Debating 'meaningful votes'

The Lords’ ‘meaningful vote’ amendment to the EU (Withdrawal) Bill (amendment 19):

• Puts on a statutory basis the government’s commitment to put any UK-EU Withdrawal Agreement to a parliamentary approval vote on a motion, before the equivalent vote is held in the European Parliament.

• Provides that the government may implement any Withdrawal Agreement only after passage of a further Act of Parliament.

• Obliges the government, in any of three sets of circumstances, to “follow any direction” on the Article 50 withdrawal negotiations which is given by the House of Commons in a motion. The circumstances are: that the House of Commons has not passed a motion approving a Withdrawal Agreement by end-November 2018; or that the Act implementing any Withdrawal Agreement has not achieved Royal Assent by end-January 2019; or that no Withdrawal Agreement has been reached by end-February 2019.

• Clarifies that the decisive vote on any of the motions for which the amendment provides would be that of the House of Commons, not the Lords.

Lords amendment 19 comes on top of the Commons’ own ‘meaningful vote’ amendment, passed by four votes in December, which prevents ministers from making delegated legislation under what will be the EU (Withdrawal) Act to implement any Withdrawal Agreement until a further Act of Parliament has achieved Royal Assent.

In a further amendment (amendment 20), the Lords added another condition to the making of delegated implementing legislation under the EU (Withdrawal) Act, namely that Parliament must first approve a mandate for negotiations on the future UK-EU relationship.

The government opposes both Lords amendments (19 and 20). It has tabled its own amendment to replace Lords amendment 19. The government amendment:

• Accepts the statutory footing for the Withdrawal Agreement approval motion vote, the holding of this vote before its European Parliament equivalent, and the primacy given to the Commons.

• Clarifies that the approval vote on the motion is a requirement before ratification of any Withdrawal Agreement. The Lords amendment requires the approval vote on the motion to take place before the UK “concludes” any Withdrawal Agreement. This term replicates the relevant EU provision but is not typically used in UK treaty practice (although it was being used in government language in connection with the timing of the ‘meaningful vote’ at least until September 2017, sometimes intermingled with reference to the vote taking place before any Withdrawal Agreement “comes into force”).

• States that the approval vote required before ratification of any Withdrawal Agreement will cover the framework on the future UK-EU relationship as well as the Withdrawal Agreement.

• Adds a deadline of five days for the Lords to debate the approval motion after the Commons has voted on it. This addresses concerns that the Lords’ control of their own parliamentary timetable would allow them to exercise power through delay.

• Requires passage of the further Act of Parliament before ratification of any Withdrawal Agreement, rather than before its implementation (as in the Lords amendment). The government amendment – passage of any implementing legislation before ratification – conforms to normal UK treaty practice. But the government may also be seeking to eliminate any risk that the Lords amendment would place greater constraints on its ability to undertake implementation activity before passage of the further Act than are already contained in the Commons’ original ‘meaningful vote’ amendment.

• Eliminates any requirement on the government to follow the direction of the Commons if the Withdrawal Agreement is rejected, late or non-existent. The government amendment requires the government, if the Commons rejects the Withdrawal Agreement approval motion, to make a statement within 28 days on how it proposes to proceed.

A further amendment, tabled today by former Attorney General Dominic Grieve MP, would shorten the 28 days to 21 and re-insert the requirement for a Commons motion – within seven days of any government statement following rejection of a Withdrawal Agreement, or in the case that there is no UK-EU agreement on a Withdrawal Agreement by the end of November.

However, in both of these potential motions in the Grieve amendment, the government would seek approval of its proposed approach, rather than take direction. The Grieve amendment would re-insert the Lords’ “follow any direction” language only in a third potential instance, namely if there is no agreement on a Withdrawal Agreement by 15 February 2019.

Most analysis of, and speculation about, the ‘meaningful vote’ has been from a purely Brexit perspective.

The rights that Parliament has, and at what point, could be critical to the outcome of the Brexit process.

