4What happens next?
Parliament’s role in approving the deal
104.If no Withdrawal Agreement is agreed and ratified between the UK and the EU and no extension of the Article 50 process has been agreed, the UK will leave the EU without an agreement on the terms of its withdrawal on 29 March 2019. Section 13 (1) of the European Union (Withdrawal) Act 2018 sets out the Parliamentary processes that must be completed prior to ratification of the Withdrawal Agreement, namely the Withdrawal Agreement and the framework for the future relationship must be approved by a resolution of the House of Commons and an Act of Parliament must be passed providing for the implementation of the withdrawal agreement in domestic law (the EU (Withdrawal Agreement) Bill).
105.Broadly, there are three possible outcomes from the House’s consideration of the motion to approve the Withdrawal Agreement and Political Declaration. The House could
- Approve the motion, in which case the Government would be expected to proceed with bringing the European Union (Withdrawal Agreement) Bill before Parliament;
- Approve the motion with amendments; or
- Reject the motion.
106.The House could agree an amendment to the motion to approve the Withdrawal Agreement and Political Declaration that made approval subject to certain procedural or other provisions. In his memorandum to the Procedure Committee, Rt Hon Dominic Raab MP, the then Secretary of State, suggested that amendments to the approval motion could have the effect of “inhibiting the Government’s legal ability to ratify the Withdrawal Agreement”,134 implicitly opening it up to litigation for a failure to satisfy the requirements of Section 13(1) of the EU (Withdrawal) Act if it then proceeded to ratification.
107.However, others have argued that the extent of the risk to ratification of any amended approval motion would depend on the nature of the amendment.135 An amendment that provided approval subject to changing the substance of the Withdrawal Agreement (for example relating to the financial settlement or provisions relating to the Northern Ireland backstop) could not be construed as approval of the deal. Whereas an amendment that made approval subject to procedural requirements that were within the gift of the Government to concede (such as provision for a “meaningful vote” on any agreement in respect of the future relationship), or that sought to provide a mandate for negotiations during the second stage, would be less likely to cause legal problems.
108.If the House were to reject the approval motion (or to pass an amended motion that was tantamount to rejection), a number of options would subsequently be open to it. In policy terms, the broad choices would be those set out above in paragraph 81–83. In procedural terms, Sir David Natzler, the Clerk of the House, made clear to us that the House could consider the motion again, either following a change to the Withdrawal Agreement or Political Declaration agreed with the EU or, indeed, without such a change.136 A rejection of the approval motion would not, therefore, lead irrevocably to no deal. However, under the terms of Section 13(1) of the EU (Withdrawal) Act, any motion to approve the Withdrawal Agreement and framework on the future relationship has to be moved by a Government Minister, so the initiative on any second attempt at approval lies with the Government.
109.Section 13 of the European Union (Withdrawal) Act 2018 places certain procedural requirements on the Government in the event that the House rejected the deal. A Minister would be required to make a written statement within 21 days of the vote setting out how the Government intends to proceed. Within seven sitting days of that point, a Minister must move a motion “in neutral terms”, to the effect that the House has considered the matter in the statement. The requirement for a debate in neutral terms would mean that the Speaker would be likely to regard the motion as falling within the terms of Standing Order 24B, and therefore no amendments could be tabled to it.
110.However, we have previously concluded that it is important that Parliament is able to express its view clearly in these circumstances and advise the Government on how to proceed, rather than simply “take note” of the situation.137 Any debate on a motion in neutral terms will now allow for amendments as a result of the amendment to the Business Motion agreed by the House on 4 December 2018 which set aside Standing Order No. 24B. Any resolution subsequently agreed by the House would have considerable political weight.
111.The decision of the House of Commons on whether to approve the Withdrawal Agreement and framework for the future relationship negotiated with the European Union will not simply reflect a binary choice between leaving the EU with the deal that has been negotiated or leaving without a deal. This “meaningful vote” will provide an opportunity for Parliament to express its view by potentially placing conditions on approval or giving reasons for rejection. In the event of a rejection, section 13 of the EU (Withdrawal) Act 2018 sets out requirements that the Government must make a statement within 21 days and, subsequently, schedule a debate on a motion in neutral terms, which will now be amendable.
112.Regardless of the procedures set out in section 13 of the EU (Withdrawal) Act, a range of options will remain open to the Government as to how to proceed in the event of the Withdrawal Agreement being rejected. These include bringing a motion to approve the deal, with or without further negotiation, back to the House. Only the Government is able to make this decision; it cannot be compelled by a resolution of the House to bring the approval motion back for further consideration. If the House of Commons does not approve a deal and if no agreement were made to extend the Article 50 process, the UK would leave the EU without a deal on 29 March 2019. However, there is probably no majority in Parliament for leaving with no deal and as Parliament has given itself the opportunity to consider and vote on other options, these may include the extension of Article 50.
134 Procedure Committee, Rt Hon. Dominic Raab MP memorandum
135 UK Constitutional Law Association, Robert Craig and Gavin Phillipson: could the meaningful vote end up in court?
137 Exiting the European Union Committee, Parliamentary scrutiny and approval of the Withdrawal Agreement and negotiations on a future relationship, Sixth Report of Session 2017–19 Report, HC 1240, 28 June 2018, para. 46
Published: 9 December 2018