Britain’s former first parliamentary counsel says MPs are not being side-lined despite the arguments about processby Stephen Laws / October 23, 2018 / Leave a comment
There are some recurring themes in the Brexit process. One of them is the accusation that the government is seeking to deny parliament its proper say.
This accusation resurfaced again last week following a government memorandum to the House of Commons Procedure Committee. The Committee is considering what procedure should be followed when the Commons votes on whether to approve any withdrawal deal agreed with the EU. It had asked the government for its views on the matter and Brexit Secretary Dominic Raab provided the memorandum in reply.
The controversy about the memorandum revives tensions between different understandings of the function of the “meaningful vote” that MPs were promised on the withdrawal deal. The tensions have been aggravated by the fact that, during the passage of the Bill for what became the European Union (Withdrawal) Act 2018, that promise was turned into a legal requirement. Doing so has added a legal dimension to an issue that might better have been left to politics.
Section 13 of the Act sets out various requirements that must be satisfied before the government can “ratify” any agreed withdrawal deal. One is that the Commons must agree to a resolution approving both the deal and an agreed framework for the future relationship. Another is that parliament must have passed an Act “containing provision for the implementation” of the withdrawal deal itself.
The Commons procedure that would otherwise apply to the approval vote needs some modification for technical reasons: to prevent the debate on approval being limited to 90 minutes. The Procedure Committee has been looking at whether other departures from the default procedure should be recommended to the House.
The current controversy is about the ways in which the Commons should be able to amend the approval motion. There is no doubt that it will be an amendable motion. On that basis, the default procedure would be for amendments to be put down and, if selected for debate by the Speaker, voted on. Only when all the selected amendments had been disposed of would there be a final vote on the original motion or, depending on what had happened in the earlier votes, on the original motion “as amended.”
The government memorandum quite rightly points out that the foreseeable amendments to a motion to approve something (imposing pre-conditions or a delay, eg for a public vote, or stating the assumptions on which the approval is given) all have the potential to turn an approval into something that would have to be understood for legal purposes as declining to give approval. Any qualifying amendment would be likely to raise at least a doubt about whether approval had been given. The government is understandably concerned that it should not be left uncertain about whether a legal requirement of the 2018 Act had been satisfied, and so about whether it could lawfully ratify the withdrawal deal.
The memorandum draws attention to an alternative procedural precedent that would allow the voting to begin with a vote to give unqualified approval, and then, only if that vote were lost, for there to be votes on amendments (eg perhaps to add an explanation for the denial of approval). That procedure would save the government from having to persuade MPs intending to give their approval for legal purposes—but doing so only grudgingly—to vote against amendments that in practice would make ratification impossible or risky.
From the purely legal perspective of the government, the adoption of the alternative procedure makes perfect sense and seems unobjectionable.
To those who see the vote, more broadly, as parliament’s opportunity to decide what happens next after a deal has been reached with the EU, it understandably seems unduly constraining, and they have said so. To them it only makes sense, to make a single decision about how generally to respond to the fact that the terms of the agreements on withdrawal and the future relationship are now known. It is these two different perspectives that are at the root of the latest controversy.
“The influence of parliamentary opinion on government has seldom been more obvious”
One answer to those who see the approval vote as having more than the purely legal function that it was given by section 13 of the 2018 Act is to say that this is not a new controversy but was settled by the compromise contained in that section. Under that section, government is required to come up with proposed alternatives to the agreed deal and framework only if the Commons denies them approval. The Act then requires the Commons to be given an opportunity to debate the government’s proposed way forward. It is clear, though, that the debate required by that Act at that stage will be on a motion that will be incapable of being amended.
There are two other factors relevant to this controversy that mean that the different sides of it may each be overstating their case.
If an approval were given by the Commons vote subject to an amendment that left doubt about whether the government could ratify the deal, the government would still be able to introduce the Bill that it is required to introduce for implementing the deal. That Bill could then contain a provision which removed any uncertainty about whether the approval requirements for ratification had been satisfied.
It would not be surprising if the government thought that to be an unsatisfactory approach. It would prolong uncertainty and might be difficult to explain to parliament. On the other hand, the repeal of all the pre-ratification requirements in section 13 of the 2018 Act once they had served their purpose—but before ratification—would have the significant advantage that section 13 could not subsequently be used for overturning the ratification on a legal technicality (such as one relating to whether the Bill itself had properly implemented the deal).
The other factor is the undue reliance placed by those on the other side of the controversy, on the lawyerly fallacy that the Commons can influence government on a particular matter only if it is given opportunity to do so in a procedure specifically designed to be used in connection with that matter. That is not how parliament is required to work, nor is it how it does work in practice. That has recently been demonstrated by the DUP’s threat to the government’s budget if its requirements for the withdrawal deal are not met.
There is considerable irony in the recurring accusation that parliament is being side-lined in the Brexit process. The one thing that has been most clearly demonstrated by that process is the reputational damage that will be inflicted on a government that finds itself compelled, in this case mainly by the referendum result, to disregard the principal operating rule of the British constitution: do not seek to implement policies that lack sufficient support in the House of Commons. The real and significant influence of parliamentary opinion on government (which is often underrated in normal times) has seldom been more obvious. The power of that influence is inherent in the system and survives with or without statutory obligations or specially tailored procedural mechanisms.
Furthermore, it also needs to be borne in mind that it is a very common feature of political life that, where there are different views on the substance, the best tactic for building an alliance against something is often to attack the process that is being used to advance it.