We pointed out a year ago that parties’ and parliamentarians’ pursuit of different Brexit strategies involved efforts to structure the endgame decision-making process in their favour. (The government’s strategy is to offer Parliament a choice between ‘this deal’ and ‘Brexit with no deal’; by explicitly including the framework for the future UK-EU relationship in ‘this deal’, the government’s ‘meaningful vote’ amendment is arguably the latest example of this behaviour.) Today’s debate and votes are thus merely the latest stage in a negotiation that has been underway, through the medium of Parliament’s Brexit debates, for 18 months. Over that time, the direction of travel has been pretty much one way: at her appearance before the Liaison Committee in December 2016, the Prime Minister was unable to say that Parliament would have a vote on any Withdrawal Agreement at all.

Some of the proposals and passion surrounding the ‘meaningful vote’ reflect the internationally and historically unusual nature of the Brexit withdrawal negotiations. In the cases of most international agreements, if one party’s legislature votes it down the status quo prevails; whereas in Brexit, not achieving a ratified agreement is more akin to triggering a sunset clause on the legal underpinnings for all the UK’s interactions with the EU. The prime common concern among parliamentary opponents of the government’s ‘this deal or Brexit with no deal’ approach has appeared to be to rule out the prospect of a no-deal Brexit taking place without Parliament having a guaranteed and explicit say. (In ‘ping pong’ on the EU (Notification of Withdrawal) Bill in March 2017, the Commons rejected a less sophisticated Lords amendment than the present one, which straightforwardly required parliamentary approval for “any decision by the Prime Minister that the UK shall leave the EU without an agreement”). Meanwhile, it is owing to the implacability of the Article 50 end-date, plus the room for dispute about what a parliamentary vote against ‘this deal’ might mean, that the ‘meaningful vote’ debate brings arguments about approval and ratification of any Withdrawal Agreement (i.e. the end of the treaty-making process) together with even more controversial arguments about Parliament’s potential role in directing or mandating government behaviour in international negotiations looking forward.

Leaving the peculiarities of Brexit aside, it will be evident that these arguments have broader, constitutional, significance, and concern Parliament’s role in the making of international agreements.

And they come as the UK is about to embark on a major period of international treaty-making, as it seeks to replicate many of the effects of the hundreds of international agreements (including trade agreements) in which it currently participates by virtue of its EU membership, as well as make new agreements for itself - not least with the EU.

Parliament’s default role in UK treaty-making is weak: under the Constitutional Reform and Governance Act 2010, the House of Commons has only a negative power to delay consent to ratification.

Parliament’s real power in UK treaty-making is typically seen as deriving from the need to pass any necessary implementing legislation.

The weak treaty role of the UK Parliament reflects the executive’s prerogative powers in international affairs. Protecting these seems to have been ministers’ main concern whenever the question has arisen in Parliament’s Brexit debates of what would happen if there were no Withdrawal Agreement. Protecting the prerogative will be the chief source of resistance to the “follow any direction” provisions in Lords amendment 19 today.

But the statute book includes instances in which Parliament’s role in treaty-making and UK international action has been varied from, or more exactly specified than, the default procedures.

For example, the European Union Act 2011 specified that the UK may not ratify a treaty amending or replacing the main EU Treaties unless the new treaty is approved by Act of Parliament; and it required passage of an Act of Parliament, or an approval motion (depending on the case), before the UK might take a number of actions at EU level, or consent to a slew of specific EU decisions.

As the House of Commons Library has pointed out, by giving the House of Commons a statutory veto over ratification of any Withdrawal Agreement either the Lords ‘meaningful vote’ amendment or its would-be government replacement would already represent a constitutional innovation.

The debate and votes on the ‘meaningful vote’ will thus represent only the latest instance in which Parliament’s role in international treaty-making is subject to a negotiation to fit particular circumstances.

And, with scope to shape Parliament’s role especially with respect to future international trade agreements and future agreements with the EU, apart from the more immediate Brexit considerations MPs should use the debate on the EU (Withdrawal) Bill amendments as an opportunity to think about the powers they want, at what point in the process, and with what time and information at their disposal.