Brexit: can Parliament control the outcome of the negotiations?

The House of Lords has debated Parliament’s role in Brexit this week, resulting in two widely publicised amendments to the EU (Withdrawal) Bill that will potentially change the role Parliament will play in the UK leaving the EU.

What amendments have been adopted, and what do they do?

First, on 18 April, which was Day 1 of Report Stage in the Lords, Lord Kerr’s amendment to clause 1 of the EU (Withdrawal) Bill passed with 348 votes for and 225 votes against – a defeat for the Government. This vote sent the bill back to the House of Commons with the following text:

  • (3) The condition in this subsection is that, by 31 October 2018, a Minister of the Crown has laid before both Houses of Parliament a statement outlining the steps taken in negotiations under Article 50(2) of the Treaty on European Union to negotiate, as part of the framework for the United Kingdom’s future relationship with the European Union, an arrangement which enables the United Kingdom to continue participating in a customs union with the European Union.

Then on 30 April, Day 4 of Report Stage, Viscount Hailsham proposed the following amendment (number 49), to precede clause 9 of the EU (Withdrawal) Bill.  It passed with 335 votes for and 244 votes against, resulting in the adoption of the following text:

  • Parliamentary approval of the outcome of negotiations with the European Union
  • (5) Her Majesty’s Government must follow any direction in relation to the negotiations under Article 50(2) of the Treaty on European Union which has been— (a) approved by a resolution of the House of Commons, and (b) subject to the consideration of a motion in the House of Lords.

If the Commons adopt these amendments what will it mean for Brexit?

If they are adopted by the Commons, these amendments mean that the Government will then need to account to Parliament for its position in the Brexit negotiations. They could also mean that the Government may need to change its negotiating position in light of Parliamentary instruction.

How significant are these amendments?

Domestically, the significance of these proposed amendments cannot be understated.  They restructure the relationship between the Government and Parliament in international relations. Historically, all international negotiations have been the sole arena of the executive under the royal prerogative. Through these amendments, Parliament could make clear that it wishes to steer the directions of these negotiations, not unlike how the European Parliament carries out its information and veto functions vis-à-vis the Council and the Commission in EU international relations. This would set a precedent significantly expanding the role Parliament currently has in relation to treaties, as set up by the Constitutional Reform and Governance Act 2010.

Can Parliament control the outcome of the Brexit negotiations?

The overall impact of these amendments is not solely dependent on their adoption by the House of Commons. While Parliament can in principle instruct the Government to pursue certain ends in the negotiations via these amendments, there is also likely to be Parliamentary pressure created by such instructions which could have an effect on the EU’s willingness to accommodate those ends.

However, reports that these amendments ‘effectively take… No Deal off table’ and that Parliament is now forcing the Government to ‘negotiate a deal which keeps Britain in the customs union’ are somewhat misleading as a result: while Parliamentary pressure to pursue a particular outcome is likely to work as leverage in negotiations with the EU, the EU’s negotiating position is not fully dictated by the UK Parliament any more than the UK’s red lines are fully dictated by the European Parliament.

In other words, while these amendments have the potential to give Parliament a significantly enhanced role in shaping the Brexit negotiations – it is a bit much to say that they would result in Parliament being able to control the outcome of the Brexit negotiations.

What’s next for the EU (Withdrawal Bill?

The last report stage day is scheduled for 8 May. Third reading, the chance to ‘tidy up’ the bill and make changes, is scheduled for 16 May.

Once Lords stages are complete all changes go to the Commons for consideration, in what is known as ‘ping pong’.