fundamental principle that the Government’s authority to govern rests on the confidence of the House, however it chooses to express it. If the House of Commons resolves, by whatever means, that it has no confidence in Her Majesty’s Government, this removes the incumbent administration’s authority to govern. It is for Parliament, not the Government, to assert the terms under which this confidence (or lack thereof) is expressed. This can be through the Fixed-term Parliaments Act 2011 statutory motion, or through a non-statutory motion of no confidence, or through a vote to which the matter of confidence has been clearly attached by the Government. Any expression of no confidence by the House in the government, removes the authority to govern.
A general election can normally only be held under the terms of the 2011 Fixed-term Parliaments Act (FTPA). A key feature of the FTPA is that it removed the Prime Minister’s power to – in effect – call a general election but, with respect to an early poll held under its terms, not his or her power to (in effect) set its date.
The FTPA specifies that a general election is normally to be held every five years, on the first Thursday in May.
If a general election is held early, through the fulfilment of either of the two sets of conditions that are set out in the FTPA, the FTPA specifies that the next general election is to be held on the first Thursday in May in the fifth calendar year following that in which the early election was held, if that election was held on or after the first Thursday in May; or on the first Thursday in May in the fourth calendar year following that in which the early election was held, if that election was held before the first Thursday in May.
In 2019, an early general election is being held not under the terms of the FTPA but by virtue of a dedicated Act of Parliament, the Early Parliamentary General Election Act 2019. This Act specifies that an early election is to be held on 12 December, 2019, and that this day is to count as if it were the day of an early general election held under the FTPA.
Under the FTPA, the next general election will thus be due on Thursday 2 May, 2024.
Under the FTPA, the Prime Minister can delay the date of a scheduled general election by up to two months, by making a Statutory Instrument which would require parliamentary approval.
Two routes to an early general election
Two routes to an early general election
Under the Fixed-term Parliaments Act (FTPA), an early general election can only be held if one or other of two sets of conditions is met.
These conditions are:
A. Successful House of Commons motion for an early general election
In this first route to an early general election, the House of Commons agrees the motion “That there shall be an early parliamentary general election” with the support of a number of MPs equivalent to at least two-thirds of the total 650 seats (i.e. 434). This was the route used to trigger the 2017 general election.
In 2019, the government put the early general election motion to the House of Commons unsuccessfully three times. On 4 September, the motion received the support of 298 MPs. On 9 September, it received the support of 293 MPs. On 28 October, it received the support of 299 MPs.
B. No confidence
In the second route to an early general election, the House of Commons passes the motion “That this House has no confidence in Her Majesty’s government” and then 14 full calendar days pass during which the House of Commons does not pass the motion “That this House has confidence in Her Majesty’s government”.
The 14 days start on the day after the no-confidence motion is passed. There is no provision in the Act to take account of weekends, holidays, or periods when the House is not sitting or is prorogued.
This route to an early general election has never been used.
On 16 January 2019, the Leader of the Opposition, Jeremy Corbyn MP, moved a no-confidence motion in the terms specified in the FTPA. However, the motion was defeated by 325 to 306.
This second, ‘no-confidence’, route involves uncertainty over whether the passage of an FTPA-compliant no-confidence motion will trigger an early general election.
Supporters of an early general election could pass an FTPA-compliant no-confidence motion but fail to secure an early election, if the government were able successfully to move the required confidence motion within the subsequent 14 days. Equally, MPs seeking to force a change of government without an early general election might nevertheless trigger an early poll, if they passed an FTPA-compliant no-confidence motion but failed to secure the House’s support for the FTPA-compliant motion of confidence in a new government within the subsequent fortnight.
In both routes to a potential early general election (the ‘early election motion’ route and the ‘no-confidence’ route), the motions specified by the FTPA would, in terms of parliamentary procedure, be amendable. However, if any motion were amended so that it was not worded as set out in the Act, it would not then have the effects of the motions specified in the Act, in terms of triggering or potentially triggering a general election.
