Brexit and the “meaningful vote”: The Final Countdown?

Next week, the House of Commons will begin five days of debate on the negotiated withdrawal agreement and the future framework for relations between the UK and the EU. The debates will conclude with what is being called “the meaningful vote”.

Those two texts, along with a “statement that political agreement had been reached” were laid before Parliament on Monday 26 November. The Government cannot ratify the withdrawal agreement until it has secured Parliamentary approval.

So what comes next? This Insight sets out what we expect to happen in the coming days in the lead-up to the Commons’ “meaningful vote” on the deal. It also explains what to look out for once the Commons has taken its decision on 11 December.

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What form will the debate take?

The Government has brought forward a Business of the House Motion to be debated immediately before the substantive debate begins on Tuesday 4 December, to set the rules of debate. This motion, if approved by the House, would provide for:

• five days of debate (4, 5, 6, 10 and 11 December)
• up to eight hours of debate on each day; and
• up to six amendments to be selected by the Speaker and to be voted on at the end of the final day of debate.

Crucially, the Government has accepted the Procedure Committee’s recommendation that the House should vote on amendments before voting on the final motion (whether or not as amended). The Government had previously expressed concerns that if the House approved an amended motion, there would be legal uncertainty as to whether it had met the approval requirements of the 2018 Act.

What will happen on the first day of the debate?

A Minister of the Crown, probably the Prime Minister, will move the following motion on the first day of debate:

That this House approves for the purposes of section 13(1)(b) of the European Union (Withdrawal) Act 2018, the negotiated withdrawal agreement laid before the House on Monday 26 November 2018 with the title ‘Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community’ and the framework for the future relationship laid before the House on Monday 26 November 2018 with the title ‘Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom’.

This motion approves both of the two negotiated documents referred to earlier. It is not sufficient, for the purposes of the Withdrawal Act, for the motion simply to approve the negotiated withdrawal agreement itself.

What happens if the Commons backs the deal?

If the Commons adopts the Government’s motion, without amendment, as a resolution, this will mean that the condition set out in section 13(1)(b) of the Withdrawal Act will have been met. The Commons ‘backs the deal’. However, this alone is not enough for the UK to ratify and implement the withdrawal agreement.

An Act of Parliament must then be passed, containing provisions to implement the withdrawal agreement. Without an Act of Parliament the UK could not, for example, deliver on the treaty commitments to honour a transition period, make payments for the financial settlement, or deliver the enhanced protection of citizens’ rights for which the withdrawal agreement provides.

If the meaningful vote passes, we would expect the Government to bring the EU (Withdrawal Agreement) Bill before Parliament. This could happen either before Christmas recess or when the House returns in January.

On the EU’s side, the treaty text of the withdrawal agreement will still need to go through the jurist-linguist translation process, and be approved formally by the European Parliament under its consent procedure. We do not expect them formally to vote on the deal until March.

And what if the Commons rejects the deal?

If the Commons votes down the motion, it will be taken to have decided not to approve the deal. We would not expect, in that scenario, that the Government would bring forward the EU (Withdrawal Agreement) Bill.

Instead, the Government must make a statement in writing by 1 January 2019 setting out:

how [it] proposes to proceed in relation to negotiations for the United Kingdom’s withdrawal from the EU under Article 50(2) of the Treaty on European Union

The Commons will then, within seven sitting days of that statement being made, have the opportunity to debate a motion to be moved by a Minister of the Crown which is:

in neutral terms, to the effect that the House of Commons has considered the matter of the statement.

A neutral motion does not as such “approve” anything, but simply notes that a debate on a subject matter took place. Normally, amendments cannot be tabled to neutral motions: the House’s Standing Orders prohibit it. The Speaker determines whether a motion is in neutral terms (and therefore whether any amendments may be tabled to it). In any case, the House could resolve to disapply Standing Order No. 24B, thereby allowing amendments to be tabled.

Whether or not the Commons adopts this motion is of no immediate legal consequence. Adopting a resolution of the House cannot – in itself – affect the operation of Article 50 in EU law, under which by default the UK leaves the EU on 29 March 2019. Nevertheless, this debate would give MPs an opportunity to express their views on the Government’s proposed contingency plans, and to seek (politically) to influence them.

The most complicated outcome for the “meaningful vote” is if Parliament adopts as a resolution an amended version of the motion. We know that up to six amendments can be selected by the Speaker and then be voted on at the end of the final day of debate. If an amended motion is adopted, the legal effect of the approval motion may be contested: some amendments might amount (effectively) to rejection, but others might not.

The Government would likely have to take advice, and express a view, as to whether any given amendment was fatal to approval. This would inform the Government’s decision whether to bring forward the EU (Withdrawal Agreement) Bill or to pursue another course of action instead.

Could the Government make a second attempt at the “meaningful vote”?

If an approval motion does not pass first time around, there is nothing in the EU (Withdrawal) Act 2018 that prevents the Government from bringing forward another approval motion, and making another attempt to get it through.

The Clerk of the House, David Natzler, explained to the Exiting the EU Committee in October that there is a “general rule against” the House being asked to decide again on the same question in the same Session. However, he went on to explain that this “general rule” can be departed from where it is the will of the House that it should happen.

Crucially, Natzler explained that this obstacle could (hypothetically) be overcome if there was either a change to the negotiated texts themselves or if the “underlying political reality” had changed in the intervening period. Ultimately, the rule is not designed, as he put it, “to obstruct the will of the House”.

Graeme Cowie is a Senior Library Clerk at the House of Commons Library, specialising in Brexit.