08 March 2017

Oliver Ilott argues that a meaningful vote on a final Brexit deal would be less meaningful than it first appears, but might still be a good idea.

Theresa May has promised Parliament a “take or leave it” vote in which MPs can choose between leaving the EU with the deal that she has negotiated, or leaving without a deal at all. Last night the Lords passed an amendment to the Article 50 bill to give Parliament a more meaningful vote, one in which they could send the Prime Minister back to the negotiating table if they did not like the deal on offer.

The amendment is now in ping pong; the Commons will now have to decide whether to accept the amendment next week.

A “meaningful vote” might be less meaningful than it appears.

This is for three reasons, all of which relate to the fact that the UK does not have the option to walk away from talks with the EU while leaving the status quo intact:

1. It is not in the UK’s gift to extend negotiations.

Article 50 states that there is a two-year negotiating window, which means Parliament cannot reject bad deals and send Theresa May back to the negotiating table indefinitely. After two years the negotiating window ends and, even if they are armed with the Lords amendment, in reality parliamentarians would face a “take it or leave it” vote.

2. The “take it or leave it” vote might also be the only vote that Parliament is offered.

The two-year negotiating window is already a very tight deadline and given the amount of time it will take to ratify the EU’s position, there might only be 12-18 months of actual negotiation. In that scenario, a second attempt at a deal before the negotiating window is up seems unlikely.

3. Even if Theresa May is sent back to the negotiating table, she might find that the EU is very sluggish in coming up with a new version of the deal.

The EU has many constraints on its ability to negotiate. Its sign-off process is tortuous, involving the European Council, the European Parliament and, for some deals, 27 national parliaments and 11 regional assemblies. Historically, the EU has found it difficult to find a position that will appease all of these groups. When it does find that position, its room for manoeuvre is limited. The EU is a negotiating partner with the turning circle of a cruise ship – which is one of the reasons why the Comprehensive Economic and Trade Agreement with Canada took five years to negotiate.

But the Lords amendment might still be a good idea.

If a deal can be thrashed out in good time, then Parliament’s ability to reject it could increase the Prime Minister’s bargaining power (even though No10 has been briefing that it would have the opposite impact). As we’ve previously explained, international negotiations suggest that negotiators who are domestically constrained have greater bargaining power, since their scope for concession is reduced. Any negotiator who finds it harder to make concessions is in a stronger position.  

Parliament could well delay or derail these bills as an indirect way of exercising their influence, if it does not feel like it is being heard. The Government needs Parliament to approve numerous pieces of Brexit legislation in the next two years. In total, there may be eight to 15 pieces of legislation that need parliamentary approval, including the Great Repeal Bill, a new immigration bill and an international trade bill. Giving parliamentarians a more meaningful vote on the Brexit deal decreases the risk of this type of legislative collateral.


Re #1 above, my understanding is that the negotiations could go on beyond two years if the European Council, in agreement with the member state concerned, unanimously decides to extend the negotiations.

And on the general issue of what the the UK Parliament's role should be, I believe that the withdrawal agreement is concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. That being the case, it would be decidedly asymmetric and incompatible with the Brexiteers' professed concern for UK sovereignty if the UK Parliament's consent is not to be required before the Government concludes the agreement on behalf of the UK.

Why is bargaining power so important when the logic of leaving is so flawed and the system for leaving the EU so brutal? The likely result is either a fudge or a disaster or a combination of both. The civil service is not ready for it, nor is commerce and nor, for that matter, civil society. I think that your last paragraph is instructive. Surely it is best to derail a train when it is moving slowly rather than when it has built up speed?

The Lords amendment is a very bad amendment and should be rejected by the Commons. As written, it requires BOTH Houses to consent to any decision by the Prime Minister to leave the EU. This is bad firstly because the plain text of article 50 is that in the absence of an agreement, the Member State leaves the EU at the conclusion of the negotiating period (extended or otherwise). So, there is no prime ministerial decision because no agreement = automatic exit. Some, including apparently one of the authors of article 50, protest that there is an ability to remain in the EU in the absence of an agreement but this is not the plain words and if such a meaning was meant, it was a dreadful piece of drafting of article 50.

The second reason the amendment is bad is that if the Prime Minister came back from Brussels without an agreement and the Commons supported her, the Lords could still (putting the first argument to one side for a moment) veto our departure from the EU. So, we could find ourselves in a situation where the people in a referendum had voted to leave the EU and the Commons had supported this but the Lords vetoed it. Now THAT would be a constitutional crisis. It might, of course, be claimed that they would never do this. However, if proponents of the amendment demand that the meaningful vote be put into law because they distrust the government's promise of a meaningful vote, why should they not be asked to remove from their amendment something that would apparently never be used?