With respect to both routes to a potential early general election, the FTPA is silent on the identity of those who must or could move the motions it specifies. However, it is assumed that a motion of no-confidence in the government is most likely to be moved by the Leader of the Opposition. By convention, if the Leader of the Opposition tables a no-confidence motion, the government quickly provides time for its debate – in January 2019, it did so on the following day. However, in October 2019, as the government sought an early poll, the Leader of the House, Jacob Rees-Mogg MP, said that the government would also provide time for a no-confidence motion to be debated if any of the other opposition parties wished to table one.
The FTPA’s silence on the identity of those who must move the motions it specifies could leave the way open for a government to move an FTPA-compliant motion of no-confidence in itself, as a means of triggering an early general election via the ‘no-confidence route’ if it were unable to secure the support of two-thirds of the House of Commons for the early election motion. However, the responsible Minister during the passage of the Act, Mark Harper MP, said at the time that this would be “absolutely unconstitutional”. In evidence to the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) in November 2018, Mr Harper said that for the government to pursue this course would be “against the spirit of the legislation and would not be … appropriate”. The Committee concluded that it would be “entirely inappropriate for a Government to use the simple majority route to a general election … to circumvent the requirement for a two-thirds majority”.
In the event, in 2019 the government secured an early general election through a third route: passage of a freestanding Act of Parliament. The government introduced, and saw passed in three days, the Early Parliamentary General Election Bill, which specifies that an early general election is to take place on 12 December, 2019.
General election timings
General election timings
Under either of the two routes to an early general election under the FTPA, or in the case of an early general election provided for by dedicated legislation, timings surrounding the poll are established in several stages. The first two of these apply only if an early election is being held under the terms of the FTPA:
First, if an early general election is being held under the FTPA, the conditions for an early general election set out in that Act are fulfilled. Under the ‘early election motion’ route, this might take less than 24 hours. Under the ‘no-confidence’ route, this might take up to 14 days.
When the conditions for an early general election under the FTPA are met, the Queen sets the general election date by proclamation, on the advice of the Prime Minister (as in 2017). There is no legal obligation on the Prime Minister to indicate, before the conditions for an early general election are fulfilled, the election date that he would seek. The Prime Minister could not request a date less than 25 working days away unless the FTPA were first amended to reduce this statutory period between dissolution and a general election, but there is no legal bar to the Prime Minister requesting a much later date. There is also no legal requirement that a general election be held on a Thursday, although the last occasion on which a general election took place on another day was 1931.
Once a general election date is set, the dissolution of Parliament then occurs automatically at the start of the 25th working day before the general election date. This statutory period and the automatic dissolution are set out in the FTPA but apply to any and all general elections, whether or not they are being held under the terms of the Act, and thus whether the general election date is set by proclamation (as in 2017) or in legislation (as in 2019). (The FTPA originally specified a dissolution-to-polling-day period of 17 working days, but this was raised to 25 by the Electoral Registration and Administration Act 2013.) In 2019, the early election date of 12 December generated a dissolution date of 6 November.
The government then decides whether to keep Parliament working right up to its dissolution or to ask the Queen for a prorogation beforehand, to bring the parliamentary session to an end more speedily. The government’s decision will depend partly on the amount of any business that it wishes to conclude before the end of the Parliament (in the so-called ‘wash-up’ period). Before the 2019 general election, there was no prorogation and both Houses of Parliament sat until 5 November.
House of Commons Standing Order No. 24 allows an MP to apply for an emergency debate to be held on a motion that he or she moves (i.e. asks the House to agree). Emergency debates under SO No. 24 have emerged as a key vehicle for those seeking to criticise and alter the government’s Brexit policy.
SO No. 24 specifies that the motion for an emergency debate to be held under its terms must be a motion “that the House has considered the specified matter”.
Traditionally, such a ‘consideration’ motion had not been thought to be a vehicle through which the House could take a decision. Rather, a ‘consideration’ motion had been assumed to be a neutral motion.
However, in March 2019, in the context of a discussion of ways in which MPs might be able to vote on alternative Brexit-related propositions, Speaker Bercow suggested to Helen Goodman MP that she should “reflect upon the opportunities that the Standing Order No. 24 procedure presents, because the opportunities are fuller than has traditionally been acknowledged or taken advantage of by Members of the House of Commons”.
