What could the Grieve amendment add to the Government’s amendment in lieu? How does it differ from the original Lords Amendment 19? What is going on?
Commons consideration of Lords amendments
On Tuesday 12 June the House of Commons rejected Lords Amendment 19 to the European Union (Withdrawal) Bill on the ‘meaningful vote’ (Ayes 324 and Noes 298). The amendment, tabled by Viscount Hailsham, would have given the Commons the power to pass a ‘direction in relation the negotiations’ under Article 50.
The Government objected to the constitutional propriety of granting the Commons a statutory right to direct the Government in its negotiations with the EU. The Government’s proposed ‘amendment in lieu’ (19A and B), would grant the Commons a statutory right to consent to the agreements negotiated under Article 50. This amendment in lieu means that that if consent to the agreements is refused, the Government must make a statement to Parliament within 28 days. The Government’s amendment in lieu did not contain any formal powers for the Commons to issue negotiating directions. It was agreed to without a division.
The Grieve amendment and the Government’s response
On Monday 11 June Dominic Grieve MP had tabled an amendment to the Government’s amendment in lieu. The amendment sought to provide a statutory framework that would extend the role of the Commons beyond receiving a written statement from the Government. Despite the decisions formally taken by the Commons on Tuesday, it was the Grieve amendment which dominated the debate. Ministers stated that it would form the basis of further discussions before the House of Lords debate scheduled for 18 June.
The Grieve amendment was not pressed to a vote in the Commons on 12 June. Its text has now been tabled in the Lords by Viscount Hailsham as an amendment (amendment 19L).
The Lords will consider the Commons amendments in lieu and any amendments tabled in the Lords on Monday 18 June. On that day the Lords will also consider the Government’s own response to the Grieve amendment (amendments 19C to 19L). Any remaining amendments are expected to return the Commons on Wednesday 20 June.
How does the Grieve Amendment work?
Dominic Grieve’s amendment would add a subsection to the Government’s amendment in lieu. This subsection (5A) would have bolstered the duty on the Government to make a statement ‘setting out how her Majesty’s Government proposes to proceed in relation to the negotiations’ should the Commons reject a motion to approve the agreements negotiated under Article 50. It would require the Government, within seven days of making that statement, to ‘move a motion in the House of Commons to seek approval of the Government’s approach’. This provision was designed to ensure that the Government would have a statutory duty to seek Commons approval for its response to the Commons non-approval of the original motion.
What counts as a Commons’ decision ‘not to pass’ the Article 50 agreements?
Two points are worth noting about subsection (5A). The first is what constitutes a decision ‘not to pass’ the original motion. If the Commons amended the Government’s motion to approve the agreements, would this trigger the duty in subsection (5A)? It would in all likelihood depend on any amendment’s substance, but it is worth emphasising that subsection (1)(b) of the Government’s amendment in lieu requires approval of both the Withdrawal Agreement and the Framework for the Future Relationship. Would an amendment which approved the Withdrawal Agreement but sought to impose conditions relating to either the substance or the Commons’ role in approving the Treaty on the Future Relationship count as a decision ‘not to pass’?
Are multiple approval attempts possible?
Secondly, the Government’s amendment in lieu, as agreed to by the Commons, could enable the Government to make multiple attempts at satisfying the condition in subsection (1)(b). If the Commons amended (or outright rejected) the motion to approve the agreements, it is possible that the Government could decide to make a second attempt to secure the Commons consent for the agreements. This scenario could also arise, in theory, even if no statutory provision for approval was enacted. But the same proposition cannot normally be put to the House twice in the same session. In political reality, the Government has said that non-approval in the Commons would cause the negotiations to fall.
Non-approval and the ‘no-deal scenario’
Subsections (5B) and (5C) of the Grieve Amendment in lieu differ from (5A) in that they are not contingent on the Commons making a decision not to pass the motion to approve the agreements (subsections (1)(b), (3) and (4)). Like subsections (6), (7) and (8) of Lords Amendment 19, subsections (5B) and (5C) can be triggered if either the Commons has rejected the motion to approve the agreements, or the Government has failed to bring forward a motion to approve the agreements. Subsections (5B) and (5C) are therefore designed to guarantee the Commons the chance to approve or reject the Government’s approach in the event there is a delay in the negotiations, or if the negotiations have broken down.
Subsection (5B) of the Grieve amendment can be distinguished from its equivalent in Lords Amendment 19 in that it is not framed in terms of a negotiating direction, but instead requires the Government to ‘move a motion in the House of Commons setting out how the Government intends to proceed and seeking the approval of the House for that course of action’. This provision does not appear to prejudice either the substance of the motion or how it could be amended. This subsection is triggered if no agreement has been approved or presented to the Commons by 30 November 2018.
