64: Avoiding a ‘no deal’ Brexit – when the deal goes down

Aaron Nelson Legal Director

On 21 January, following the House of Commons’ rejection of the Government’s Brexit deal, the PM returned to the Commons to make her so-called ‘plan B’ statement. She also tabled a motion, which is to be debated on Tuesday 29 January.

I’m Haunted By Things I Never Meant Nor Wished To Say

Tuesday’s motion is amendable, and (unsurprisingly) MPs have tabled a large number of amendments designed to prevent an immediate ‘no deal’ exit. Some require the Government simply to rule it out, others would require the Government to ask the EU to extend the article 50 period, others seek to give the Commons (through a range of different procedural mechanisms) an opportunity to vote on a range of Brexit options, to see what there might be a majority for (if anything). The Institute for Government have produced an extremely useful daily tracker of the amendments proposed.

Note that those amendments which would seek to direct the Government along a particular course of action (eg Vince Cable’s which would require the Government to rule out a no deal Brexit) would carry political force but are not legally binding, while others which amend how the Commons functions (eg Dominic Grieve’s, which would amend the Commons’ Standing Orders to give MPs a chance to vote on different Brexit withdrawal options), are binding because the House ultimately decides its own rules.

The Government has also decided to follow the necessary steps under EUWA for a ‘no deal’ scenario, namely making a statement to the House and a motion to be moved in ‘neutral terms’, in order to avoid any legal uncertainty about whether it has fulfilled its EUWA obligations in this regard. This motion is being combined with the Plan B motion and so will also be debated and voted on 29 January.

But the Cabinet agreeing to make preparations for no deal is not the same as actually being willing to leave without one: Liam Fox would – sticking to the ‘no deal is better than a bad deal’ mantra – but the Chancellor, Amber Rudd and Business Minister Richard Harrington would not (‘People did not vote to be worse off, they voted to be better off and they were told that was possible and it is our job to try to deliver on that for them’ the Chancellor told R4’s Today). Might Tuesday see Cabinet members resign, in order to vote against the Government?

Wisdom Grows Up In Strife?

So, is the Commons going to find a solution? One of the solutions (albeit temporary) around which MPs appear to be coalescing is a further EU (Withdrawal) Bill.

Now, in a sign of how fast things are moving, this is not the EU (Withdrawal) (No. 2) Bill presented by Nick Boles MP which we discussed last time, which would have required the Government to request an extension to the Article 50 Brexit process, and would have given the House of Commons’ Liaison Committee are role in determining Brexit policy. Those proposals went up in flames almost immediately when the Liaison Committee’s Chair (Sarah Wollaston) rejected it playing such a role.

So No. 2 was superseded by No. 3, this time in the name of Yvette Cooper. No. 3 does not provide a role for the Liaison Committee but, instead, would create a legal mechanism whereby the House of Commons can instruct the Prime Minister to ask the European Council for an extension to Article 50 in the absence of an approval resolution for an exit deal from the EU, restricting the Prime Minister’s discretion about whether and when to seek an extension to the two-year negotiating period under Article 50(3) TEU.

The process proposed under the No. 3 Bill is that, if no deal has been ratified by 26 February 2019 (about a month before Brexit day), the PM would have to give the Commons the opportunity to insist that she seek an extension to 31 December 2019. If the House adopts such a resolution, she must then request it. If the resolution says anything beyond that (eg re holding a second referendum), the Prime Minister must ‘seek to give effect to’ its terms. The Bill also allows for an extension of a different time period.

Of course, it would only be an instruction ‘to seek’ an extension because the two-year period under Article 50(3) cannot be extended unilaterally. Even if the Prime Minister ‘requests’ an extension, it can only happen by way of a ‘unanimous decision’ of the European Council. The Bill contemplates an extension to 31 December 2019, but any extension, and any new date of withdrawal, would need to be agreed to by the Governments of all 27 other Member States of the EU.

I’ll Be With You When The Deal Goes Down

Could it become law? The No.3 Bill is a Private Member’s Bill, not having been introduced by the Government. Within the categories of Private Member’s Bills, it is neither a Ballot Bill nor a Ten Minute Rule Bill but a Presentation Bill. That means that, normally, there would be limited opportunity for MPs to secure time for debate. (Unlike a Ballot Bill, it would not even be given priority for a Second Reading debate.)

But these are not normal times. In conjunction with her Bill, Cooper has also proposed an amendment to the 29 January ‘neutral motion’ to change the rules of the House of Commons in order to give opportunity for her Bill to become law. Her amendment, if passed, would suspend Standing Order 14(1) (which gives Government business precedence in the House) on 5 February. It also proposes that, on that day, a business of the House motion (which sets out how Commons’ business proceeds) connected to this new piece of legislation – the No.3 Bill – which has the support of at least 10 MPs from four different parties would be the first item of business. After the House has voted on the motion, it will then move on to the second reading of her Bill.

Clearly there are number of procedural hurdles to overcome. But with even the Queen sending a thinly veiled message to MPs to sort something out, it may be that some form of consensus around avoiding a no deal Brexit emerges. In any event it constitutes a rare example of Parliament seeking to assert control over the Government, with a genuine prospect of success.

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