The Government originally planned to hold Parliament’s meaningful vote on Brexit on 11 December. However, following three days of debate in the House of Commons, the Prime Minister said it was clear the deal was not going to pass the vote and decided to postpone it. The Government sought Parliament’s approval on 15 January, and was heavily defeated, by a majority of 230 votes.
The result is likely to have major ramifications for the Brexit process and the Government’s position.
In terms of parliamentary procedure, the European Union Withdrawal Act sets out the next steps should Parliament reject the Government’s Brexit deal. Under the Act, the Government would have 21 days to make a statement to Parliament outlining its next steps. Ministers would then have to move a motion on that statement within seven sitting days, allowing MPs to debate and vote on the Government’s plan B. .
However, in the rescheduled debate, this timeframe may have been modified. A new amendment to the supplementary business motion, tabled by backbencher Dominic Grieve, now requires the Government to ‘table’ a motion under section 13 of the EU Withdrawal Act within three sitting days of the Government losing the meaningful vote. But there are questions about the way the amendment is phrased that could leave the Government with more room to manoeuvre. In theory, a motion that is tabled by the Government does not have to be debated. For MPs to discuss it, it would need to be ‘moved’ by a minister. The Government could hold out and stick to the original timetable outlined in legislation – only allowing MPs a debate after the 21-day period. In this sense, the amendment does not change the legal timetable.
However, in practice, the Government is likely to come under significant pressure from MPs and the Speaker to move the motion and allow a debate earlier than outlined in legislation.
If the Government does move the motion, the Standing Orders (the parliamentary rules) specify that motions under an Act of Parliament should be debated for only 90 minutes, and that just one amendment can be selected for debate (assuming the Government stands by its commitment to treat all motions under Section 13 of the EU Withdrawal Act as amendable). The Government could choose to put forward a business motion, which would allow MPs to decide to waive these limitations and have a more extensive debate. However, given the controversy around Grieve’s supplementary business motion, it is unclear whether it will choose to do so.
If the Government loses the first vote, the route forward would be heavily influenced by the way in which the deal was rejected. Parliament will vote on amendments and, if a majority could be found for one of them, it could be these amendments that set the route forward.
There are three further ways the way the Government deal is rejected could influence the route forward:
1. Rejected with no amendments
A straight rejection of the deal without any clear sense of what would be acceptable to Parliament is likely to cause the most uncertainty.
Rejecting the deal would show that this version of Brexit doesn’t command a majority in Parliament. But to avoid ‘no deal’, the Government and Parliament would face the same task as they do now: they need to find a Brexit outcome for which there is majority.
The Government could attempt to come back to Parliament with an alternative deal, although this would depend on whether the EU was willing to revisit negotiations. Given the difficulties the Prime Minister faced in gaining concessions over Christmas, it is unclear if any would be forthcoming, particularly without a clear sense of what changes would be palatable to Parliament.
2. Rejected with amendments indicating a preferred route
Could offer all sides a way through to a deal acceptable in the UK. The challenge is getting the EU on side. It might work if Parliament puts forward an alternative view for the future relationship that is acceptable to the EU – most likely if it is an ‘off-the-shelf’ model. But the EU is clearly very reluctant to reopen talks given the different interests of 27 member states and it could refuse to reengage in talks. If the UK wants to change parts of the Withdrawal Agreement, it would be even more difficult to persuade the EU.
If Parliament reaches consensus on a way forward – which is not the Prime Ministers deal – the challenge is then persuading the EU to sign up to it. While European leaders have said there is no other deal on offer, depending on what MPs want to change they could find some flexibility.
The EU might be willing to change elements of the political declaration on the future UK-EU relationship. It is not a legally binding text and leaves a number of different possible outcomes on the table. If MPs were to coalesce around, for example, an EEA/EFTA-type deal (the Norway option) proposed by some parliamentarians, the EU might be willing to adjust the text to reflect that as a likely outcome of future negotiations.
The EU is likely to be less accommodating if the UK Government asks to reopen negotiations on the legal text of the Withdrawal Agreement. Any proposed changes to the Irish backstop, financial settlement or citizens’ rights are expected to be firmly resisted by the EU.
The UK could potentially try to renegotiate elements for approval at European Council on the 13-14 December, but if it failed to do that the next planned European Council would not be until March 2019.
3. Passed with an amendment requiring approval through a referendum
Parliament could amend the motion to say that it can only pass subject to approval via a popular vote. A further referendum on Brexit would require Parliament passing primary legislation enacting such a vote. This legislation would set out the question to be asked and the franchise for the vote.
These kinds of decisions would be highly contentious and likely contested, and makes passing the legislation potentially tricky. The legislation for the first EU referendum took around seven months to pass. It could be done more quickly, but this would require Parliament to agree on the details. Such legislation would also set the date for the referendum and can therefore set how long each aspect of the referendum process will take.
The Electoral Commission has said it could take up to six months to run a referendum campaign well. This would likely require an extension to the Article 50 period, not just for the running of the referendum but also to ensure there is sufficient time after the vote for the UK to prepare for the outcome. Any extension would need unanimous agreement of the other 27 EU leaders.
For more information, read our explainer on a second referendum on Brexit.
1. Labour puts down a no confidence vote in the Government before Parliament
If the meaningful vote is lost, Labour is almost certain to put down a motion of no confidence. The Government would timetable the debate and vote quickly. It might take a few days and up to a week.
If a vote of no confidence is proposed, there are three scenarios:
- If the first vote is won, Theresa May would be back on course within a week, but would still face the same choices on Brexit: try again with her deal, try a slightly modified deal with the EU, or no deal.
- Theresa May’s government, or another Conservative Prime Minister installed rapidly, could, in theory, pass the second vote of confidence having lost the first one. If that happens, is the Prime Minister again faces the same choices.
- If both votes are lost, it leads to a general election which changes the timetable dramatically.
Timetable impact: three weeks minimum
For more information, read our explainer on confidence motions and Parliament.
2. General election
If a general election is announced, the campaign must last 25 days. Before that is the ‘wash-up’ period. This involves the Government agreeing with the Opposition what remaining legislation can be passed rapidly before the election. The Government does not have much outstanding legislation, but it might try to get some provisions of the Finance Bill onto the statute book.
A general election would not change the 29 March deadline for Brexit. That is written into UK law and no deal Brexit will happen unless this Parliament, or a new elected one, do something else.
Following a general election, it generally takes at least two weeks for MPs to be inducted and sworn in before the Commons gets around to conducting business. A Queen’s Speech is then the first activity and a debate following that. It could be shortened but not by much.
3. Conservative leadership contest, should Theresa May resign
On 12 December, Conservative MPs held a vote of no confidence in Theresa May’s leadership of the party. The Prime Minister survived the challenge by 200 votes to 117, and under party rules cannot be challenged again for a year – even if she loses the meaningful vote. However, a Conservative leadership contest could still be triggered should Theresa May resign.
This could be a big problem for completing no deal preparations or attempting to reopen negotiations, losing precious time ahead of the end of the Article 50 period on 29 March. The timetable could be shortened but would still take up to six weeks or more for the whole process.
It could be more rapid if there was only one candidate, but that would require a large bulk of Conservative MPs to rally behind one vision for Brexit. That seems unlikely at the moment.
Timetable impact: two weeks to two months
For more information, read our explainer on Conservative Party leadership challenges.