A legal professor and constitutional expert weighs up the possibilities aheadby Sionaidh Douglas-Scott / January 16, 2019 / Leave a comment
Given that Theresa May’s Brexit Withdrawal Agreement was subject to a crushing defeat in the Commons last night, it might look as if parliament is “taking control” of Brexit. A majority of 230 voted against the deal—the biggest defeat for any government in modern times. But does this translate into parliament being able to mandate changes to Brexit policy? That is less certain.
Of course everybody wants to know what will happen next. I will discuss what seem at least to be feasible developments, along with their essential legal or constitutional dimensions.
We know that the opposition has tabled a vote of No Confidence to be held on Wednesday. It is likely to be lost because the DUP, who are supporting the government in a confidence and supply agreement, have said they will not vote against the government. In any case, motions of no confidence do not have a very high success rate (although they tend to be more successful when lodged against a minority government). However, if Corbyn were to win the vote (and to win he would need a simple majority of MPs, ie at least 326 votes) then this would lead to a general election (under the Fixed-term Parliaments Act) if no new government could be formed within 14 days.
If Corbyn loses that vote, the government remains in office, and (thanks to the “Grieve amendment” successfully tabled last week), the government now only has three working days to return to make a statement to parliament on how it intends to proceed, and not 21 as is stated in the EU (Withdrawal) Act 2018 (EUWA). That difference matters, because time is truly running down on the Brexit clock, and much remains to be done.
So, if the government wins the confidence vote, and Theresa May chooses not to resign (she cannot be challenged from within her own party for 11 months, following the unsuccessful challenge against her by Tory MPs in December 2018) what could then happen?
Some possible next steps
The following are legal and constitutional possibilities, but most of them are dependent on political will, so that creates uncertainty. Even the constitutional position is unclear, given that the British Constitution is not codified, but made up in part of a host of constitutional conventions, procedures and practices, very often arcane, recondite and difficult to track down—and then, so often not legally enforceable but malleable, allowing for flexibility and manoeuvre. This is why there has been so much argument and debate over recent decisions taken by the speaker John Bercow, as to whether certain amendments should be allowed. The answers lie in pages of Erskine May, or Parliamentary Standing Orders, or custom and practice, and even then, not everyone agrees on what those answers are. Brexit has opened up a box filled with dark matter, the deeper reaches of the British Constitution.
But to try to set things out in an orderly manner, here are what seem to be the most likely eventualities:
a) Theresa May continues as usual, returning to Westminster within three days as mandated, declaring an intention to continue working on the existing Withdrawal Agreement, hoping for some accommodation from the EU, and hence a deal that a majority of MPs could vote for. If she does not resign, such conduct on her part is quite likely, and legally valid, as, in returning to the Commons to state her “Plan B,” she would be following the procedure set out in s 13 EUWA. However, it is unlikely the EU would amend the deal in any significant way, although it might make a small attempt to help her out in non-binding ways.
Some also claim that parliamentary rules prevent her from returning the same deal again, although it might be easy enough for her to slightly alter the wording of the motion to claim that it was not identical. In any case, May has already taken five weeks since 10th December, when the original vote should have taken place, and has been unable to obtain any significant concessions from the EU. So it is difficult to see what might be achieved by the attempt to return the deal for another vote in the House, other than provoking a horrible sense of déjà vu, exasperation and hopelessness in the face of the biggest crisis of our times, and an incitement to MPs to do their best to achieve one of the other alternatives below.
b) Renegotiation of the Withdrawal Agreement according to different criteria
Other MPs, whether Brexiteers, or Labour front bench, have suggested it would be possible to negotiate a better deal. This is unlikely, although if the terms of the renegotiation were completely different, and May’s red lines removed (which included no freedom of movement and hence no single market membership, no permanent customs union, no jurisdiction for the ECJ) then the EU might be willing to renegotiate, and the “backstop” would cease to be an issue as there would be no danger of a hard Irish border. Although May expressed a willingness to engage with MPs “in a constructive spirit” on Tuesday, it is unlikely she would be willing to remove these red lines. In any event, neither the hardliner Brexiteers nor Jeremy Corbyn have so far expressed any desire to deal on such terms, with none of these red lines. Other MPs, largely backbenchers, might however have different ideas, and this is considered below.
