Brexit: An Outlaw from Buckingham​(shire)

So Speaker Bercow has been at it again: outrageously, in some MPs’ eyes, drawing upon history and parliamentary convention to rule that the Prime Minister cannot, in the manner of Robert the Bruce’s spider, try and try again to secure a majority on the Meaningful Vote and thus pass the EU Withdrawal Bill.

Citing Erskine May, the Parliamentary guide to procedure in the House of Commons, Bercow ruled that the House cannot be asked repeatedly to vote on the same question. Meaningful Vote No. 2 was acceptable because the further guarantees on the transition and procedure for the UK to seek dissolution of the Irish Backstop (the Attorney General, Geoffrey Cox’s, so called ‘codpiece’) were viewed as varying the question put to the House; however, for Meaningful Vote No. 3, all the indications were that Mrs May was simply going to ask the same question on the same deal.

Now, whatever one may think of Speaker Bercow, he has proven himself in the past to be an admirable historian (see ‘What’s in a Word: Brexit and the Power of Language’). On this occasion, his historical reach was truly impressive: claiming the rule to be a ‘strong and longstanding convention’ which Erskine May references on 12 occasions in the period to 1920, he stated that it dates back to 1604. Predictably, the subsequent political and media storm focused on the allegation that the Speaker was trying to frustrate Brexit through reference to a convention based on events more than four centuries old.

The 1604 example is nonetheless on the mark for the 21st century. The contested issue then was the dispute between Crown and Parliament over the Buckinghamshire (in a neat historical parallel, Speaker Bercow represents the Buckingham constituency) election return.

One Sir Francis Goodwin had been returned as first knight of the County above Sir John Fortescue but before Goodwin arrived to take up his seat in the Commons, Fortescue, with support from well-placed courtiers, secured the invalidation of the election result on the grounds that Goodwin had been declared an ‘outlaw’ for outstanding debts by the Sherriff.

The poll’s annulment, and the subsequent election of Fortescue in Goodwin’s stead, led the second elected knight of the shire, Sir William Fleetwood, to protest to the House and petition against Fortescue. The House investigated and resolved to reinstate the first election result and thus Goodwin. This decision by the Commons was simultaneously questioned by King James VI & I and the House of Lords, with the former directing that Commons enter into a conference with the Lords and Privy Council to reconsider their decision which had been successfully voted through.

The Commons’ reply – its ‘Humble Address’ – presented to the House on 3 April gave rise to the rule quoted by Speaker Bercow. Voting for a second time that the House remained resolved to reinstate Goodwin and not to convene in conference, the Commons Journals (forerunner of Hansard) records that ‘Upon this passage it was urged for a Rule…’, namely that ‘…a Question once being made, and carried in the Affirmative, or Negative, cannot be questioned again, but must stand as a Judgement of the House’.

The principle at stake, then as now, was one of parliamentary privilege: that the executive (in 1604 represented by the Crown) cannot keep returning to the legislature (represented by the Commons) either seeking or directing a different outcome on the same question or issue. To do otherwise could give rise to all forms of bribery, graft or undue influence being exercised: votes could be bought. So on this view Speaker Bercow, channelling the tradition of his office to defend parliamentary privilege against an overweening executive, was saying to the Prime Minister: whip your vote, get it right first time, and if you can’t, put down a different question. Straightforward, really.