Moreover, the new edition of Erskine May, the authoritative guide to parliamentary procedure, published in June 2019, stated that a consideration motion for an SO No. 24 debate is “normally expressed in neutral terms”, with the ‘normally’ a change from the previous edition. As an example of an SO No. 24 debate held on a consideration motion not expressed in neutral terms, Erskine May referred to an SO No. 24 debate held on 18 December, 2018 on a motion moved by Labour leader Jeremy Corbyn MP that the House had “considered the Prime Minister’s unprecedented decision not to proceed with the final two days of debate and the meaningful vote, despite the House’s Order of Tuesday 4 December 2018, and her failure to allow this House to express its view on the Government’s deal or her proposed negotiating objectives, without the agreement of this House”.
On 3 September, 2019, Sir Oliver Letwin MP secured an SO No. 24 debate on a motion – which he moved successfully – that the House had “considered the matter of the need to take all necessary steps to ensure that the United Kingdom does not leave the European Union on 31 October 2019 without a withdrawal agreement and accordingly makes provision as set out in this order”. The rest of the motion in effect comprised a full-scale business motion to govern House of Commons business on 4 September and subsequent days in such a way as to guarantee that, if it enjoyed the support of both Houses, the ‘Benn Bill’ would be passed before the prorogation which was then expected on 9 September.
Responding to a point of order that Sir Oliver’s motion appeared to be a substantive (rather than neutral) one, the Speaker referred to the December 2018 debate, as well as a previous (March 2013) precedent, and said that these SO No. 24 debates had taken place on what he preferred “to call evaluative motions”. He said that, in allowing Sir Oliver’s motion, he was operating “in conformity with that practice”
For an MP, securing an emergency debate under SO No. 24 debate involves several steps. The initial and critical decision as to whether the debate may take place is the Speaker’s:
- The MP seeking an SO No. 24 debate gives notice to the Speaker privately of his or her wish to do so, so that the Speaker may give permission for the MP to make the proposal in the Chamber, and has some time to consider the application.
- After ministerial questions and statements at the beginning of the Commons sitting day, the MP has three minutes to propose the debate.
- The Speaker then announces whether he considers the matter ‘proper’ to be debated under SO No. 24. According to Erskine May, “In coming to a decision, the Speaker is expected to have regard to the extent to which the matter concerns the administrative responsibilities of Ministers of the Crown or could come within the scope of ministerial action, and the probability of the matter being brought before the House in time by other means.”
- If the Speaker determines that the issue is ‘proper’ to be debated under SO No. 24, he asks the House if it gives the MP leave to hold the debate. A single MP may object to the granting of leave, but 40 MPs standing in their places in support of the proposing MP are sufficient to overturn the objection. If between 10 and 40 MPs stand in support of the proposing Member, there is an immediate division on whether to hold the debate.
If the SO No. 24 debate is granted, its timing and length are determined by the Speaker, subject to a maximum debate length of three hours. SO No. 24 debates are typically held the following day, but they can be held the same day if the Speaker judges the matter to be sufficiently urgent.
Much of the debate around Parliament and Brexit is couched in terms of ‘What can Parliament do?’ To grapple with this from first principles, it is helpful to understand various ways in which parliamentary business is categorised.
There are two main ways in which one or both Houses of Parliament can take a position:
A. By passing a Bill. When a Bill is passed, it becomes an Act of Parliament. Acts of Parliament are law.
Bills and Acts are known as ‘primary legislation’.
Passing a Bill involves both Houses of Parliament. To become an Act, a Bill must go through a set of pre-defined stages in both Houses, starting in one and then passing to the other. These stages are: 1st Reading (a formality); 2nd Reading, which is about the principle of the Bill; committee stage; report stage; and 3rd Reading.
All Bills are amendable. In the House of Commons, Bills are amendable at committee and report stage; in the House of Lords, Bills may also be amended at 3rd Reading.
