Brexit deal in Parliament: What on earth is happening? | Fieldfisher
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Brexit deal in Parliament: What on earth is happening?

Andrew Hood
It's rare that Parliamentary procedure attracts quite as much attention as it has done in the last couple of weeks. However, as the House of Commons has gone through a marathon five day debate on the

It's rare that Parliamentary procedure attracts quite as much attention as it has done in the last couple of weeks. However, as the House of Commons has gone through a marathon five day debate on the most important political issue in a generation, a number of points of process made headlines.

The Attorney General's advice and contempt of Parliament

In mid-November the Attorney General, Geoffrey Cox MP, provided what will have undoubtedly been one of many pieces of advice to the Government on the legal effects of the Protocol to the Withdrawal Agreement on the relationship between Great Britain, Northern Ireland and Republic of Ireland. Legal advice is normally protected by privilege and cannot be disclosed; while this is normally uncontested, in relation to the Attorney General it has a history of controversy, in particular in relation to the advice then Attorney General gave to Prime Minister Tony Blair on the use of force in Iraq.

However, in November Parliament had voted in favour of the advice being disclosed, which immediately brought the right of privilege into tension with the concept of Parliamentary Sovereignty. The Government initially published a summary of the legal advice, but on 4 December Parliament voted in favour of finding the Government in contempt of Parliament for refusing to publish the full advice.  This was an unprecedented situation in the UK, and in order to avoid a further crisis (such as a Parliamentary vote of no confidence in the Government), the next day the Government released the legal advice.

In summary, the advice came to the conclusion that, while the Northern Ireland backstop position was intended to be temporary until a new position was agreed, in international law it would "endure indefinitely until a superseding agreement took its place, in whole or in part". Further, it would not be possible for the UK to unilaterally revoke the UK-wide customs union created in the backstop without a subsequent mutual agreement, even if the talks to reach such an agreement had irretrievably broken down.

The Grieve amendment

On the same evening the Commons was agreeing a "business of the House motion", essentially setting aside the next five days to debate the Withdrawal Agreement before the 11 December vote. Dominic Grieve MP, a Conservative MP and former Attorney General, presented an amendment to the business being discussed by Parliament requiring that, should Parliament reject the Agreement, the Commons would be able to vote on what the next steps should be.  Whilst this adds political pressure to the Prime Minister and is slated as providing greater reassurance that the UK would not leave the EU without a deal in place, it is not clear how the Grieve amendment would work in practice.

CJEU decision

Matters came to a head on Monday morning, when the Court of Justice of the European Union (CJEU) found that the UK could unilaterally revoke its Article 50 notification.  The CJEU went further than the Opinion of its Advocate General and made clear that the UK could withdraw its notice and maintain its membership of the EU on its current terms.  This gave clarity on a further option for Parliament, namely to remain in the EU by revocation of the Article 50 notification, rather than a choice simply between the negotiated Withdrawal Agreement or a no deal Brexit.  However, the CJEU stated that such a revocation must be decided following a democratic process in accordance with national constitutional requirements.  The judgment does not confirm what form of democratic process would be required, but given that the decision to invoke Article 50 was taken by a vote in Parliament it seems likely that the same would be required to revoke and, in any event, Parliament would be required to alter the Withdrawal Act 2018 which currently sets down in legislation that the UK will leave the EU on 29 March 2019.

The meaningful vote

Until Monday afternoon, a "meaningful vote" was due to take place on Tuesday, i.e. the House of Commons confirming whether or not to adopt the Withdrawal Agreement. However following the decision of the CJEU, the Prime Minister acknowledged that such a vote was unlikely to pass and that she would continue to negotiate with the EU to amend the Withdrawal Agreement on the provisions relating to Northern Ireland only.  It is currently unclear when the new vote will take place.

What now?

With the situation in constant flux, it is unclear what the possible next steps are. If the Prime Minister is able to renegotiate the Agreement – or obtain sufficient reassurances about the operation of the backstop – it could be passed by Parliament.  That remains unlikely.  Whether the Government falls, the Prime Minister is ousted, a General Election is called. or a second referendum is held, the UK is currently due to leave the EU on 29 March 2019.  The gridlock in Parliament means the chance of the UK remaining in the EU may be increasing, but so is the chance of a 'hard Brexit' and Brexit in some way shape or form remains by far the greatest likelihood at present and time is becoming vanishingly small to prepare for Brexit.