No deal is the default position if the Withdrawal Agreement is rejected by Parliament – but the situation is complex and developing quickly. Omar Salem explains what would be needed for a no deal Brexit to be avoided.
As things currently stand, the UK will leave the EU by operation of law at 11pm on 29 March 2019. If Parliament does not vote for the Withdrawal Agreement (WA) the default is a no deal Brexit. However, Hilary Benn, chair of the Brexit select committee – along with many other MPs – believes that Parliament won’t allow a no deal Brexit to happen. It is also unlikely that the cross-party amendment to the Finance (No. 3) Bill proposed by Yvette Cooper MP and passed by the Commons will prevent a no deal Brexit – although 303 MPs voted for it.
So what can prevent a no deal Brexit? Here are the options:
1. The WA being ratified by the UK Parliament and the European Parliament without conditions or amendments.
2. The WA being ratified by the UK Parliament with conditions or amendments. This would then need to be agreed with the European Council, consented to by the European Parliament, and the Council of the European Union will need to conclude the Withdrawal Agreement acting by qualified majority. It is questionable whether there is sufficient time for this, so this option may need to be combined with 3(a) below.
3. The UK and the EU27 agreeing a delay in the date that the UK leaves the EU, while one of the following takes place:
a) Further negotiations on the Withdrawal Agreement or the Framework for the Future Relationship;
b) Preparation for a no deal Brexit;.
c) A general election;
d) A second referendum.
4. The UK rescinding its notification under Article 50 and remaining in the EU.
1 The meaningful vote
Section 13 of the European Union (Withdrawal) Act 2018 requires that the WA may be ratified only if it and the Framework for the Future Relationship have been approved by a Commons resolution. This vote has come to be known as the “meaningful vote”, although it can also be used to describe a broader set of votes (such as votes on the European Union (Withdrawal Agreement) Bill, which needs to be passed by Parliament for the UK to ratify the WA) – and also whether the vote gives Parliament a meaningful opportunity not only to reject or approve the WA but to direct the Government as to what should happen next in a vote.
This vote was originally expected to take place on 11 December, but was delayed by the government, and it is now scheduled for 15 January. But there may be a further delay to the vote – or if the government loses it, it may retable the resolution for a further vote.
The EU (Withdrawal) Act 2018 requires the government to move a motion for the Lords to take note of the WA (the Lords’ approval is not required). This is expected to be debated on 14 January and Labour has laid a motion to be debated then which opposes a no deal Brexit and the WA.
2 Amendments to the resolution for a meaningful vote
There has been a great deal of confusion about whether the resolution should or will be amendable and, if so, how. David Davis, when he was Brexit secretary, told the Brexit select committee in April 2018 that the resolution would be amendable. In October 2018 Dominic Raab, the new Brexit secretary, agreed that the motion was acceptable but argued that the Commons should use a procedure whereby it would vote on the resolution unamended before considering further amendments. This was because the government was concerned that an amended motion (e.g. approving the WA subject to certain conditions) would not provide legal certainty as to whether it had actually been ratified.
The Procedure Committee subsequently published a report recommending that the Commons should use its usual practice of voting on amendments before voting on the main motion, and the government has accepted this. The Clerk of the House has said that he does not consider that an amendment would create a new statutory obligation on the government. However, Hilary Benn, among others, believes that it would have significant political impact.
This week, the government, despite its previous misgivings about amendments, accepted an amendment from Hugo Swire to the resolution approving the WA, aimed at requiring that the Northern Ireland backstop can only last a year.
A possible solution to the problem of knowing whether an amended resolution would allow ratification of the WA would be to amend the WA, and then have a further vote in the Commons on the amended agreement.
3 What happens if MPs vote down the Withdrawal Agreement?
If Parliament does not pass the resolution, then a minister must, within 21 days, make a statement setting out how the government proposes to proceed – and set in train ‘a motion in neutral terms’ within seven Commons sitting days. However, as a result of an amendment tabled by Dominic Grieve and passed by the Commons, if the WA is voted down the government will be required to table a motion considering Brexit within three sitting days (i.e. potentially by 21 January).