If, as a result of amendments passed by the second House, the version of a Bill to which that House gives a 3rd Reading is different from the version given a 3rd Reading by the first House, the Bill must undergo ‘ping-pong’. In this process, it is passed between the two Houses until no further amendments are made.
B. By agreeing a motion. When a motion is agreed, it becomes a resolution or order. Resolutions express a view; orders make something happen.
Each House agrees motions separately.
Resolutions and orders have political force, but are not law. The contents of an Act of Parliament cannot be amended, repealed or overridden by a resolution or order of either House.
However, some motions are required or provided for by an Act of Parliament. These are ‘statutory motions’. They have legal force by virtue of their relationship with an Act. Statutory motions that have featured or may feature during the Brexit process include, in the House of Commons:
A motion for an early general election under the Fixed-term Parliaments Act 2011 (FTPA)
A motion of no-confidence or confidence in the government under the Fixed-term Parliaments Act 2011 (FTPA)
A motion to approve a Withdrawal Agreement and Political Declaration under the EU (Withdrawal) Act 2018 (the ‘meaningful vote’)
A motion to approve a Withdrawal Agreement under the European Union (Withdrawal) (No. 2) Act 2019 (the ‘Benn Act’)
A motion to approve exit from the EU without a Withdrawal Agreement under the European Union (Withdrawal) (No. 2) Act 2019 (the ‘Benn Act’)
Some motions are amendable and some are not. For example, in the House of Commons, the motion at the end of a normal sitting day ‘That the House do now adjourn’ until the next regular sitting day is not amendable.
In the Brexit context, perhaps the most famous issue surrounding the amendability of motions concerns Standing Order No. 24B, which specifies that when, “in the opinion of the Speaker or the Chair, a motion, That this House … has considered the matter, is expressed in neutral terms, no amendments to it may be tabled.” Section 13 of the European Union (Withdrawal) Act 2018 specified that the motions that the government was obliged to bring forward if the House of Commons did not approve the Withdrawal Agreement and Political Declaration (in the ‘meaningful vote’) were to be in “neutral terms”. However, on 4 December, 2018, Dominic Grieve MP successfully moved an amendment to the government’s business motion setting out arrangements for the ‘meaningful vote’ debate. Mr Grieve’s amendment disapplied SO No. 24B to all government motions tabled under section 13 of the EU (Withdrawal) Act 2018. This meant that the required neutral government motions became amendable.
In parliamentary terminology, a ‘neutral motion’ is contrasted with a ‘substantive motion’. According to Erskine May, the authoritative guide to parliamentary procedure, a substantive motion is a “self-contained proposal submitted for the approval of the House and drafted in such a way as to be capable of expressing a decision of the House”. A substantive motion is normally amendable.
Broadly, items of parliamentary business are ‘tabled’ (notified, so that they appear on the Order Paper) and ‘moved’ (put to the House concerned for decision, during debate).
The formal term for the start of parliamentary proceedings on a Bill is that it is ‘introduced’.
Items of business may be tabled, moved and introduced by different people:
Bills are introduced either by the government or by individual MPs or Peers. If a Bill is not a government Bill, it is a Private Member’s Bill. In the Brexit process, the ‘Cooper-Letwin Bill’ – which became the European Union (Withdrawal) Act 2019 – and the ‘Benn Bill’, which became the European Union (Withdrawal) (No. 2) Act 2019, were both Private Member’s Bills. Normally, it is unusual for a Private Member’s Bill to become an Act without government support.
In the House of Commons, motions may be put forward by a minister on behalf of the government; or, when they have been granted or have secured time, by an opposition frontbench figure, for the opposition party concerned; by a select committee chair (under some limited circumstances); or by a regular backbench MP.
The Speaker or Lord Speaker (in the House of Lords) cannot put forward items of business.
In the House of Commons Chamber, time is allocated according to the ‘owner’ of the business.
The default arrangement is that government business has priority (‘precedence’) at all times. This is provided for in Standing Order No. 14(1).
Standing Orders allocate a specified number of Fridays each session to Private Member’s Bills. Without the House’s agreement to a business motion which provides for a further Friday sitting or sittings, the days allocated to Private Member’s Bills are the only Fridays on which the House sits.
