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Don Clarke

Don Clarke

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PM Fallout

Blogs10/06/2019

"I always avoid prophesying beforehand because it is much better to prophesy after the event has already taken place."
Winston Churchill

There has been a lot of speculation about the potential scenarios for BREXIT now that the Prime Minister has resigned and how this might impact on the Government’s Civil Justice Reform Agenda.

Looking at the facts, we know the UK will leave the EU, whether or not there is a deal in place on the 31st October. Whilst it is possible that any Prime Minister could potentially seek an extension, it is a matter of fact that the EU has consistently insisted that there will be no more negotiation and that this is a final deadline.

So, what will happen if the new Prime Minister actively wishes to pursue no deal (a route preferred by many of the numerous current hopefuls), could Parliament block them from so doing? The answer to that is probably not, because the only way to prevent a no-deal Brexit is for the Government to request an extension and for the EU to agree. This is because the potential ways for Parliament to block a no deal BREXIT are fraught with difficulties. So let’s look at the options and the difficulties with each:

  • Vote of no confidence in the Government – If we assume that enough Conservative remainers backed an attempt to bring down the Government, there would be 14 days for a Government to form with the support of a majority of MPs otherwise there would be a General Election. Ignoring whether there are enough Conservative MPs who would support this course (the reality is not many of them could be certain of re-election in the current climate), either eventuality would only block a no-deal if a new Prime Minister who was anti-no deal was in place to ask the EU for an extension before 31 October, and the EU agreed.
  • Passing Parliamentary motions – Backbench business or opposition day motions could be used to showcase Parliaments views on no-deal Brexit, but these would not be legally binding. Indeed, the Government doesn’t have to offer opposition days if it doesn’t wish and there will effectively be very little Parliamentary time between the election of a Conservative leader and the deadline because that period will encompass both the summer and the Conference recesses.
  • Voting down the Queen’s Speech – if a no-deal Prime Minister held a Queen’s Speech, MPs could reject it or amend it to rule out no-deal Brexit in a binding way. However, if a no-deal Prime Minister was elected through the Conservative Party leadership race, they have the option simply to not hold a Queen’s Speech until 31 October, and thus not risk having one voted down.
  • Emergency debates – MPs can apply to the speaker for emergency debates but this is simply another way of expressing opinion, rather than a legally binding motion.

Is it possible that the Speaker, John Bercow, will intervene and allow MPs to seize control of the parliamentary timetable to rule out a no-deal Brexit, or use various procedural methods to do the same? Some have suggested that this could be the reason for Mr Bercow’s decision not to stand down as speaker over the summer.. However, it is by no means certain that he would take this course of action and Parliament’s ability still seems limited in this case.

So on balance a no deal Prime Minister is likely to result in a no deal BREXIT, whatever the intentions of Parliament.

Alternatively, if we do end up with a General Election, and a new Government which is not dominated by the Conservatives, will that new Government support and deliver whiplash reform?

It is fair to say that Labour would not endorse the current state of play insofar as whiplash is concerned and it this could well sound the death knell for these reforms. This is because, whilst we have the Civil Liability Act, secondary legislation is required to give effect to the Act and if the Government where opposed to the reforms it would simply drop this work, so that SCT remains where it is and no other changes are made to the CPR.

Whilst the Liberal Democrats were not vocal around the reforms, and so it is hard to see that they have a firm policy, the suspicion remains that a Liberal Democratic Government or a Labour and Liberal Coalition Government would not deliver on these reforms

In terms of the discount rate, this involves solely primary legislation so it is highly probable that we will get a review by the 5th August 2019 as required by the Act, whichever Party comes to power, albeit that the decision on the rate might be different depending on which Lord Chancellor is in place