c) People’s vote/second referendum
There is a growing momentum for another referendum, and some prominent MPs and other public figures support it. Objections have been raised to it as a matter of practicalities, some of a legal and procedural nature: eg, it would take time for parliament to adopt the necessary legislation for another referendum; what would the referendum question be (and would there be two or three options, including “Remain” “Leave” and “Accept Deal”) and who would be included in the franchise. To get referendum legislation approved, Article 50 would have to be extended into May 2019 when European Parliament elections take place. So the UK would have to participate in those elections, with associated complications. None of these issues is, however, fatal to the issue of a people’s vote. The key question is whether such an option could command a majority of MPs in the House of Commons, and how it could be proposed, and the legislation tabled, if the government did not back it. (See below).
d) Revoke Article 50
If a decision were taken somehow to stop Brexit altogether, then Article 50 would have to be revoked. In December 2018, the European Court of Justice, in the Wightman case, ruled that the UK can unilaterally revoke its withdrawal notification, so the UK would not need the consent of other EU states if it decided to remain. The Court also ruled that if the UK did revoke its notification, it could remain in the EU on present terms, so it would keep the rebate and not have to join the euro, for example. The Court stated that the conditions for revocation are the same as for the original notification, meaning they must comply with the UK’s constitutional requirements.
Alas, the UK’s constitutional requirements are not always clear, even to constitutional lawyers and judges. It was confusion over these requirements that triggered the litigation in the Miller case, where the Supreme Court held that parliament must determine whether Article 50 should be triggered. Some have argued that a separate Act of Parliament would also be needed to revoke it, although not everyone agrees, some arguing the executive alone might be able to do so. Although it seems unlikely that Theresa May would rush to revoke Article 50, if there were a change of government, the position might change and this become a live issue. In any case, it is now up to the Scottish courts, to which the Wightman case will return for its next stage, to issue their opinion on how Article 50 can be revoked.
All of which, in summary, means that if the political will is there, providing the UK can work out what its constitutional requirements are (which most likely means a majority of MPs and very possibly legislation) Article 50 can be revoked.
e) Extend Article 50
This eventuality has been discussed a lot recently. Indeed, as a matter of practicalities, even if the UK definitely leaves the EU, it still seems essential. Even if parliament had voted on 15th January to accept the Withdrawal Agreement, further legislation would still be needed to implement that Agreement into domestic law. This is the condition of ratification of the Deal and specified by law in the EUWA. (Getting that Withdrawal implementation legislation through parliament might not be so easy, as the precedent of the UK joining the EEC illustrates, in which MPs voted by a large majority to join the EEC but the majority for the European Communities Act was much narrower.)
In any case, parliament has not approved the Agreement, and time is running out. If any of the options above were to be pursed, there would almost certainly have to be an extension of time. The UK is nowhere near ready for Brexit in its domestic legislation—several major statutes need to be adopted by parliament, such as the Immigration Act, not to mention hundreds of pieces of secondary legislation. A No Deal would involve a very steep cliff indeed, if relevant domestic legislation were lacking to underpin it.
However, the problem with extending Article 50 is that, unlike revoking Article 50, it cannot be done unilaterally. An extension must be unanimous—all 27 other EU states must agree to it. And would they? It might depend on the reason for extending it. But the extension should not be taken for granted.
f) No Deal, Hard Brexit
Unless some Withdrawal Agreement, ie a Deal, is accepted by parliament, or Article 50 extended or revoked, the UK will leave the EU on 29th March 2019. That is the legal situation under Article 50. For a hard Brexit to take place, or the proverbial “cliff edge,” all that has to happen is that nothing else is agreed. It does not matter if there is a majority in parliament against a No Deal option, if that majority cannot agree on another course of action and find the legal and constitutional means to implement it.
This point cannot be stressed enough. Unless MPs can find another way through, No deal by default, or the existing deal (accepted on a second vote) are the most likely outcomes.
The rest of this post considers the question of whether parliament can take back control.
Parliamentary sovereignty is legislative sovereignty
So, the question is—what alternatives might command the support of a majority of MPs? Achieving a majority for an alternative is a matter of politics. But even then, how could such a position be translated into something legally binding under current procedures? Here, legal and constitutional matters come into play.
Although the argument for Brexit was expressed in terms of “taking back control,” and regaining parliamentary sovereignty, the reality is that it is not so much parliament that was, or is, sovereign but primary legislation. And legislation is usually, under the UK system, proposed and propelled by the government. Without government support, it is very difficult for backbenchers, even with cross party support, to get legislation of their choice through parliament. This creates considerable problems for those who hope a cross party group of MPs could table legislation for a fresh referendum, or mandate the government to negotiate a different deal. Although backbenchers can introduce legislation as private members’ bills (eg the 1967 Abortion Act, originally promoted by David Steel) the right to introduce such bills is gained by ballot, and the ballots for the (government mandated) extended two year parliamentary session from 2017-2019 were held in 2017. So this looks improbable as a means for backbenchers to gain control over legislation.
