58: Brexit and the meaningful vote – Three steps to heaven

It’s now less than five months till Brexit day (29 March 2019) and, notwithstanding leaked memos which may or may not set out the Government’s strategy for selling its deal, it remains unclear whether the UK will be leaving with or without a ‘deal’.

Time for negotiation, once measured in years, has turned to months, and then weeks. The October summit (long the ‘hoped for’ date for conclusion of the negotiations) came and went without a deal, and it seems the November summit may also be inconclusive. Recent reports indicate that UK and EU negotiators have entered a ‘tunnel’ – a period of private talks during which neither side is expected to brief outsiders on developments – in a bid to conclude matters. Media reports have described the deal as 95% done, but rate the chances of concluding the remaining 5% (read Northern Irish border) at no better than 50 – 50.

But let’s assume there is a deal. What would happen next? The short answer is that the deal must be ratified, because the Withdrawal Agreement is a form of international treaty and the UK is a ‘dualist’ system – ie international obligations do not have domestic effect unless Parliament agrees.

Three steps to heaven

In order for the deal to be ratified, three parliamentary processes have to take place before ‘exit day’ (ie 29 March 2019):

• approval of the final deal (ie on the future relationship) as negotiated under the Article 50 process, as required by the European Union Withdrawal Act (EUWA) 2018. This is Parliament’s ‘meaningful vote’;
• the Government will then introduce the Withdrawal Agreement Bill (WAB) ‘as soon as possible after Parliament has approved the final deal’. The passing of an Act of Parliament ‘which contains provision for the implementation of the withdrawal agreement’ is required under EUWA, s13(1)(d)). Given the Withdrawal Agreement may now not be agreed until December, and the ‘meaningful vote’ under s13 EUWA may not happen until early 2019, the time available to get the WAB through Parliament is likely to be extremely short; and
• a final scrutiny process under the Constitutional Reform and Governance Act 2010 (CRAG), ie the Withdrawal Agreement must be laid before both Houses of Parliament for a period of 21 sitting days. This is explicitly preserved, notwithstanding the ‘bespoke’ EUWA provisions, by EUWA , s13(14).

The Government can (in practice, would) then ratify the Withdrawal Agreement. It is only once these stages have been completed that the Withdrawal Agreement (and the financial settlement which forms part of it) become binding.

Let’s look at the first step in a little more detail.

The formula for heaven’s pretty simple…

Section 13(1) of EUWA provides that the a Minister must lay before Parliament:

• a statement that political agreement has been reached;
• a copy of the negotiated withdrawal agreement; and
• a copy of the framework for the future relationship.

The negotiated withdrawal agreement and the framework for the future relationship must be approved by a resolution of the House of Commons (s13(1)(b)) and must be debated by the Lords (s13(1)(c)). In terms of timing, s13(2) provides that, so far as practicable, the motion should be debated and voted on by the House of Commons before the European Parliament decides whether it consents to the withdrawal agreement being concluded on behalf of the EU in accordance with Article 50(2) of the Treaty on European Union.

Things do go wrong…

EUWA, s13 also provides for two other circumstances.

First, if by 21 January 2019, there is ‘no agreement in principle’ (s13(10)) or the Prime Minister has made a statement that ‘no agreement in principle’ can be reached (s13(7)) ‘… on the substance of … the arrangements for the United Kingdom’s withdrawal from the EU, and … the framework for the future relationship between the EU and the United Kingdom after withdrawal,’ ie in effect a ‘no deal’ scenario. Second, if Parliament uses its ‘meaningful vote’ to reject the Government’s deal (s13(3)).

In any of those circumstances, a Minister must:

• make ‘a statement setting out how Her Majesty’s Government proposes to proceed’ (EUWA, s13(4), 8(a) and 11(a));
• make arrangements for a ‘motion in neutral terms’ to be moved in the House of Commons (EUWA, s13(6)(a), 8(b)(i) and 11(b)(i)); and
• a ‘take note’ debate must take place in the Lords (EUWA, s13(6)(b), 8(b)(ii) and 11(b)(ii)).

