Grieve 2: an amendable motion?

On Wednesday 20 June, the House of Commons will consider an amendment agreed in the House of Lords on Monday 18 June on the ‘meaningful vote’. The amendment, known as ‘Grieve 2’, was tabled by Viscount Hailsham, and is said to reflect the compromise on which Dominic Grieve thought he had reached agreement with Ministers in the course of Thursday 14 June. ‘Grieve 2’ follows the same basic three scenario structure as the Government’s own proposed amendment (covered in this Insight) but crucially is designed to require that the Government bring forward an amendable motion to respond to each scenario, rather than an unamendable motion (as the Government’s proposed amendment would aim to do).

The structure

‘Grieve 2’ would require the Government to bring forward a motion in the Commons to seek approval for its strategy in three scenarios:

  • If the Commons decides not to pass the motion required by subsection (1)(b) to approve the agreements (the Withdrawal Agreement and the Framework for the Future EU-UK Relationship) (subsection 5A)
    This scenario could be triggered if the motion required by subsection (1)(b) is either not agreed to or passed as a resolution but in an amended form. Whether or not an amendment to the resolution is considered to be a decision not to pass will ultimately be a question of statutory interpretation. Subsection (1)(b)’s requirement that the Commons’ approval takes the form of a single resolution which approves both the Withdrawal Agreement and Framework on the Future Relationship could be read to leave little scope for any conditions to be inserted to the resolution in question.
  • 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)
  • 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)

An amendable motion

In each of the three scenarios provided for under ‘Grieve 2’, the Government would have a duty to bring forward a ‘motion for the House of Commons to approve the statement mentioned in paragraph (a)’. The statement in each case must set out how the Government ‘intends to proceed’. This approach would mean that like the proposed ‘meaningful vote’ itself (as per subsection (1)(b)), the motion brought forward in the Commons to respond to each of three scenarios would be, in principle, amendable.

This contrasts with the Government’s proposed amendment, which would require 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)’.

The Standing Orders of the House of Commons state that if the Speaker considers that a motion is expressed in ‘neutral terms’ then ‘no amendments to it may be tabled’. It appears to be the Government’s intention that the motion in each of these three scenarios could not be amended. However, even if the Government’s amendment is agreed, the House is free to agree to disapply Standing Orders. A statutory provision cannot be used to force a specific Standing Order to be used to move a particular motion.

The approach taken to the Government’s proposed amendment reflects the Government’s stated position in relation to the meaningful vote itself: the Commons has a choice to either accept or reject the agreements, but cannot force the Government to adopt a substantive change to its approach to the Brexit negotiations.

However, the provision agreed by the Commons on Tuesday 12 June, which requires that it approve both the Withdrawal Agreement and the Future Framework before the former can be ratified (subsection (1)(b)), does not attempt to provide for an unamendable motion.

Parliament’s role after the ‘meaningful vote’ and before exit day

The ultimate point of ‘Grieve 2’ is to provide a statutory guarantee that the Commons can debate, amend and vote upon a motion on the Government’s Brexit policy, in the event that either the Commons rejects the agreements, or the talks with the EU fail to produce any agreements.

In either scenario, even if neither the ‘Grieve 2’ nor the Government’s amendment were passed, the Commons would likely have to consider further domestic legislative proposals before exit day in order to give effect to the UK’s new relationship with the EU. Such bills would provide an opportunity for the Commons to express its view, and pass amendments, on the Government’s approach to Brexit. The principal difference between such opportunities and the structure proposed by both amendments is that there is no guarantee that any such bills would be introduced in time, or would relate to matters sufficiently relevant in terms of scope, to influence the Government’s position on the negotiations with the EU.

 

Jack Simson Caird is a senior library clerk at the House of Commons Library, specialising in Brexit, courts and judges.

Photo credit:  UK Parliament