Backbenchers have other means of trying to hold the government to account, but most of them lack teeth. They can schedule debates, but the government controls what is debated and in any case, no votes are taken and it is unlikely such debates could change policy. They can adopt resolutions of the House, which can be voted on as well as debated, but have no legal effect. So the best and most powerful measure really is the vote of No Confidence. But if that is lost, is there anything else that could be done, for example, to stop a hard Brexit, if as it seems, there really is a majority of MPs who oppose such a step?
An amendable motion and a new Brexit Bill?
There is a further mechanism. And forgive me, as the discussion becomes (even more!) arcane and procedure focussed at this point. But this is the level at which some of the most important actions concerning Brexit are now taking place. One means of gaining greater control is for MPs to be able to vote through amendments which might shape a future plan. And for that (forgive the tautology) they need to be able to amend something amendable. A starting point lies in s 13 EUWA, already mentioned, which requires the government to return to Westminster and state its plan of action, now the deal has been voted down. However, s13 EUWA requires such a statement to be by way of a “motion in neutral terms.” Now, the problem is that neutral motions are not usually amendable by MPs. However, on 4th December 2018, another Grieve amendment succeeded. This amendment required that the rules that state neutral motions cannot be amended should not be applied to future motions relating to Brexit. As a result, MPs may now amend a government statement on its Brexit plans after losing the Withdrawal Deal vote. (The government claims it is not bound by these amendments but they would be very hard to ignore).
So, this might be a way forward. MPs could amend the prime minister’s motion on her future plans, to require her to do something other than return her deal to the house for a second vote, or opt for a no deal Brexit. This seems to be the plan of a cross party group of MPs (Nick Boles, Oliver Letwin, Nicky Morgan, Yvette Cooper, Liz Kendall, Norman Lamb, Hilary Benn). If their amendment were accepted by the Speaker and agreed by parliament, they would propose a new Brexit bill (already drafted). This bill authorises the House of Commons Liaison committee to publish its own plan of action for a new withdrawal agreement, and if approved by MPs, require the prime minister to renegotiate along those lines. (The Liaison committee comprises 36 select committee chairs, and is itself chaired by Sarah Wollaston, a campaigner for a second referendum).
There are also reported to be attempts to rewrite Standing Order 14 of the House of Commons rules (which state that government business takes precedence), in order to allow backbenchers to table business motions and so gain some control over future Brexit policy. Grieve is also presenting two Bills to the House of Commons on Wednesday concerning second referendums. All such proposals above have come under attack from government ministers, and also been described as a “plot” in the press. But that does not mean they could not be successful. The key question is whether any of them can gain the support of a majority of MPs.
The question of whether parliament could take greater control, and perhaps prevent a no deal Brexit, captures many characteristic features of the Brexit process. On the one hand, if Brexit is about greater control for parliament over UK affairs, surely parliament should have a say in what form Brexit takes, a capacity to shape future events when the government’s deal is voted down. On the other hand, the issue also captures the arcane, opaque, confusing nature of the process, because some of the most crucial parliamentary happenings are now taking place in the margins of parliamentary affairs—over procedures, motions, amendments to motions or even to amendments, “humble addresses,” and references to standing orders. This is hardly transparent and is a territory only well known to a very few experts. But, to be fair to parliament, the cries of “unconstitutional behaviour” and ‘bias’ coming from No 10 lack persuasive force from a government which has been found in contempt of parliament, failed to publish its economic assessments of Brexit, acted in breach of the Sewel convention in adopting legislation without the Scottish Parliament’s consent, and now suffered the biggest governmental defeat in modern times, having already legislated to make its Brexit policy following such a lost vote unassailable. The fight over Brexit may be taking place in the arena of obscure parliamentary procedure, but this may be what is necessary for parliament to take back control—at least over the government.
And what about the EU?
Finally, even if MPs are able to take control of Brexit, and an EU Withdrawal (No 2) Bill were to get off the ground, we should never forget, (as indeed it is so often forgotten) how the EU might respond to any of this. An immediate and widespread EU response to the defeat on Tuesday night was the fear that the risk of a disorderly Brexit was increasing. Yet it is still very unlikely that the EU would permit any renegotiation of the Withdrawal Agreement, most certainly not if it risked a hard Irish border. As President Juncker stated yesterday: “I urge the United Kingdom to clarify its intentions as soon as possible. Time is almost up.”