66: Second meaningful vote – when it comes to the crunch

Aaron Nelson Legal Director

Next week could see a decisive series of Brexit votes in the Commons, starting with Meaningful Vote 2 on Tuesday. What are they, and how did we get here?

From MV1 to MV2

Brexit watchers will no doubt remember that, on 15 January, the Government’s Brexit Deal (technically, the Withdrawal Agreement and Political Declaration on the Framework for the future UK-EU relationship) was rejected by the Commons in the first ‘meaningful vote’ (MV1) by 432 votes to 202.

Then, on 29 January (as discussed last time), MPs passed two amendments to a Government motion on its ongoing conduct of the Brexit negotiations: the first expressed MPs lack of support for leaving the EU without a deal (but wasn’t legally binding on the Government and doesn’t change the legal default); the second was a vote in favour of the Prime Minister’s deal provided ‘alternative arrangements’ could be found to the Irish backstop. This led to various backbencher collaborations to try to find such alternative arrangements, including the so-called Malthouse Compromise.

However, the Tory truce didn’t last long. On 14 February, the Government lost, by 303 votes to 258, a motion which sought to reiterate the Commons’ support for the approach to leaving the EU that MPs voted for on 29 January because the ERG flexed its muscles and abstained, claiming backing the motion would have amounted to an endorsement of efforts to rule out a no-deal Brexit.

Meanwhile, the PM’s negotiating team, now seemingly headed by the Attorney General Geoffrey Cox, have been in Brussels seeking to make progress on the Irish backstop. However, fairly early on, the ‘alternative arrangements’ requested by Parliament (or dreamed up by backbenchers) were abandoned in favour of seeking ‘legally binding assurances’ – perhaps in the non-binding Political Declaration and possibly some supplementary documentation (sometimes referred to as a codicil) concerning the key issue of the backstop – that the backstop would not permanently bind the UK into a Customs Union (despite that being what the Deal provides). Perhaps unsurprisingly, most recent reports indicate limited progress in that regard.

The PM then made a further statement on 26 February. In that, she made three commitments on further votes.

Vote 1: MV2

The first commitment the PM made was to give the House of Commons another ‘meaningful vote’ (MV2) (technically, a motion to approve a deal for the purposes of section 13(1) of the European Union (Withdrawal) Act 2018) on (or before) Tuesday 12 March. This now appears to be going ahead next week, despite the lack of progress being made in the negotiations on the Irish backstop, which means that the Deal put back before Parliament could be identical to that decisively rejected by the Commons in January. The UK legally cannot ratify a withdrawal agreement unless (among other things) this motion passes.

If the Commons approves the Deal, we would expect the Government to bring forward the EU (Withdrawal Agreement) Bill to make domestic arrangements for the deal to be ratified and implemented.

But MPs can also seek to amend the motion, in effect, attaching conditions to its approval. For example, Labour could table an amendment to make approval conditional on a further public vote. While that would not, in itself, enable a second referendum, it could prevent the Government from ratifying the Withdrawal Agreement without further primary legislation.

If the Deal is amended, the Government may nevertheless seek a short ‘technical extension’ of Article 50 (perhaps of a month or so), to ease the pressure on the parliamentary timetable for ratification and passing any required legislation.

Vote 2: No Deal

If the Commons rejects the Deal again, the Prime Minister has promised to bring forward a second motion for debate on Wednesday 13 March, to ask MPs if they would support leaving the EU without a Deal on 29 March.

This motion would not be legally binding on the Government and, of course, has no legal effect on the Article 50 process. If the Commons approved ‘leaving without a deal on 29 March,’ it would be doing no more than politically endorsing the legal default outcome. And a Commons vote against No Deal would not, in itself, prevent the UK leaving without a deal – it would simply precipitate the PM’s third commitment. Recent votes indicate only a ‘hardcore’ of perhaps 20 Tories support leaving without a Deal.

Indeed, it is not clear whether, with having seen its Deal twice rejected, the Government would advocate a No Deal Exit, given the adverse economic impacts which have been widely reported and the clear splits within the Cabinet on the wisdom of doing so.

Vote 3: Extension

If the Commons votes against No Deal, the PM has promised to bring forward a third motion for debate on Thursday 14 March that she seek a ‘short extension’ of Article 50’s two-year negotiating period.

If approved, the expectation is that the Prime Minister would ask the European Council for an extension until no later than the end of June 2019. Anything longer would raise questions about the UK’s participation (or otherwise) in the European Parliamentary elections in June. Such agreement would have to be unanimous on both the need for an extension and its length. If an extension were agreed by the Council, the UK would continue to be a Member State until that new date expired. The Government would bring forward secondary legislation to change ‘exit day’ (under EUWA) and postpone a series of changes in domestic law that were otherwise anticipated for 29 March.

As with the No Deal Vote, the outcome is amendable (so MPs can add conditions) but it is not legally binding. So, for example, if MPs amended the motion to ask for a longer extension the Prime Minister would be under no legal obligation to seek it. This maintains the PM’s constitutional control over whether and for how long the UK might seek an extension of Article 50.

If the Commons rejects the extension, the legal default remains that the UK leaves without a deal on 29 March 2019 (unless, of course, there were then a third meaningful vote which passed the Deal, or UK unilaterally withdrew its notification under Article 50), which the PM has said she will not do.

So, next week could be the week when the UK’s post-Brexit destination finally becomes clear. But then again, the Government’s Deal and No Deal could both be rejected, and Parliament could charge the PM with seeking a significant extension of time to allow further ruminations on what destination, if any, there might be a political majority for. Would the EU accept that ongoing limbo, or would it suggest that (in those circumstances) the Article 50 notice should be withdrawn?