The Government has been saying since October 2016 that Parliament will have a vote on the Brexit deal it negotiates with the EU.
For a long time this was no more than a stated intention. However, during the passage of the EU Withdrawal Act, the cornerstone of the Government’s programme of Brexit legislation, the Government agreed to change its original proposed procedure for Parliament’s consideration of the Brexit deal. Following negotiations with a group of pro-EU Conservative MPs, led by Dominic Grieve, Section 13 of the bill now gives Parliament a ‘meaningful vote’ on the deal.
Section 13 of the EU Withdrawal Act 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.
This gives Parliament a much stronger role in the ratification of the Withdrawal Agreement than under normal parliamentary procedure set out in the 2010 Constitutional Reform and Governance Act. Under the Constitutional Reform and Governance Act, Parliament has 21 sitting days to vote against the ratification of a treaty but there is no obligation on the Government to schedule time for a vote.
The Government has confirmed that the 2010 Constitutional Reform and Governance Act will also apply to the Withdrawal Agreement, in addition to the provisions under Section 13.
On 15 January, MPs held a ‘meaningful vote’ on the Government’s deal with the EU, and rejected it by 432 votes to 202.
Following renegotiations with the EU, the Government was able to secure further assurances on the Northern Ireland backstop in the form of three new documents. It held another vote on 12 March but was defeated again, by 391 votes to 242.
On 18 March, the Speaker of the House Commons made a statement saying that, in accordance with parliamentary rules in Erskine May, the Government cannot ask the House a question which is “substantially” the same to a question it has already been asked. This, in theory, means the Government cannot hold another meaningful vote unless it is “substantially” different to the vote held on 12 March.
But the Speaker wasn’t entirely clear what would need to be different – although did tell Hilary Benn, Chair of the Exiting the EU Committee, that a ‘demonstrable change to the proposition’ would be required. In his evidence to the Exiting the EU Committee, David Natzler, Clerk of the House of Commons, suggested that a change in political circumstance could render the question different in substance to the first, noting that the rule against considering the same matter twice was not designed to obstruct the will of the House. The Speaker may set a higher bar – looking for changes to the political declaration (the EU has ruled out renegotiating the Withdrawal Agreement) – before agreeing that the Government can hold another vote.
However, the Government still needs to pass a meaningful vote before it can ratify a Withdrawal Agreement – whether or not it decides to negotiate substantial changes to the deal.
There are ways the Government can get around this ruling. It could use a ‘paving motion’ to pave the way for another meaningful vote – acknowledging the parliamentary convention but setting it aside for the purpose of the vote. It could also introduce the Withdrawal Agreement Bill (as we set out below) to override the provisions of the EU Withdrawal Act which require a meaningful vote. However, both of these options would require a parliamentary majority to approve it.
The Government could, in extreme circumstances, prorogue Parliament (end the session early) because the convention only applies to questions asked in one parliamentary session. But this scenario doesn’t resolve the challenge of finding a majority for the deal itself.
If Parliament passes an amended motion to approve a 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 choose to make this advice available to the Commons, although this would not stop Parliament from obtaining conflicting advice, as MPs did in 1993 when they considered amendments to legislation approving the Maastricht Treaty.
If the motion were amended and MPs did believe that this stopped the Government from ratifying a deal 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.)
The Government does not need to pass an approval motion before it brings forward the EU Withdrawal Agreement Bill
Before any deal can be ratified, the Government needs to implement the Withdrawal Agreement (but not the Political Declaration) into domestic law. The Government has said it intends to do this through the EU Withdrawal Agreement Bill.
The EU Withdrawal Act does not specify that the motion must 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. The Government could therefore introduce the EU Withdrawal Agreement Bill before Parliament has signed off a deal through an approval motion. Indeed, the bill itself could include a clause that removes the need for a separate approval motion.
However, introducing the bill before Parliament has signed off the deal seems unlikely. First, the legislation has been drafted on the basis of the Government’s current deal and may need amending to reflect any changes to the Withdrawal Agreement. Second, the contents of the bill will lay bare the domestic legal consequences of the Withdrawal Agreement, potentially undermining attempts to bring MPs round to supporting a version of the Prime Minister’s deal.
If there isn’t enough time for the 21 sitting days needed before the Government can ratify a deal under the Constitutional Reform and Governance Act, it could include a provision in the EU Withdrawal Agreement Bill to say its passage fulfils obligations on the Government set out in the Constitutional Reform and Governance Act. Even without such changes, the Constitutional Reform and Governance Act procedure can be avoided if a minister believes there is an exceptional case for doing so.
The motion passed by Parliament on 14 March said that if MPs approved a deal by 20 March, the Government would request an extension to Article 50 to ensure there is sufficient time for ratification.
We are regularly updating our explainer ‘Parliament’s next steps on Brexit’ with all the information on Brexit motions and amendments.