Parliament and the Brexit deal

If Parliament votes, what does it vote on?

The Brexit negotiations will not be over just one deal, but two. One negotiation will be to secure a withdrawal agreement, i.e. the terms of the divorce, or “exit deal”.

The other negotiation will be to secure an agreement on the future UK-EU relationship – the “new deal” – or some framework for that relationship. The Government says it intends to pursue a Free Trade Agreement (FTA) with the EU. As we have explained, this is likely to take longer than two years, so the new deal on the table in 2019 is likely to be a more skeletal agreement.

There are questions over Parliament’s role in approving both.

It is also possible that the Government will be unable to secure a withdrawal agreement within the two-year timeframe set out in Article 50, meaning there will be “no deal”. If at the end of those two years, no withdrawal agreement has been reached, and the other member states do not unanimously agree to extend the negotiating period, then the UK leaves the EU anyway. There are also questions over what parliamentary consent would be needed, legally and politically, before the Government could walk out of withdrawal negotiations without an agreement.

There are therefore three distinct parliamentary votes under discussion: an exit deal vote, a new deal vote, and a no deal vote.

What has the Government already promised?

When the exit bill was being debated in the House of Commons, David Jones, Minister of State in the Department for Exiting the European Union at the time, confirmed that the Government had “made a commitment to a vote at the end of the procedure.”

The Minister outlined a number of important features of that vote. He said the Government intends that: 

• A single vote will cover both the withdrawal arrangement and the UK’s future relationship with the EU.
• The vote will take the form of a motion before both Houses of Parliament.
• The vote will take place before the European Parliament debates and votes on the final agreement. (It is not clear what this agreement is, but under EU law the European Parliament must authorise both the withdrawal arrangement under Article 50, and any Free Trade Agreement.)
• The vote will be either to take the agreement on the table, or to walk away with no agreement at all.

The Government’s commitment, therefore, packages up all three votes into one compound vote. Under the Government’s terms, a “yes” vote is a vote for both the exit deal and the new deal, and “no” vote is a vote for no deal.

How has Parliament reacted to this? 

As the Article 50 Bill passed through Parliament, some members of the House of Lords tabled amendments to give Parliament greater voting power on the outcome of Brexit negotiations. The House of Lords passed one amendment which proposed to give Parliament three separate votes: on an exit deal, new deal and no deal respectively. The last of these is particularly controversial because there is little clarity over what would happen if Parliament voted “no” to a “no deal”. This amendment was rejected by the Commons and did not make it into the final Article 50 bill.

However since June's election produced a Conservative minority government, calls for greater parliamentary involvement in the Brexit process have intensified. In its April report, the Commons Exiting the EU Committee emphasised that “Parliament must have a vote in the event that there is no deal”. Before the election, the Lords passed a motion to appoint a Joint Lords and Commons Committee to report on the options for votes in Parliament by 31 October 2017.

What happens if Parliament votes “no” to an “exit deal”?

Some politicians seeking an exit deal vote suggest that a parliamentary rejection could “send the Government back to the negotiating table” in Brussels, or even stop Brexit from happening altogether.

As we have explained, this is far from clear.

A “no” vote could only send the Government back to the negotiating table in two remote scenarios:

1. The vote is early and the EU is willing. If the UK Parliamentary vote takes place early enough, then there could be time for UK Parliamentary scrutiny, followed by a UK Parliamentary rejection, followed by further negotiations, followed by more UK Parliamentary scrutiny, followed by a UK Parliamentary approval, followed by European Parliamentary scrutiny, followed by a European Parliamentary approval, before the two-year period dictated by Article 50 is up. However, the current negotiating timetable does not appear to allow sufficient time for this process. It is widely expected that negotiations will wrap up by October 2018, leaving five months for ratification. In any case, further negotiations would only be possible if other European countries were also prepared to continue. 
2. The negotiating period is extended consensually. A late “no” vote could also be followed by further negotiations, but only if the two-year window dictated by Article 50 is extended. That can only happen with the unanimous agreement of the other member states. It is not within MPs' remit to extend the negotiating period unilaterally.

It is unlikely a parliamentary “no” vote on the exit deal could stop Brexit altogether. For this to happen, it would have to set in train a series of political events that would lead to the UK attempting to revoke its Article 50 notification. However, it has not been established whether the UK can take back its Article 50 notification without the consent of all other EU member states. A case in Ireland brought by QC Jolyon Maugham, dubbed the ‘Dublin Case’, wanted to get the European Court of Justice to answer this question. However the case was ultimately discontinued. 

What happens if Parliament votes “no” to a new deal?

The process of scrutiny for an FTA is likely to be long and complex. There will not be one single, defining vote on the UK’s new trading relationship with the EU.

As long as Parliament votes “no” to a “new deal”, however, the UK will simply proceed on whatever exit arrangements have been agreed. If no exit arrangements have been agreed, it is highly unlikely there will be a new deal on the table anyway.

What happens if Parliament votes “no” to “no deal”?

This is unclear. If Parliament were to vote “no” to “no deal”, that would bring to the fore legal and constitutional questions that so far have only been in the realm of speculation.

As with a “no” vote on an exit deal, it could only return the Government to the negotiating table if EU leaders were also willing, and there was time for more negotiations.

If either of these conditions did not pertain, there is no obvious answer to the question of what “no” vote to “no deal” would mean. That would depend on what constitutes a revocation of an Article 50 notice in UK law, and whether unilateral revocation is possible in EU law. Both of those questions are unanswered. It may not, therefore, be in Parliament’s gift to stop the UK leaving without a deal, even if it notionally had a vote on the issue.

Doesn’t Parliament have to approve new treaties anyway?

Yes, and the existing scrutiny procedures are highly likely to apply to both the exit deal and the new deal. The vote proposed by the Government and the votes proposed by the Lords are in addition to these existing scrutiny procedures.

The law on MPs’ role in the approval of most international treaties is set out in the Constitutional Reform and Governance (CRAG) Act 2010. The law formalises a convention that dates from 1924, known as the ‘Ponsonby Rule’.

It says the Government must lay international treaties before both Houses of Parliament 21 days before the intended date of ratification. If neither House raises objections, ministers can go ahead and sign. However, Section 20(1)(c) of the Act sets out that a treaty is not to be ratified if the House of Commons has “resolved, within [21 days], that the treaty should not be ratified.”

If the House of Commons does vote against the treaty, a further 21-day scrutiny period is triggered and the same rules apply as before. This process can be repeated indefinitely. In theory, Parliament could stop the Government from ratifying a CRAG-applicable treaty indefinitely. However, the House has yet to use this power to block a treaty.

In fact, treaties are often not debated and voted upon at all. CRAG does not oblige the Government to allocate time to a debate. The Opposition can do so if it controls any of the parliamentary time in the 21-day period.

Whether and how the CRAG procedure applies to the exit deal will depend on exactly what that agreement contains. However, it is expected to. The Government indicates it thinks CRAG will apply to the exit deal in submissions to the Supreme Court case on whether ministers need parliamentary approval to trigger Article 50.

The CRAG procedure is also expected to apply to any new FTA, since EU trade agreements with third parties must be ratified according to the CRAG procedure.

The Act does not apply to “exceptional cases”, in which the Government may ratify treaties without consulting Parliament. Where the Government believes there is an exceptional case, it must explain why. There is no explanation in the legislation itself of what “exceptional” means. Neither the exit deal nor the new deal is expected to count as an “exceptional case”.