What. A. Week.
What. A. Week.
The government has been held in contempt of Parliament. The Advocate General of ECJ has given his opinion on unilateral withdrawal from Article 50. The Commons have passed a procedural amendment which gives them more power to decide what happens if Parliament rejects the deal. Let’s take each of this week’s myriad of events in turn.
Commons showdown: one defeat after another for the Government
Tuesday felt in many ways like a seismic moment for parliamentary sovereignty. MPs from across the House demanded more control over parliamentary procedure and more scrutiny of the legal status of the Withdrawal Agreement & Political Declaration.
Defeats were coming thick and fast. In 63 minutes, MPs had voted against the government three times, and this was before Theresa May had even set her foot in the chambers.
The first two defeats were on whether government was in contempt of Parliament for not publishing the ‘final and full legal advice provided by the Attorney General to the Cabinet concerning the and the framework for the future relationship”.
The context for most of these defeats is, of course, the debacle around the government’s refusal to publish the legal advice Attorney General Geoffrey Cox had given on the Withdrawal Agreement. What outraged so many parliamentarians was that the government refused to publish the legal advice, despite the Commons passing a binding motion last month, which demanded the full text be released.
As if the drama in Westminster wasn’t enough, the Scottish Parliament has voted by 92 to 29 to formally reject the UK government’s draft Brexit deal. So has the Welsh Assembly, whose vote calls for the UK to stay in the EU’s single market and customs union. It stands as the official view of the assembly but, as is the case with the Scottish Parliament, it is not binding on the UK government.
Dominic Grieve's amendment: more control to MPs if they reject Brexit deal
MPs also voted in favour of an amendment put forward by Dominic Grieve (pro-remain Conservative MP and former Attorney General). Back in June, when the EU Withdrawal Act was being debated in Parliament, one of the most contentious issues was of course whether Parliament would get a truly ‘meaningful’ vote on the deal May brought back. After much back and forth, and amendments to amendments, MPs were persuaded to side with a government concession which now forms section 13(6) of the EU Withdrawal Act.
Under the Act, the government will have 21 days to make a written statement on how the government proposes to proceed if Parliament rejects the deal first time around. The government would then have a further 7 days to move a motion in ‘neutral terms’, allowing MPs to express their opinion on the government’s next steps. The problem with a motion in ‘neutral terms’ is that MPs couldn’t amend it - meaning they wouldn't have a meaningful voice in the process.
This is what Grieve’s amendment, passed on Tuesday, addresses. It means MPs can amend any motion relating to the withdrawal process. Should MPs reject the deal next Tuesday (which is looking likely), they now have another opportunity to set out their preferred option for what happens next. Whether MPs will indeed take the opportunity this amendment presents remains to be seen.
All eyes on next Tuesday for Commons vote on the deal
All eyes will be on next Tuesday when the real voting gets underway and finishes with the flourish of the meaningful vote. Already there are a number of amendments from all sides of the political divide but it appears that currently, the Hilary Benn amendment carries the most cross-party support. It rejects both the Governments deal and No Deal and asks the government to bring forward without delay the debate required under section 13 (6) of the EU Withdrawal Act. None of this is legally binding but if the amendment passes it is expected that Labour will bring a No Confidence motion the next day. However, to make matters more complicated, if Benn's amendment passes- the government's main motion will not be put to a vote. Brexiteers will not back Benn's amendment. Because of that the government may avoid a massive defeat, claim they have not lost the confidence of the House and gain enough breathing space to bring forward alternative plans.
It will be down to the speaker to determine which amendments to choose. Expect John Bercow to be in receipt of some early Christmas gifts over the weekend. There has been speculation following Thursday's Cabinet that May will bottle it and pull the vote (what of the fate of May if she loses by 150 or more?) but this is unlikely.
Highly recommend listening to this week's Huffpost podcast with Brigid Fowler, senior researcher from the Hansard Society, who explains the nitty gritty of parliamentary procedure around the meaningful vote. Available here.
ECJ Advocate General on revocation of the Article 50
Not only did Theresa May had to deal with three defeats in the Commons on Tuesday. It was also the day which saw the Advocate General of the European Court of Justice (ECJ) delivered a non-binding opinion on whether the UK can unilaterally extend Article 50. The advocate general has proposed that the ECJ should “declare that Article 50 allows the unilateral revocation of the notification of the intention to withdraw from the EU”. Note that the statement and the case concern revocation of notice to leave, not a delay or extension of the two-year period provided for under Article 50.
Remember that the advocate general’s opinion is not binding, but courts tend to follow them in the majority of its final rulings. Significantly, the ruling will take place on the day before the meaningful vote- i.e. 10th December.
Speaking of court cases, judgement will be handed down at 9.30am on Thursday 13th December in the case of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. Recommend watching this video from the Human Rights Consortium in Scotland about Scotland & Brexit and what this continuity bill is all about. For a refresher on how the EU Withdrawal Act sidelined the devolution settlements, read our blog here.
Government is still nowhere near ready for a No Deal Brexit
A letter from Meg Hillier, Chair of the House of Commons Public Accounts Committee to the head of HMRC notes that in their opinion (and the opinion ofmany business), there is a distinct lack of adequate preparation for No Deal: “Eleven of twelve critical systems are at risk of not being ready for day one and government is unable to predict how many will be ready for day one in the event of a no deal”. In terms of governance and front-line accountability, this paragraph in the letter is also worth noting “We also remain concerned about the government's use of non disclosure agreements to prevent businesses and stakeholders sharing details of discussions they have held with departments, hampering wider discussions on preparations”