No deal is the default position if the Withdrawal Agreement is rejected by Parliament – but the situation is complex and developing quickly. Omar Salem explains what would be needed for a no deal Brexit to be avoided.
As things currently stand, the UK will leave the EU by operation of law at 11pm on 29 March 2019. If Parliament does not vote for the Withdrawal Agreement (WA) the default is a no deal Brexit. However, Hilary Benn, chair of the Brexit select committee – along with many other MPs – believes that Parliament won’t allow a no deal Brexit to happen. It is also unlikely that the cross-party amendment to the Finance (No. 3) Bill proposed by Yvette Cooper MP and passed by the Commons will prevent a no deal Brexit – although 303 MPs voted for it.
So what can prevent a no deal Brexit? Here are the options:
1. The WA being ratified by the UK Parliament and the European Parliament without conditions or amendments.
2. The WA being ratified by the UK Parliament with conditions or amendments. This would then need to be agreed with the European Council, consented to by the European Parliament, and the Council of the European Union will need to conclude the Withdrawal Agreement acting by qualified majority. It is questionable whether there is sufficient time for this, so this option may need to be combined with 3(a) below.
3. The UK and the EU27 agreeing a delay in the date that the UK leaves the EU, while one of the following takes place:
a) Further negotiations on the Withdrawal Agreement or the Framework for the Future Relationship;
b) A general election;
c) A second referendum.
4. The UK rescinding its notification under Article 50 and remaining in the EU.
1 The meaningful vote
Section 13 of the European Union (Withdrawal) Act 2018 requires that the WA may be ratified only if it and the Framework for the Future Relationship have been approved by a Commons resolution. This vote has come to be known as the “meaningful vote”, although it can also be used to describe a broader set of votes (such as votes on the European Union (Withdrawal Agreement) Bill, which needs to be passed by Parliament for the UK to ratify the WA) – and also whether the vote gives Parliament a meaningful opportunity not only to reject or approve the WA but to direct the Government as to what should happen next in a vote.
This vote was originally expected to take place on 11 December, but was delayed by the government, and it is now scheduled for 15 January. But there may be a further delay to the vote – or if the government loses it, it may retable the resolution for a further vote.
The EU (Withdrawal) Act 2018 requires the government to move a motion for the Lords to take note of the WA (the Lords’ approval is not required). This is expected to be debated on 14 January and Labour has laid a motion to be debated then which opposes a no deal Brexit and the WA.
2 Amendments to the resolution for a meaningful vote
There has been a great deal of confusion about whether the resolution should or will be amendable and, if so, how. David Davis, when he was Brexit secretary, told the Brexit select committee in April 2018 that the resolution would be amendable. In October 2018 Dominic Raab, the new Brexit secretary, agreed that the motion was acceptable but argued that the Commons should use a procedure whereby it would vote on the resolution unamended before considering further amendments. This was because the government was concerned that an amended motion (e.g. approving the WA subject to certain conditions) would not provide legal certainty as to whether it had actually been ratified.
The Procedure Committee subsequently published a report recommending that the Commons should use its usual practice of voting on amendments before voting on the main motion, and the government has accepted this. The Clerk of the House has said that he does not consider that an amendment would create a new statutory obligation on the government. However, Hilary Benn, among others, believes that it would have significant political impact.
This week, the government, despite its previous misgivings about amendments, accepted an amendment from Hugo Swire to the resolution approving the WA, aimed at requiring that the Northern Ireland backstop can only last a year.
A possible solution to the problem of knowing whether an amended resolution would allow ratification of the WA would be to amend the WA, and then have a further vote in the Commons on the amended agreement.
3 What happens if MPs vote down the Withdrawal Agreement?
If Parliament does not pass the resolution, then a minister must, within 21 days, make a statement setting out how the government proposes to proceed – and set in train ‘a motion in neutral terms’ within seven Commons sitting days. However, as a result of an amendment tabled by Dominic Grieve and passed by the Commons, if the WA is voted down the government will be required to table a motion considering Brexit within three sitting days (i.e. potentially by 21 January).
The reference to “neutral terms” is meant to engage a Commons Standing Order which provides that a motion expressed in neutral terms may not be amended. It is, however, expected that the motion will be amendable, as the House passed an amendment on 4 December tabled by Dominic Grieve to that effect, stating that this Standing Order would not apply to the WA..
