Vote would have ‘considerable’ political force but would not be binding, says clerk of house

Theresa May can legally ignore any non-statutory vote by MPs that suggests an alternative Brexit plan, including the option of a second referendum, according to the most senior official of the House of Commons.

Sir David Natzler, clerk of the Commons, told the Brexit committee none of the votes would be binding on the government, unless they were amending legislation.

However, he added that such a vote would still have “considerable political force”.

The Brexit secretary, Dominic Raab, has said the meaningful vote, which gives MPs a vote on the final Brexit deal, should be a straightforward take-it-or-leave-it vote or else it would invalidate any agreement reached with Brussels.

But campaigners are considering whether to use that moment, which could take place as late as 20 December, to stage a vote on whether to hold a second referendum, but it is not clear whether it would be binding.

Natzler agreed with the Tory Brexiter John Whittingdale that the government could not be forced to pay any attention to the votes. He said: “That is correct. There’s not statutory obligation. So let us say there’s a majority in favour of a different sort of future trading arrangement to that envisaged in the future framework.

“Let us say, indeed, there was a majority for a number of different trading arrangements in different resolutions, because the only precedents close to this are the House of Lords votes in 2003 and 2007, when the business of the house motion explicitly allowed for mutually contradictory resolutions to be passed ...

“The house may come out in favour of, I don’t know, of Canada plus plus, or Norway minus, and all sorts of things. Does the government then have to go and renegotiate? No. It then tries to get its principal motion through, with whatever it is proposing to the house.”

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However, Natzler suggested a decision by the majority of MPs to back a second referendum, even just as a non-binding resolution or motion, would be very difficult politically for the prime minister to ignore.

“If the house were to agree that there should be a referendum before X or after X, that would have no statutory effect. No referendum follows as a result. But if there is a majority of members of the House of Commons that voted for it, I think you would be very unwise to say that has no effect,” he said. “It would have, I assume, a considerable political effect.”

The Commons clerk, who effectively decides what is and is not allowed under the rules of the house, said it would be a matter for government lawyers if the final meaningful vote was approved by MPs, with an amendment demanding a second referendum.

He said: “If such an amendment were passed, and then incidentally the motion as amended were agreed, it would then be for lawyers to determine whether [EU Withdrawal Act’s] 13(1)(b)’s condition had been met. It’s not a procedural question.’”

In written evidence submitted in advance of Wednesday’s hearing, Natzler had already suggested a rare procedure could be used to allow MPs to vote on multiple options, which could include an option for a second referendum.

The consecutive motion idea has been used twice before to present a series of options to MPs relating to reform of the House of Lords in 2004 and 2007, Natzler wrote. Each time, however, no real changes took place as a result.

Some Tory remainers such as the former minister Dominic Grieve are understood to favour tabling a series of non-binding resolutions before the final meaningful vote to allow MPs to establish the will of the house on issues including a second referendum. Other second referendum campaigners fear that such a move could be used by ministers to select the answer that suits them best.