A negotiating direction?
Subsection (5C) has proved particularly controversial, as it uses the same words as Lords Amendment 19. It would place the Government under a duty to ‘follow any direction in relation to the negotiations…which has been approved by a resolution of the House of Commons’. The logic of this more onerous statutory duty is that this power is triggered at a later stage in the process: on Friday 15 February 2019. This would be six weeks before 29 March 2019, at which point the UK would cease to be a Member State, and, under the terms of Article 50, the Treaties is expected to cease to apply. It is very difficult to predict how subsection (5C) would work in practice. That said, it differs from the subsection (5A) and (5B) in that the substance of both the statutory duty and the motion itself would have to ‘relate to the negotiations’. Whether these words would provide any practical limits on what the substance of the resolution would be a matter of interpretation.
The Government’s response to the Grieve Amendment
On 14 June, the Government tabled its own amendment in response to the Grieve amendment. This follows the Grieve amendment in two respects: it provides a legal framework for the role of the Commons in the event of Commons non-approval of the motion in subsection (1)(b) and if no motion is presented to the Commons; and it provides for three different scenarios, which are outlined further below. But in terms of its substance, the Government’s amendment takes a different approach from that in the Grieve amendment.
An unamendable motion
One of the most notable differences is that, in each of the three scenarios the amendment would provide for, the Government is placed under a duty to make arrangements for a ‘motion in neutral terms’ in the Commons to the effect that the House has ‘considered the matter in the statement mentioned in paragraph (a)’. Paragraph (a) provides that the Government should make a statement setting out how the Government ‘proposes to proceed’.
Whereas the Grieve amendment would require the Government to put forward a motion that could be amended, the Government’s approach is designed to ensure that the motion on the statement can only be approved or rejected. The Standing Orders of the House of Commons state if the Speaker considers that a motion is expressed in ‘neutral terms’ then ‘no amendments to it may be tabled’ (SO No. 24B). This approach reflects the Government’s stated position in relation to the meaningful vote itself that the Commons has a choice to accept or reject the agreements but cannot force the Government to adopt a substantive change to its approach to the negotiations on the UK’s relationship with the EU.
The Government’s amendment provides for a role for the Commons in three scenarios. Two of these are different from the scenarios set out in the Grieve amendment. The Government’s amendment provides a duty for the Government to bring forward a motion in following circumstances:
- If the Commons decides not to pass the motion required by subsection (1)(b) (subsection 5A);
- If the Prime Minister makes a statement before 21 January 2019 that no agreement in principle can be reached on the ‘substance’ of the Withdrawal Agreement and the Framework for the Future Relationship (subsection 5B); or
- If by the end of 21 January 2019, there is no agreement in principle on the ‘substance’ of the Withdrawal Agreement and the Framework for the Future Relationship (subsection 5E).
While the first scenario is the same as that in the Grieve amendment, the second and third are more precisely framed. For example, whereas under the Grieve amendment’s second scenario (5B) a motion is triggered if no agreement has been reached on the Withdrawal Agreement by 30 November, under the Government’s amendment a duty to bring forward a motion would only be triggered before 21 January if the Prime Minister made a ‘statement’ to the effect that there was no agreement on the substance of both the Withdrawal Agreement and the Framework for the Future Relationship.
The Government’s third scenario triggers a role for the Commons in the event that there is no agreement on the substance of either agreement by the end of 21 January 2019. By contrast, Grieve’s third scenario, the negotiating direction power, is triggered by the absence of a Withdrawal Agreement by 15 February 2019.
The Government’s position is that the ‘meaningful vote’ to approve the agreements, whether statutory or not, will provide the Commons with a choice between accepting the agreements or leaving without a deal (or a ‘bare-bones deal’).
The Government’s amendment to give the Commons a role in a non-approval or no agreement scenario follows this approach, and would enable the Commons only to accept or reject the relevant motion.
By contrast, the Grieve amendment would place the Government under a duty to bring forward an amendable motion for its policy on the UK’s relationship with the EU, in certain specified scenarios.
Both amendments would grant the Commons a statutory right to require the Government to seek Commons approval for its policy on the UK’s relationship with the EU in certain specified circumstances before exit day.
The potential constitutional effect of both amendments is not restricted to a non-approval scenario. If enacted each would influence the nature of the relationship between Parliament and Government from the moment they are agreed upon by both Houses until the Commons takes a decision on whether to approve the agreements.
Jack Simson Caird is a senior library clerk at the House of Commons Library, specialising in Brexit, courts and judges.