The EU Withdrawal Act, the cornerstone of the Government’s programme of Brexit legislation, became law in June 2018. After weeks of intense negotiations between the Government and a group of pro-EU Conservative MPs, led by Dominic Grieve, the Act included some important changes to the procedures the Government originally proposed for Parliament’s consideration of the Brexit deal. We first set these out in our report Voting on Brexit.
In October 2018, the Department for Exiting the EU (DExEU) sent a memorandum to the Procedure Committee setting out how it understood the EU Withdrawal Act as regards Parliament’s role in the Brexit process.
The Government has been saying since October 2016 that Parliament will have a vote on a Brexit deal it negotiates with the EU. However, for a long time this was no more than a stated intention. When ministers first brought forward the EU Withdrawal Bill, the bill contained no legally-binding commitment to such a vote.
In December 2017, the House of Commons amended the bill to say that any secondary legislation to implement the Withdrawal Agreement could not be brought into force until Parliament had passed a statute approving the deal. However, this was a relatively weak requirement for parliamentary approval, as it would not have required ministers to consult Parliament before signing and ratifying the deal – that is, giving the UK’s formal consent to be bound by the treaty.
The bill was further amended during its passage. Section 13 now says the Government will not be able to ratify the Withdrawal Agreement unless four conditions have been met:
- the documents and an associated statement have been published
- “the negotiated withdrawal agreement and the framework for the future relationship have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown”
- a subsequent debate has taken place in the House of Lords
- Parliament has passed legislation to implement the Withdrawal Agreement.
MPs will debate the Government’s deal for five days before voting on amendments to the approval motion
The Government has published the Withdrawal Agreement and the political declaration on the framework for the future relationship. The next step is for Parliament to debate the deal and then vote on a motion to approve it.
The Government has tabled a business motion setting out the procedure for this debate. This is necessary to allow for a longer debate because existing procedure would only allow for a 90-minute debate on a motion of this kind. There was controversy around how the Government would schedule the debate, and whether it would allow votes on any amendments before a vote on the Government’s motion. This led to an inquiry by the House of Commons Procedure Committee into how the vote should be managed.
The business motion shows that the Government accepted recommendations made by the Procedure Committee. It has scheduled five days of debate, as we recommended in April, and allows votes on amendments before a vote on the motion to approve. The motion allows the Speaker to select up to six amendments to be voted on. This motion will need to be approved by the House of Commons ahead of the debate.
The House voted in favour of an amendment to the business motion tabled by Dominic Grieve, 321-299. This amendment addresses the procedure in place under Section 13 of the EU Withdrawal Act if Parliament votes down the deal on 11 December. Under the Act, the Government will have 21 days to make a statement on how it intends to proceed and then move a ‘motion in neutral terms’ after seven days for the House to ‘take note’ of the statement. Standing Order 24B says that where, in the opinion of the Speaker, a motion is expressed “in neutral terms”, no amendments to it may be tabled. Grieve’s amendment disapplys this Standing Order to any motion moved under Section 13 of the Act, which would make any motion relating to the withdrawal process amendable by Parliament. Although amendments to a future motion would not be legally binding, they would likely carry significant political weight.
Who has tabled the amendment?
What does it say?
What kind of support does it have?
Has the Speaker selected it?
|Official Labour Opposition||The amendment rejects the Prime Minister's deal on the basis of Labour’s six tests, rejects the prospect of ‘no deal’, and says that the House will “pursue every option” that prevents the UK from leaving the EU under either of those circumstances. But the amendment does not set out a clear alternative to the Government’s deal.||Labour frontbench||To be decided|
|Vince Cable, Liberal Democrat MP||Amends the Labour motion, to include a ‘public vote’ as one of the options the House could pursue.||Liberal Democrat MPs||To be decided|
|Hilary Benn, Labour MP||The amendment rejects both the Government’s deal, as well as a no deal exit from the EU. It also asks the Government to bring forward ‘without delay’ the debate needed under the EU Withdrawal Act once Parliament votes down the deal.||Significant cross-party support||To be decided|
|Ian Blackford, SNP MP||It rejects the Government deal in line with the votes against it in the Scottish Parliament and Welsh Assembly, and calls for the Government to request an extension of the Article 50 negotiating period.||It is supported by SNP and Plaid Cymru MPs in the House of Commons.||To be decided.|
|Giles Watling, Conservative MP||It would approve the Government’s deal after the Withdrawal Agreement has been amended to guarantee an agreement on the future relationship is in place before the end of the transition period.||Currently no other MPs have put their names to the amendment.||To be decided|
|Sir Edward Leigh, Conservative MP||Calls for an assurance from the Government that it will terminate the Withdrawal Agreement if the EU refuses to remove the backstop from the treaty at the end of 2021.||Has the support of 15 other Conservative Brexiteers.||To be decided|
|Frank Field, Labour MP||Gives consent to the Prime Minister’s deal provided the Government ensures it can terminate the backstop if it cannot negotiate an alternative arrangement on the island of Ireland, and calls for the Government to negotiate a future relationship on the basis of CETA, the Canada-EU free trade agreement.||Has the support of one Labour and four Conservative Brexiteers.||To be decided|
|John Baron, Conservative MP||Gives consent to the deal provided the Withdrawal Agreement is amended so that the UK can terminate the Northern Ireland Protocol unilaterally.||Supported by 12 Conservative Brexiteers.||To be decided|
|Daniel Kawczynski, Conservative MP||Gives consent provided the UK does not have to pay the EU more than £19.5 billion when the Withdrawal Agreement comes into force and pays nothing else until a free trade agreement with the EU has been ratified.||Currently no other MPs have put their names to the amendment.||To be decided|
|Daniel Kawczynski, Conservative MP||Urges the Government to contest any EU member state which tries to pursue its "narrow national interest" in relation to fishing rights.||Currently no other MPs have put their names to the amendment.||To be decided|
|John Mann, Labour MP||Seeks to ensure that leaving the EU will not result in lower employment, environmental, and health and safety standards after exit day.||Supported by Gareth Snell, Labour MP.||To be decided|
|Sir Vince Cable, Liberal Democrat MP||The amendment doesn’t reject the Government’s deal, but requires the Government to take "all necessary steps" to prepare for a further referendum which would give people the choice between leaving and remaining in the EU.||Liberal Democrat MPs||To be decided|
|Sir Hugo Swire, Conservative MP||
The amendment accepts the Government’s deal as long as the EU Withdrawal Agreement Bill includes provisions which:
Places ‘a duty’ on the Government to agree a future relationship, or alternative arrangements, within one year of the Northern Ireland backstop coming into force.
