Could Parliament block a no-deal? (Getty Images]
Omar Salem2 daysTuesday January 15th 2019
As things currently stand, the UK will leave the EU by operation of law at 11pm on 29 March 2019 and, if Parliament does not vote for the draft Withdrawal Agreement – Theresa May’s Brexit deal – the default will be a no-deal Brexit.
Hilary Benn, chair of the Brexit select committee, is one of many MPs to believe, however, that Parliament won’t allow no deal to happen.
But it is unlikely that the cross-party amendment to the Finance Bill – proposed by Yvette Cooper MP and passed by the Commons last week – will prevent it despite 303 MPs voting for it.
So what could actually prevent a no-deal Brexit on 29 March? Here are all the options:
1. If the deal is ratified – approved – by the UK Parliament and the European Parliament without conditions or amendments. In this case, Brexit under the terms negotiated by Mrs May proceeds.
2. If the deal is ratified by the UK Parliament with conditions or amendments. These 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 deal acting by qualified majority. It is questionable whether there is time for this, so this option may need to be combined with 3(a) below.
3. If the UK and the EU27 agree to delay 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) A general election;
c) A second referendum.
4. The UK rescinding its notification under Article 50 and remaining in the EU.
Night time falls over the Houses of Parliament (Getty Images)
The meaningful vote
Section 13 of the European Union (Withdrawal) Act 2018 requires that the deal may be ratified only if it is approved by the Commons. This has come to be known as the “meaningful vote”.
It was originally expected to take place on 11 December, but was delayed by the government and is now scheduled for 15 January. If the Government loses, it may re-table 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 draft deal, but the Lords’ approval is not required. This is expected to be debated on 14 January and Labour has laid another motion to be debated on the same date which opposes a no-deal Brexit and Mrs May’s deal.
Firstly, can the motion for a ‘meaningful vote’ be amended?
There has been a great deal of confusion about whether the resolution – the written motion that triggers the vote – should or will be amendable and, if so, how.
David Davis, when he was Brexit secretary, originally said it would be amendable and his replacement, Dominic Raab, agreed but argued that the Commons should use a procedure whereby it would vote on the resolution unamended before considering further amendments to it.
This was because the Government was concerned that an amended motion (for example approving the draft deal subject to certain conditions) would not provide legal certainty as to whether it had actually been approved or not.
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.
One possible way to decipher whether an amended motion would not prevent approval of the WA would be to amend the WA itself and then have a further vote in the Commons on the amended agreement.
Could the UK be heading towards a no-deal Brexit?(Getty Images)
Okay, so what happens if MPs vote down the deal?
If Parliament does not pass the deal, then a minister would normally have to make a statement as to how the Government will proceed within 21 days. But due to the amendment tabled by Dominic Grieve last week, which was passed by the Commons, the Government will now be required to table a motion considering the new Brexit plan within three sitting days (i.e. potentially by 21 January).
Due to another amendment, also tabled by Mr Grieve, which was passed on 4 December, MPs will have the power to amend the motion when it returns to the house (normally this is not possible).This means that MPs will have the opportunity to an express view on the approach that the government should take with the Brexit plan, if the deal is rejected.
But these amendments will not be legally binding. It has, however, been suggested that MPs might be able exert pressure on the Government if it did not act in accordance with the amended resolution through means 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.
Would that be followed by a 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.
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. And 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.
Theresa May facing the Meaningful Vote (Getty Images)
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, new legislation would be needed and the question(s) on the ballot paper would need to be agreed by Parliament. This could not be brought about just by a parliamentary motion or a change of government policy, if the government does not have a working majority.
The EU might also agree to 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, parliamentary approval or even a referendum. It seems politically unlikely, however, 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. Therefore, it may be risky for the UK to attempt revocation with the intention of pursuing a second referendum or to allow more time for negotiation.
MPs may try other parliamentary means to challenge no deal, such as by amending other legislation to make no deal difficult for the government, trying to stop the WA Bill 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.
Could Parliament block a no deal or would it happen anyway? (Getty Images)
Labour’s stance
The question is whether the 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 on Labour MPs to oppose any attempt by the government to deliver a no deal outcome.
The motion adds that if Parliament votes down the deal, 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.
https://inews.co.uk/opinion/comment/can-mps-actually-stop-a-no-deal-brexit-from-happening/
