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.
Under the EU Withdrawal (No.2) Act – the so-called Benn Act – the government was required to seek an extension to Article 50 if MPs haven’t approved a deal, or leaving the EU without a deal, by 19 October. After the EU and the UK renegotiated the Withdrawal Agreement and Political Declaration, the government attempted to hold a vote on the deal as required under the Benn Act and the EU Withdrawal Act.
MPs voted in favour of an amendment to the government’s motion, tabled by Oliver Letwin. The government then did not contest the final, amended motion, meaning it passed without a division. Because of this vote the government were required to seek an extension to Article 50 under the terms of the Benn Act.
Who tabled the amendment?
What does the amendment say?
How did MPs vote?
|(a)||Oliver Letwin, Independent MP (former Conservative)||
It removes most of the text of the motion to say that the House has ‘considered the matter’ but won’t approve the deal until the implementing legislation – the Withdrawal Agreement Bill – is passed.
The government wishes to hold a vote on the deal and have timetabled a vote under Section 13. However, this would effectively be the same motion that was held on Saturday, even though it was later amended. The Speaker might reject holding another vote, under convention that the same motion cannot be brought back repeatedly in the same parliamentary session. The Speaker rejected Theresa May’s third attempt to get her deal passed by MPs on these grounds back in March.
If the government cannot get approval for its deal through a Section 13 motion, it may attempt to ratify the Withdrawal Agreement through the Withdrawal Agreement Bill and include a clause that bypasses the need to get prior approval.
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.
The final attempt made by Theresa May to persuade MPs to approve the Withdrawal Agreement (without the political declaration) was defeated by 344 votes to 286.
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.
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.