|This has the support of four other Conservative MPs. It is seen as the Government’s attempt to compromise with backbenchers who are concerned with the provisions of the backstop.||To be decided|
If Parliament does amend the motion to approve the deal, the Government will not be legally obliged to do what it asks. However, the Government’s ability to ratify the deal could be constrained if Parliament amends the motion to such an extent that it no longer expresses approval of the negotiated deal. It is likely that the Government would take legal advice on whether any amendments before the Commons would stop the UK from ratifying a deal, if they were passed. The Government could make this advice available to the Commons if it chose to do so, although this would not stop MPs obtaining conflicting advice, as happened in 1993 when MPs considered amendments to legislation approving the Maastricht Treaty.
If the motion were amended and someone did believe that this stopped the Government from ratifying under the terms of Section 13, then they could challenge the Government’s decision to ratify the Withdrawal Agreement before the High Court. (This would be the same for amendments to the legislation the Government brings forward to implement the Withdrawal Agreement, after the vote on the motion.)
But the Government does not need to pass the motion before it brings forward the EU Withdrawal Agreement Bill
Section 13 of the EU Withdrawal Act says that the motions need to be approved by the Commons and the EU Withdrawal Agreement Bill needs to pass through Parliament before the Government can to ratify the Withdrawal Agreement. But it does not specify that the motion has to be passed before the bill can be introduced. This was highlighted by Sir David Natzler, Clerk of the House of Commons, in evidence to the Exiting the EU Committee.
It would be possible, therefore, for the bill to provide a way to ensure the Government is able to ratify, even if the motion has not passed or has been significantly amended in the House. Sir David suggested the EU Withdrawal Agreement Bill could include a retrospective provision to say that the passage of the bill would be sufficient in meeting the conditions set out in Section 13 of the EU Withdrawal Act. Another possibility would be to include a provision which repeals the relevant parts of Section 13 of the Act, or which explicitly gives the Government permission to ratify the agreement.
Of course, in either of these cases, the clause would have to be accepted by Parliament as the bill completes its passage.
The Government caved in to pressure from Conservative rebels to allow a parliamentary vote in a 'no deal' scenario. A 'no deal' scenario for the purposes of the legislation is carefully defined:
- If Parliament has decided not to pass the Government’s motion to approve the withdrawal agreement and future framework.
- If, before 21 January 2019, the Government tells Parliament that no agreement can be reached.
- If after 21 January 2019, no agreement has been reached.
In any of these instances, the Government would have to make a statement to Parliament setting out what it intended to do next.
Parliament would then have an opportunity to vote on those plans, on a motion expressed “in neutral terms”. The motion could be “that this House has considered the Government’s plans to leave the European Union without a withdrawal agreement”, for example. That would generally be considered “neutral”, as it does not express an opinion about those plans, one way or another.
When the Act passed, there was debate about whether such a motion would be amendable. This is because the Standing Orders of the Commons say that where, in the opinion of the Speaker, a motion is expressed “in neutral terms”, no amendments to it may be tabled (SO 24(b)).
Grieve’s amendment to the business motion for the ‘meaningful vote’ debate on the deal has now addressed this. It disapplys Standing Orders 24(b) to any motion tabled under Section 13 of the EU Withdrawal Act. This will allow MPs to table amendments to the Government’s motion seeking to influence what happens next. Essentially, it ensures the Commons will have a further meaningful vote in the event they vote down the deal at the first one. While any amendments to this motion will not be legally binding on the Government, and Parliament cannot formally direct the Government, they will be politically significant.
The Government has now agreed a deal with the EU, so the 21 January deadline in the EU Withdrawal Act loses its importance. It only relates to a situation where the UK has not reached an agreement ‘in principle’ with the EU. Therefore there is no time limit in domestic law for the meaningful vote, it only needs to take place before the UK leaves on 29 March.
The Government claims that Parliament cannot force ministers to adopt a particular stance in the negotiations. In particular, the Government has argued that ministers could take the UK out of the EU without a deal, even if that was not the will of Parliament. In reality, however, the politics of a 'no deal' scenario, or a scenario in which the Government could not get its deal through Parliament, would be extremely fraught.
The Government would probably come under political pressure to resign, to subject itself to a vote of no confidence in the Commons, or to move a motion for an early general election under the Fixed-term Parliaments Act 2011. What happened next would depend not on the precise terms of the EU Withdrawal Act, but on the UK’s Brexit policy, as it then stood, and on how the EU27 responded to it.