Just follow the rules and you will see…

It was the subject of heated debate during the closing stages of the EUWA’s passage through Parliament whether the motion on the ‘meaningful vote’ should be amendable by the House of Commons: if it were, then Parliament could, if it were unhappy with the deal struck by the Government, amend the motion to direct the Government to proceed in a particular way, eg to return to the EU and try to renegotiate, or to try to extend the period allowed for negotiations under Article 50. The Government argued the vote on a deal should be of an unequivocal ‘accept or reject’ nature.

In the end, a compromise was struck:

• EUWA, s13(1)(b) (which provides for a motion to approve the ‘deal’) does not use the words ‘in neutral terms’, meaning it could be amended; and
• EUWA, s13(6)(a), (8)(b)(i) and 11(b)(i) (the ‘no deal’ or ‘rejected deal’ provisions) expressly refer to a motion ‘in neutral terms’, which means that any motion tabled pursuant to those sections would not be amendable. Standing Order 24B (Amendments to motions to consider specific matters) states that:

’24B. Where, in the opinion of the Speaker or the Chairman, a motion, That this House, or, as the case may be, the committee has considered the matter, is expressed in neutral terms, no amendments to it may be tabled’.

However, during EUWA’s final stages in Parliament, the then SSExEU David Davis issued a written ministerial statement on “the Government’s understanding of the way in which this reference to ‘in neutral terms’ will operate in practice”. It stated:

‘Under the Standing Orders of the House of Commons it will be for the Speaker to determine whether a motion when it is introduced by the Government under [s13 of EUWA] is or is not in fact cast in neutral terms and hence whether the motion is or is not amendable.

The Government recognises that it is open for Ministers and members of the House of Commons to table motions on and debate matters of concern and that, as is the convention, parliamentary time will be provided for this’.

That statement seemed to raise the possibility that the motion for a ‘meaningful vote’ under s13(1)(b) (ie approving / rejecting the deal) might be drafted in terms which left it to the Speaker to decide whether it was, as a matter of fact, in neutral terms (unamendable) or a substantive motion (amendable). It also raised the possibility that the motions under s13(6)(a), (8)(b)(i) and 11(b)(i) might not be in neutral terms (although, arguably, those motions would then not satisfy the requirements of those paragraphs).

If that were contemplated, the Government’s tactics have now changed: it seems to have accepted that the ‘meaningful vote’ (ie approving / rejecting the deal under s13(1)(b)) will be a substantive, rather than a neutral terms, motion – and so amendable – but it is trying a different tactic to try to ensure the vote remains ‘unequivocal’.

Recently, the House of Commons Procedure Committee published a letter from the Brexit Secretary Dominic Raab along with a Government Memorandum on the Government’s views on how the procedural arrangements for the ‘meaningful vote’ should work.

The SSExEU’s letter (unsurprisingly) refers to the need for ‘an unequivocal decision’ and ‘a straightforward approval’ – anything else may not count as ‘approval’, and could end up in the courts (scenarios giving rise to legal challenge discussed in detail here). To achieve this, the Memorandum argues that normal Commons procedure (which is to vote on amendments first, then on the substantive motion) should be reversed in this case, so that the unequivocal ‘accept or reject’ meaningful vote comes before any amendments to that motion. Moreover, for any amendment to be passed, the Commons would first have to decide to reject the Government’s motion – if the Commons decided to agree the Government’s motion, then no further amendments would be voted on. There is likely to be a significant wrangle about the procedure to be adopted.

Procedural difficulties remain even if the Government’s preferred approach is accepted. For example, if the Commons rejects the ‘deal’ but subsequently passes an amended motion (eg that the Government should return to the negotiating table), is there still a requirement for a ‘neutral terms’ motion under s13(4)?

If the Government’s preferred approach is not accepted by the Commons then the motion could be amended before MPs decide whether to accept the amended version. Might MPs try to insert a requirement for a People’s Vote? Any such amendment could make it unclear whether the deal is accepted or rejected.

(Further discussion on the meaningful vote can be found here, here and here).

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‘The formula for heaven’s very simple, Just follow the rules and you will see, And as life travels on and things do go wrong, Just follow steps one, two and three (three steps to heaven, three steps to heaven)’. (Eddie Cochrane, Three Steps to Heaven)