Standing Orders also allocate a certain number of sitting days each session to non-government business – opposition business and backbench business. However, because government business has precedence under Standing Order No. 14(1), the government decides when these non-government business days take place. The provision of any further non-government business days, above the allocation set down in Standing Orders, is also at the government’s discretion.
These default arrangements mean that if MPs want parliamentary time in addition to, or at a different point to, the non-government time that would otherwise be available, they must seek and win the House’s agreement to a business motion disapplying SO No. 14(1) on a specified day or days, so that on that day or those days government business no longer has precedence.
In the Brexit process, MPs have used four different vehicles to pass, or try to pass, business motions opposed by the government:
- an amendment to a government business motion (as moved successfully by Dominic Grieve MP on 4 December, 2018);
- an amendment to a government neutral motion under section 13 of the EU (Withdrawal) Act 2018 (as moved unsuccessfully by Dominic Grieve MP and separately by Yvette Cooper MP on 29 January, 2019, and successfully by Sir Oliver Letwin MP on 25 March, 2019);
- an opposition day motion (as moved unsuccessfully by Labour on its most recent opposition day, on 12 June, 2019); and
- a motion for emergency debate under Standing Order No. 24 (as moved successfully by Sir Oliver Letwin MP on 3 September, 2019).
In the Brexit process, two particular types of House of Commons motions, defined by their type of content, have been especially important:
Business motions are motions to arrange business in ways not provided for in Standing Orders, or otherwise than so provided.
Sometimes, a business motion is required because Standing Orders could not specify what is needed. Motions for an adjournment to a specific day other than the next regular sitting day – motions to agree a recess, in more usual language – are business motions of this type.
On other occasions, a business motion is needed because there is a wish to arrange business differently from the way that Standing Orders would otherwise provide.
For example, because normal sitting days are Mondays-Thursdays, plus Private Member’s Bill Fridays, the House of Commons may need to agree a business motion to sit on a Saturday or Sunday. The government therefore needed to move such a motion successfully before Saturday 19 October so that the House would sit that day and could thus consider an approval motion for the revised Withdrawal Agreement, in order to try to avoid the Benn Act obligation to request an extension of the Article 50 period.
(The alternative route to a sitting of the House of Commons when it is adjourned, such as over a weekend, is via a recall. Under Standing Order No. 13(1), a recall is ordered by the Speaker, on the request of the government.)
Similarly, under Standing Order No. 16, any “proceedings under an Act” must be concluded in no more than 90 minutes. Such proceedings include debates on statutory motions under both the EU (Withdrawal) Act 2018, and the Benn Act. In December 2018, the government therefore needed the House’s agreement to a business motion so that the ‘meaningful vote’ debate would be longer than 90 minutes. This was the business motion to which Dominic Grieve MP successfully moved his amendment disapplying SO No. 24(B) for all government motions under section 13 of the EU (Withdrawal) Act 2018, making them amendable. In October 2019, Sir Oliver Letwin successfully moved an amendment to the government’s business motion providing for the 19 October Saturday sitting so that the debate on the Benn Act motion would similarly be longer than 90 minutes.
Often, when there is a wish to arrange business differently than as set out in Standing Orders, instead of amending Standing Orders it is more straightforward to pass a business motion disapplying the relevant Standing Order(s) for a specific time or piece of business.
In a Humble Address, one or other House addresses the Queen directly and may ask Her to take action (although, in practice, it would be for the government to carry out the steps requested; there is no expectation that the Queen personally would act on the Address).
The Addresses passed by each House in response to the Queen’s Speech are Humble Addresses, for example. ‘Prayer motions’, in which a House ‘prays’ that the Queen annuls or revokes a Statutory Instrument which is subject to the negative scrutiny procedure, are also Humble Addresses.
One of the main procedural novelties of the Brexit process has been the use by government critics of SO No. 24 emergency debate motions (as on 9 September, 2019) and opposition day motions (as on 1 November, 2017 and 13 November, 2018) to secure the House’s agreement to Humble Addresses which asked the Queen to direct the government to publish various documents.