Despite anxiety, MPs will be able to make their voices heard on Brexit without pushing Britain over the no-deal cliff. But what happens beyond that is anyone's guessby Tom Clark / November 9, 2018 / Leave a comment
How MPs will have their say
Brexit is not yet a done deal. Some arcane parliamentary procedure still stands in its way. Thanks to a rebel amendment to the EU Withdrawal Act any deal with Brussels can only be implemented once the Commons has approved the deal. Further flesh was added to the bones of the “meaningful vote” in the summer when ministers spelled out that MPs would have to approve this immediate “divorce agreement,” and also (and just as important) a political declaration on the outline of future relations with the EU.
In the ordinary run of Commons business, amendments to a motion are voted on before the motion itself. But with Brexit, ministers want a clean “Yes” or “No” to their deal, and No 10 spins that the only choice is between Theresa May’s deal and no deal at all. This has led to fears the vote will be on an unamendable “take note” motion, so that the only options are backing the PM and forcing the country over the cliff. That won’t sound meaningful to MPs who would like to add conditions, stop the clock, force a new referendum or revise the whole Brexit strategy as David Allen Green recommends.
In reality, if MPs don’t like a putative May deal, they should be able to secure votes on alternative propositions. Indeed, an official annex sent to the Procedure Committee by the Brexit Secretary, Dominic Raab (above), spelled out that this could be done by adapting the Opposition day practice, where motions are voted on first, and amendments later. Alternatively, as the Clerk of the House, David Natzler, discussed with the Brexit Committee recently, MPs could look to the multiple motion procedure they used to vote on electing various proportions of the Lords in 2003 and 2007. There was, Natzler said, no reason why procedures could not be devised to ensure that the will of the House is expressed.
So MPs should get their say. But that isn’t the same as retaining control in the aftermath of the government’s deal being voted down—or in the event that May ends up with no deal at all. The box overleaf considers both scenarios.
What happens if PM falters?
Most of the chatter about a “meaningful vote” assumes a deal of some sorts is done. In the alternative “no deal” world where there is nothing to vote on by 21st January, all ministers have to do is make a statement setting out plans, and move an unamendable “take note” motion. Unless and until something changed, we’d then be hurtling towards a hard exit under European law, which could soon come to seem like the only law with much meaning at all.
Nor will MPs be in automatic charge of events if there is a deal, and they vote it down. For one thing, while the law is clear about the requirement for a vote, it does not follow that the result of that vote constitutes the law. Law is made when a Bill passes through the Commons, then the Lords and is signed off by the Monarch; motions of the Commons calling for this or that are not a substitute: they do not guarantee that anything happens. As Clerk David Natzler pointedly reminded MPs in October, the Commons has carried—overwhelmingly, and unopposed—resolutions demanding Britain recognise Palestine as a state, and yet that recognition has not come.
Further thickening the fog are the novel procedures for multiple motions which might be used—if majorities endorse two or more paths ahead, there are no rules about which route gets pursued; the relative size of the majorities has no formal bite. Don’t look to the courts to clear things up: the 1689 Bill of Rights keeps them off a self-governing parliament’s turf. Even more fundamentally, nearly all the changes that MPs might want—a different model of future relations, a different approach to something specific, such as the Irish border—would rely on co-operation from Brussels. Even if parliament voted to throw the whole Europe question back to the people through a new referendum, the EU would still have to agree to pause the Article 50 clock. London could attempt to outright revoke its withdrawal unilaterally, but the European Court of Justice would have to agree that was valid.
Besides, “London” in the EU context does not mean parliament: it means the government of the day. Politically, there is no way May could pull off an 180-degree body swerve on the defining issue of her premiership, even if she wanted to. In days gone by, you might have expected things to be resolved by the government somehow falling, and an election being triggered. With the Fixed-term Parliaments Act, though, that can’t happen unless MPs positively vote for it, which—in the old joke—is like turkeys voting for Christmas. But MPs should not be discouraged. They should instead remember that the thing that counts in a political crisis is raw political power. They have it, and would need to use it—either to change the government’s mind, or else to change the government itself, by changing the prime minister.
Read more: we didn’t have to do Brexit in this damn silly way