Because the motion is amendable MPs will have the opportunity to an express a view on the approach that the government should take if MPs reject the WA. However, the resolution (as amended if applicable) will not be legally binding. It has been suggested that MPs could exert pressure on the government if it did not act in accordance with the amended resolution, such as refusing to pay ministers’ salaries.
The government is currently aiming to only allow one amendment to be voted upon by MPs. If this happens, it will reduce the chance of a majority of MPs voting for an alternative to a no deal Brexit.
4 No confidence motion or general election
A no deal Brexit could potentially be delayed or prevented by a no confidence motion leading to a change of Prime Minister or a general election. Under the Fixed Term Parliaments Act 2011, the next general election is due to be held on 5 May 2022. The Act specifies that early elections can be held only:
• if a motion for an early general election is agreed either by at least two-thirds of the whole House or without division; or
• if a motion of no confidence in the government is passed and no alternative government is confirmed by the Commons within 14 days.
No confidence motions can also be in the Prime Minister personally, but these do not trigger the Fixed Term Parliament Act. While a majority of MPs expressing no confidence in the PM or the government is likely to be politically fatal for May, it does not necessarily mean there will be a general election leading to a delay in the Brexit date or a change in the government’s position. Any delay in the date for the UK to leave the EU to allow for a general election would need to be agreed with the EU27. Even if there is a general election, it will not necessarily lead to a government that is able to negotiate a Brexit deal that it can get through Parliament.
5 Delaying Brexit or halting Brexit
It is anticipated that if the government asked for a delay in the implementation of Article 50, the EU would agree to it – but only where the delay was to allow for a general election or a second referendum. For a second referendum to take place, legislation would be needed and this would mean that the question(s) would need to be agreed by Parliament. This could not be brought about just by a parliamentary motion, or even a change of government policy, if the government does not have a working majority.
The EU might also agree an extension where there are clear new negotiating goals, or to allow more time to prepare for a no deal Brexit – but this is less clear, and currently seems unlikely. Such an extension would require the unanimous consent of all the remaining EU27.
Alternatively, the European Court of Justice has ruled that the government could unilaterally revoke the Article 50 notification provided that “that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.”. There is debate about whether that would require legislation or parliamentary approval. However, it seems politically unlikely that a government would attempt to revoke the Article 50 notification without the approval of the Commons. The ECJ gave an example of an “abusive practice” as a withdrawing member state using successive notifications and revocations in order to improve the terms of its withdrawal from the EU.
MPs may try other parliamentary means to challenge no deal, such as by amending other legislation to make no deal difficult for the government, or opposing the statutory instruments that are needed to implement a no deal Brexit. Another tactic might be a “humble address” against a no deal Brexit. This is a type of Parliamentary resolution under which contempt proceedings may be brought if it is not complied with. Labour used this successfully to have the government’s legal advice on the Northern Ireland backstop published.
6 Conclusion
The question is whether the parliamentary arithmetic means there is a majority in Parliament not just against no deal, but for an alternative.
Key to the result will be Labour’s position. At its September 2018 conference the party passed a resolution saying that Labour MPs must vote against any Conservative deal failing to meet Labour’s “six tests” in full. It also says a no deal Brexit should be rejected as a viable option, and calls upon Labour MPs to oppose any attempt by the government to deliver a no deal outcome. The motion adds that Parliament should vote down the WA, or if talks end in no deal, a general election should take place. It then says that if Labour cannot get a general election then it must support all options remaining on the table, including campaigning for a public vote. However, even if the Labour shadow cabinet follows the resolution, it does not mean that all Labour MPs will vote the same way. Hilary Benn and many others have said that MPs will not allow a no deal Brexit. However, they have not yet explained which alternative a majority of MPs would support.
This post represents the views of the author and not those of the Brexit blog, nor the LSE.
Omar Salem is an Associate in the Financial Regulation Group of Linklaters LLP, London. He provides legal advice on complex regulatory matters (e.g. Brexit, MiFID II and the SMCR). Omar is an Executive LLM student at the LSE. He writes in a personal capacity.
The No;Deal scare is. costing real money in opportunity costs and preparations. Why are Airbus, Nissan etc and the trade unions so quiet? The voters who prefer No-Deal cannot all be pensioners.
