20 November 2018
With the possibility of a Brexit deal being agreed in Brussels this weekend, this article looks at the next steps in the process in London and Cardiff Bay.
What next after the EU summit?
The European Council has confirmed that a summit to finalise the Brexit deal will take place on 25 November, unless something ‘extraordinary’ happens. If a deal is agreed, the next step will be a vote in the House of Commons. It’s a requirement of the European Union (Withdrawal) Act 2018 (the Withdrawal Act) that there will be a motion to approve two texts: the withdrawal agreement and the framework for the future relationship agreed by the UK Government and the EU’s negotiators. If the motion is passed, the UK Government will proceed with the EU (Withdrawal Agreement) Bill. If the motion is not passed, the withdrawal agreement cannot be ratified. This process has been described as the ‘meaningful vote’.
Why is it being called a ‘meaningful’ vote?
Whether the vote is ‘meaningful’ or not relates to the ability of the House of Commons to change the deal and suggest alternatives. Under parliamentary rules, any motion to approve the UK Government’s deal would need to be a ‘substantive motion’ that can be amended. However, the UK Government has argued that an amended motion would cause legal ambiguity if it’s amended to an extent that it doesn’t reflect the deal that was negotiated, which could potentially prevent the deal from being ratified.
The UK Government therefore wants to make sure the Commons votes on its motion as originally tabled. In a letter to the Procedure Committee, Dominic Raab MP, the then Secretary of State for Exiting the EU, argued that the process for the UK Parliament’s approval of the deal needed to ‘allow for an unequivocal decision’—that is, a yes-or-no vote. He said that anything other than a straightforward approval of the deal would bring with it ‘huge uncertainty for business, consumers and citizens’.
A memorandum accompanying the letter shows how the UK Government might ensure that ‘unequivocal decision’. Under current procedures, a debate on a motion of this kind would be followed by a vote on amendments, and then a vote on the motion. However, the Government is suggesting that the unamended motion be voted on first, and that if the motion is passed, no amendments would be called. Critics of this proposed procedure state that it could prevent a vote on an amendment on which there could have been a majority.
What has the Procedure Committee said in response?
On 16 November, the Procedure Committee responded to the UK Government’s comments in its report on Motions under section 13(1) of the European Union (Withdrawal) Act 2018. In relation to the Government’s suggestion that the House of Commons should vote on the motion first, and then the amendments, the Procedure Committee disagreed, saying that amendments to the motion should be taken first. It suggested three possible models for how to proceed:
- the usual practice of the House, modified to allow the Speaker to call more than one amendment for decision at the end of debate;
- a procedure based on the existing procedure for decision on motions on Opposition days, where the House is invited to decide on the motion originally tabled before deciding on any amendments to it;
- a procedure which will allow indicative decisions on a series of freestanding motions expressing alternative views on the withdrawal agreement, prior to a vote on the statutory motion as tabled.
The committee acknowledges, however, that MPs should be able to decide how the vote happens, and therefore recommends that the House should debate which procedure ought to apply, at least two sitting days prior to the day on which the debate on ratification is to start.
What if the House of Commons rejects the Withdrawal Agreement?
If the Commons rejects the Withdrawal Agreement, section 13 of the Withdrawal Act requires the UK Government to make a statement within 21 days on how it intends to proceed in the negotiations with the EU. Within seven sitting days of that statement, a motion must be tabled.
What if there is no deal?
The Withdrawal Act sets out a process by which the UK Parliament could have a say if no withdrawal agreement is reached and/or ratified. Section 13 of the Act makes provision for three no-deal scenarios:
- If Parliament rejects the motion to approve the withdrawal agreement;
- If, before 21 January 2019, the UK Government tells Parliament that no agreement can be reached;
- If after 21 January 2019, no agreement has been reached.
In any of these scenarios, the UK Government would have to make a statement to Parliament setting out how it intends to proceed. The House of Commons must then be given an opportunity to vote on a motion to consider that statement. The House of Lords in each case must also be given an opportunity to consider a motion ‘taking note’ of the statement.
Does the Assembly have a role?
Under the Withdrawal Act, there is no official role for the Assembly in approving the outcome of the Article 50 negotiations. However, the White Paper states that the UK Government is ‘committed to working effectively with the devolved administrations’ in developing the Bill to implement the agreement in domestic law and will seek the consent of the devolved legislatures as required. It goes on to say:
The UK Government remains committed to ensuring that our exit does not take any decision-making powers away from the devolved institutions and the Bill will continue this approach, so that the existing competence of the devolved institutions will be preserved.
In terms of Assembly consent for the withdrawal agreement, the Welsh Government has confirmed that AMs will get a vote on the agreement. This vote would be symbolic, and not binding. The First Minister gave some initial comments on this to the External Affairs Committee on 17 September, stating that he foresees an Assembly vote on the withdrawal agreement, but also a vote on an LCM in relation to the Bill. He confirmed this in a letter (PDF, 269 KB) to the committee on 15 November:
I fully expect the Bill will cover areas within the devolved competence of the Welsh Government and National Assembly for Wales, and as such will require the legislative consent of the National Assembly… It is our firm intention to also hold a vote on the wider agreement reached with the EU27. It is also my intention for this vote in the National Assembly to be held before the ‘meaningful’ vote in the House of Commons.
In terms of a timetable for these votes, the First Minister could not give precise details, citing the uncertainty that remains in terms of when a deal has been reached on the withdrawal agreement.
And what’s next after a vote?
It has been noted that the timescale for passing the Withdrawal Agreement Bill after any vote will be tight; the Bill must pass before the UK leaves the EU on 29 March 2019. When Robin Walker MP, Parliamentary Under Secretary of State at the Department for Exiting the European Union, attended the External Affairs Committee on 11 October, he was asked about seeking the consent of the devolved legislatures given this tight timeline, and said:
We also recognise that there are areas of the withdrawal agreement Bill, particularly within the citizens’ rights arrangement and the functioning of the implementation period, where it will intersect with devolved competence. And, therefore, in those areas, we recognise our responsibilities under the Sewel convention…and we will, therefore, want to work very closely with the devolved administrations and, indeed, legislatures, to reflect that.
When asked whether the UK Government would be in a position to share draft clauses with the devolved institutions to ensure that there’s sufficient time to scrutinise the legislation, Robin Walker confirmed that this would be challenging:
That is something we absolutely have to consider, but, again, we do have this challenge, clearly, that the Bill itself, and the clauses of the Bill, will depend on the withdrawal agreement, and we then have a very short window between reaching that agreement and trying to bring, first of all, the meaningful vote and then the withdrawal agreement Bill to Parliament.
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Article by Peter Hill, National Assembly for Wales Research Service