October 30, 2017 by Paul Goldsmith
The Government has announced that the EU Withdrawal Bill will have its next appearance in Parliament on the 14th of November. The ‘pause’ that took place was necessary after the number of amendments attached to it reached over 400. Most amendments will be dealt with simply by the Government making certain assurances. Some amendments, such as those trying to commit the UK to the Single Market, are opportunistic at least, and show a misunderstanding of the Bill at worst, given it is about the process of Brexit, not the outcome.
But there is one amendment, put forward by former Attorney General Dominic Grieve, which could get through, as it reportedly has over ten Tory MPs supporting it (enough for the Government to be defeated on it if they don’t accept it). Assuming it goes through, it will fundamentally change how the final deal between the UK and the EU goes through Parliament. What follows is as layman an explanation as I can provide..
Grieve’s amendment (put down with other peoples’ names but generally regarded as having been driven by him) reads like this: “Clause 9, page 6, line 45,
by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union”. The explanatory note accompanying the note states “to require the final deal with the EU to be approved by statute passed by Parliament.”
Imagine the scenario Britain and EU manage to piece together a Brexit deal. An example of this could be, say loss of EU market access for services but tariff-free access for goods as long as Britain retains regulatory compliance with the EU – which in turn reduces the ability to strike free trade agreements with outside countries. This would probably be rather unpalatable for both sides but maybe they will agree it is better than no deal at all.
At the moment, any such deal would have to be approved by the British Parliament. The Government has agreed MPs and peers will get that vote on the deal, but they won’t be able to amend the deal nor will what they decide be binding on the Government. The Government will use a motion to approve the Withdrawal deal which will be ‘secondary legislation’, with MPs and the Lords able to examine it and vote on it but the Government having ‘delegated’ powers to act as it sees fit whatever Parliament tells them.
Grieve’s amendment changes that. It puts the deal into primary legislation – an actual act of Parliament. If this happens, then crucially the Bill can be amended. Both sides of Parliament can try to change the terms of what would have been a carefully negotiated agreement for their own ends. There would be a real danger of Parliament ‘mangling’ a deal, jeopardising the agreement at the last minute.
So, will this amendment get through? If Theresa May had the whopping majority she thought she might get in June 2017 then the Withdrawal Bill might sail through un-amended. But the current Parliamentary arithmetic suggests that this amendment should pass as it just needs 10 Conservative MPs to rebel, and one assumes the six of them who put their names to the amendment gets them near that number, and four others have apparently already indicated they will also vote for it. However, one wonders if concerted whipping might just get the Government limping over the line.
If the amendment doesn’t pass, some legal experts believe that the Supreme Court decision in the Gina Miller case could mean that the final withdrawal deal cannot legally be passed through Parliament without Primary legislation.
Now think about what this all means for Theresa May and the Brexit negotiations. Had she a decent majority, she could go to the EU and say that whatever deal they give her (which will provide significant political risk for the EU if they concede too much) will at least be approved by the British Parliament. Now, she can’t.
That said, the EU negotiators may also not be able to guarantee whatever deal they agree with the UK can get through their voting process, which sees it needing to be ratified by all 27 member states. This is why they have seemed so rigid at times, wanting the 27 states to keep agreeing and voting for an agreed position, so when the deal comes, it can be said that the negotiators have provided what they authorised, so they should vote for it as quickly as possible.
This deal is so far off that I imagine the British Government are parking the problem that it could be voted down and/or amended by Parliament in the ‘too hard right now’ box. But it can’t stay there forever.