The hate/blame of the EU appears to numb the public.
The daily mourning about a referendum or a rescinding of Art50. damaging democracy is a little disproportionate to the risk of social unrest by hungry workers who have been laid off following No-Deal.
I think you’ll find that they are all so quiet because they know the pace of the EU – GDPR took 7 years from inception to implementation. The reality is that nothing is going to change in a hurry.
It is refreshing to read a Brexit commentary which simply states the actual situation and the options available following the vote (if it takes place) next Tuesday. No attempt to say which would be best. I applaud the approach.
Thank you!
It’s intesting that another option is not considered.
My view is that we must leave, full stop.
However once having left the government has then fulfilled its obligation to the will of the people.
If there still remains a desire, then have another referendum.
Possibly to rejoin under new terms.
As for the Irish border.
It has been said recently by ex Irish minister that the fear is to be tied in for ever to Eu rules.
But if the U.K. public vote to stay out, that surely overrides the backstop.
If it doesn’t, then there is a fine example of the fact we have surrendered our democracy to a dictatorship
In which case we should just ignore the backstop!
What are they going to do? Send in the troops?
You are being disingenuous when you refer to the backstop.
This is simply a procedure to avoid the re-emergence of a hard border in the island of Ireland, no matter what future relationships are agreed between the UK and the European Union.
At present goods and people move freely over the land border between Northern Ireland and the Irish Republic without elaborate checks. If the UK goes for any kind of “hard Brexit” these checks will inevitably, no matter what technology is used, be much more extensive. This would hit Irish nationalists much more than unionists, as they are by far the more frequent crossers of the land border.
In this case, the people who would need to call in troops would be the British government, as they would be the ones upsetting the status quo, and unsettling the situation at the land border.
This article was very informative and enlightening. So many points explained in layman’s terms. So much guidance and written by someone who seems very knowledgeable, on the facts regarding Brexit. Thank you Omar for your splendid guidelines. I very much appreciate your excellent work, on a job well done.
Thank you!
How could a humble address change the law of the land plus Article 50 of the Lisbon Treaty which says we leave deal or no deal?.
We can not force the EU to give us an acceptable deal, and no future trade deal can be negotiated anyway until after we have left.
Interesting that very little is discussed concerning the long term future of the EU itself. Recent internal economic and social events indicate that all is not well in the United States of Europe. Could it be the EU is a sinking ship and we are merely taking the lifeboat? Short term it will be rough, but, long term we will survive.
The pollies are afraid of a second referendum because they think that the vote on their side could be split, but preferential voting could solve that. I’ve heard them say, ‘oh but we couldn’t change our voting system.’ They’re wrong on that, for a referendum, we could have preferential voting.
In my humble opinion, a referendum was held and leaving the EU was the result. There are always winners and losers in these situations. Remainers have argued for another referendum, largely due to the information available at the time of the vote being flawed. However, when we have a General Election and the winning Party’s manifesto is flawed (in every Government’s case!), the opposing voters don’t insist on another General Election, so why should we have another referendum!
My question is this: I would be interest to know what the legal right of the brexit voter is if it doesn’t go through?
I agree with your statement. With regard to our elected representatives calls for a second referendum ; the fact is Parliament wishes to remain at any cost and in order to do so needs to revoke Article 50. Obviously this could have an adverse effect on any MP supporting this when elections come round. Far better to have a second referendum and hope the people will decide to remain. Unlike the first referendum a decision to remain would be declared democratic and not to be ignored. As the clock winds down they will have no option but to shatter the illusion of democracy and revoke Article 50.
If brexit does not go through, brexit voters have no legal rights about brexit, as the original vote was ‘advisory only’ and the government of the day could have chosen to ignore it if they had wanted to – but would have encountered a lot of comment had they done so.
The original question was never put into a proper context – which is why there are even today multiple different interpretations as to exactly what it means..
There is almost universal agreement though that a ‘hard brexit’ – leaving without a deal, will be bad for the general populous, (maybe good if you are an investment banker), as its likely to cause 15 years of hardship..
I didn’t vote for Hilary Benn. actually did? Fed up with hearing about a government with no mandate from the people, don’t think the opposition parties have one, have they? However, they appear to think they are in power……. hmm…..Delusions of grandeur? Let’s have a general election now and see.