The reference to “neutral terms” is meant to engage a Commons Standing Order which provides that a motion expressed in neutral terms may not be amended. It is, however, expected that the motion will be amendable, as the House passed an amendment on 4 December tabled by Dominic Grieve to that effect, stating that this Standing Order would not apply to the WA..
Because the motion is amendable MPs will have the opportunity to an express a view on the approach that the government should take if MPs reject the WA. However, the resolution (as amended if applicable) will not be legally binding. It has been suggested that MPs could exert pressure on the government if it did not act in accordance with the amended resolution, such as refusing to pay ministers’ salaries.
The government is currently aiming to only allow one amendment to be voted upon by MPs. If this happens, it will reduce the chance of a majority of MPs voting for an alternative to a no deal Brexit.
4 No confidence motion or general election
A no deal Brexit could potentially be delayed or prevented by a no confidence motion leading to a change of Prime Minister or a general election. Under the Fixed Term Parliaments Act 2011, the next general election is due to be held on 5 May 2022. The Act specifies that early elections can be held only:
• if a motion for an early general election is agreed either by at least two-thirds of the whole House or without division; or
• if a motion of no confidence in the government is passed and no alternative government is confirmed by the Commons within 14 days.
No confidence motions can also be in the Prime Minister personally, but these do not trigger the Fixed Term Parliament Act. While a majority of MPs expressing no confidence in the PM or the government is likely to be politically fatal for May, it does not necessarily mean there will be a general election leading to a delay in the Brexit date or a change in the government’s position. Any delay in the date for the UK to leave the EU to allow for a general election would need to be agreed with the EU27. Even if there is a general election, it will not necessarily lead to a government that is able to negotiate a Brexit deal that it can get through Parliament.
5 Delaying Brexit or halting Brexit
It is anticipated that if the government asked for a delay in the implementation of Article 50, the EU would agree to it – but only where the delay was to allow for a general election or a second referendum. For a second referendum to take place, legislation would be needed and this would mean that the question(s) would need to be agreed by Parliament. This could not be brought about just by a parliamentary motion, or even a change of government policy, if the government does not have a working majority.
The EU might also agree an extension where there are clear new negotiating goals, or to allow more time to prepare for a no deal Brexit – but this is less clear, and currently seems unlikely. Such an extension would require the unanimous consent of all the remaining EU27.
Alternatively, the European Court of Justice has ruled that the government could unilaterally revoke the Article 50 notification provided that “that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.”. There is debate about whether that would require legislation or parliamentary approval. However, it seems politically unlikely that a government would attempt to revoke the Article 50 notification without the approval of the Commons. The ECJ gave an example of an “abusive practice” as a withdrawing member state using successive notifications and revocations in order to improve the terms of its withdrawal from the EU.
MPs may try other parliamentary means to challenge no deal, such as by amending other legislation to make no deal difficult for the government, or opposing the statutory instruments that are needed to implement a no deal Brexit. Another tactic might be a “humble address” against a no deal Brexit. This is a type of Parliamentary resolution under which contempt proceedings may be brought if it is not complied with. Labour used this successfully to have the government’s legal advice on the Northern Ireland backstop published.
The question is whether the parliamentary arithmetic means there is a majority in Parliament not just against no deal, but for an alternative.
Key to the result will be Labour’s position. At its September 2018 conference the party passed a resolution saying that Labour MPs must vote against any Conservative deal failing to meet Labour’s “six tests” in full. It also says a no deal Brexit should be rejected as a viable option, and calls upon Labour MPs to oppose any attempt by the government to deliver a no deal outcome. The motion adds that Parliament should vote down the WA, or if talks end in no deal, a general election should take place. It then says that if Labour cannot get a general election then it must support all options remaining on the table, including campaigning for a public vote. However, even if the Labour shadow cabinet follows the resolution, it does not mean that all Labour MPs will vote the same way. Hilary Benn and many others have said that MPs will not allow a no deal Brexit. However, they have not yet explained which alternative a majority of MPs would support.
This post represents the views of the author and not those of the Brexit blog, nor the LSE.
Omar Salem is an Associate in the Financial Regulation Group of Linklaters LLP, London. He provides legal advice on complex regulatory matters (e.g. Brexit, MiFID II and the SMCR). Omar is an Executive LLM student at the LSE. He writes in a personal capacity.