Brexit and Parliament: deal or no deal?

Today the Prime Minister, Theresa May, set out her vision for Brexit in her Lancaster House speech. This included some clarification on Parliament’s role.

“And when it comes to Parliament, there is one other way in which I would like to provide certainty. I can confirm today that the Government will put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament, before it comes into force”.
A vote in Parliament

Theresa May announced that both Houses of Parliament will get a vote on the final Brexit agreement. This is a new commitment: under the Constitutional Reform and Governance Act 2010 (CRaGA), most treaties don’t require a vote or even a debate in Parliament. This could imply a vote on whether or not the Government should ratify a signed Brexit agreement. Or it could imply a vote on the package outside CRaGA on a resolution of both Houses.

Approval by Parliament

Either way, if Parliament endorses the final deal, and assuming it is also agreed by the EU Council and the European Parliament (and possibly the continuing Member States in their own right), then Brexit will proceed as planned.

Rejection by Parliament under the Constitutional Reform and Governance Act

Under the existing procedures applicable to all treaties, a vote against ratification in either House would mean the Government has to explain to Parliament the reasons why it nevertheless wishes to ratify. The Lords can only vote against ratification once. If the Commons votes against ratification this process could be repeated indefinitely – potentially going beyond the two-year cut-off point and resulting in the UK leaving the EU without any agreement at all. Furthermore, under the existing procedure, Parliament cannot amend the Brexit agreement(s), but can only accept or reject them.

There’s more information in the Library Briefing: Parliament’s new statutory role in ratifying treaties

Rejection by Parliament under an additional procedure

The Prime Minister’s words could also mean using a Parliamentary process outside CRaGA, in addition to the CRaGA procedures that currently apply to the ratification of treaties (including the Brexit-related treaties).  This additional procedure would not necessarily be legally binding, so the implications of a no-vote are unclear. It seems unlikely that Parliament would be able to propose amendments to the agreement under an additional procedure.

Both procedures would be separate from a vote on triggering Article 50 (which is the subject of the Miller case before the Supreme Court) or a vote on the negotiating terms (which the Government had already committed to).

“No deal for Britain is better than a bad deal for Britain”

The Prime Minister said this in the context of the other Member States possibly seeking a “punitive deal that punishes Britain and discourages other countries from taking the same path”. But what does it actually mean? The expression suggests that the Prime Minister would rather leave the EU with no withdrawal agreement – a ‘rock hard’ Brexit? – than accept one the Government didn’t like.

The UK can leave the EU with or without an agreement, but the Government – present and previous alike – have insisted they want a smooth and orderly Brexit. Leaving the EU without an agreement is unlikely to be smooth or orderly.

Extending negotiations?

If either the Government or Parliament rejected the final deal the UK could try to persuade the other 27 EU Member States to agree to more time to continue negotiating, in order to reach an acceptable agreement.

But there is no guarantee the UK would be granted more time, that a better agreement would be secured or that the UK Parliament would endorse an amended agreement –  in which case we could still be heading for a ‘rock hard’ Brexit.

Revoking the withdrawal notification?

The Government could seek an answer to the question of the revocability (reversibility) of Article 50, possibly via the EU Court of Justice.

Revoking Article 50 would mean taking back the withdrawal notification, leaving the UK in the EU.  But this would contradict the June 2016 referendum result and the Government’s insistence that “Brexit means Brexit”.

 

Picture credit: PM speech: 12 objectives for Brexit by Number 10Creative Commons Attribution 2.0 Generic (CC by 2.0)