Today the Commons finally gets the chance to give its verdict on the Government’s Brexit deal. The Commons will express its view through a series of votes: first on the amendments selected by the Speaker; and then on the Government’s motion on the deal (as amended or not). The decision to take amendments first means that the Commons process for amending the Government’s motion will take centre stage.
Which amendments and in what order?
The first thing to look out for is which amendments are selected by the Speaker. On 9 January the Commons agreed to change the rules for the debate so that the Speaker can select any number of amendments to be voted on in the Commons (originally there was a limit of six amendments). In theory, this could mean that all thirteen amendments on the order paper could be selected for decision.
The order in which the amendments are selected is as important as which of the amendments get selected. One option would be for the Commons to decide on the amendments in the order in which they are listed on the order paper.
The order in which the amendments are listed in the order paper reflects the extent to which they would change the Government’s motion on the deal. The order paper lists those amendments that would make the biggest changes to the motion first and the smallest changes last. The first amendment listed, tabled by Jeremy Corbyn, would remove all of the words from the Government’s motion and would replace it with words that reflect Labour’s Brexit position.
The last few amendments listed on the order paper add words to the end of the Government’s motion. For example, the penultimate amendment listed, tabled by Dr Andrew Murrison, adds words that would state that the Commons approves the deal subject to the Withdrawal Agreement being amended so as to include an expiry date of 31 December 2021 for the backstop.
If the Murrison amendment were selected by the Speaker to be decided upon after the Corbyn amendment, and the Commons voted for the Corbyn amendment, then logically the Murrison amendment would never be voted on. The only remaining decision for the Commons is then whether to approve the Government’s motion as amended. The key point is that the Commons cannot contradict itself by agreeing to conflicting amendments to the Government’s motion.
The Government’s motion is amended by the Commons: what next?
If the Commons amends the Government’s motion, the first question is whether the amendment is compatible with approving the deal. Under the terms of section 13 of the EU (Withdrawal) Act, the Commons must agree a resolution that approves the Withdrawal Agreement and the Framework on the Future Relationship.
Certain amendments, even if they do not express reject the deal, would, if agreed, prevent the deal being ratified. For example, Murrison’s amendment requires a change to the Withdrawal Agreement and therefore does not approve, in a substantive sense, the Withdrawal Agreement. As a result if it were approved, the Government could not ratify the deal. By contrast, the Swire amendment, which requires the Government to make certain legislative commitments on the backstop, would if approved be compatible with ratifying the Withdrawal Agreement as does not require a substantive change to the deal.
If the Commons approves an amendment that expressly rejects the deal and makes a particular demand, it will be for the Government to decide how to respond. The substance of any amendment approved would have no legal effect (other than potentially preventing ratification), it would be up to the Government to decide how to give effect to the will of the House.
According to the terms of section 13 of the EU (Withdrawal) Act, the Government has to respond to the rejection of the deal with a statement and a Commons motion on that statement. According to the Grieve amendment passed on 9 January, a motion will have to be tabled within three days. This could mean that the statement and the motion are published by Monday 21 January.
When the statement and the motion are tabled, there are two key things to watch out for.
The first is whether the Government’s statement attempts to assuage the Commons’ concerns as expressed in the amendment. For example, in relation to the Murrison amendment, the Government could outline how it intends to persuade the EU to amend the Withdrawal Agreement.
The second is the procedure proposed by the Government to be used for the Commons’ consideration of motion on that statement. The recent amendments made to the Business of the House of Motion for the meaningful vote have shown that MPs can specify the rules that apply to particular debates. The Government could seek to pre-empt any such attempts by putting forward a process that could satisfy MPs’ desire for a debate on alternative solutions to Brexit. If they don’t, MPs may well put forward their own plan for how the post-rejection process should work.
Today the UK in a Changing Europe and the Bingham Centre for the Rule of Law have published a report ‘Seven Brexit Endgame Scenarios’ that outlines the role that Parliament could play in a number of possible outcomes of the Brexit process.