Brexit Q&A – April 2019

On Tuesday 12 March 2019, the House of Commons again voted to reject the Government’s negotiated European Union (EU) Withdrawal Agreement, this time by 391 to 242 votes, a majority of 149. Despite several additional documents on the Northern Irish backstop secured by the Prime Minister from the EU to reduce the risk of the UK becoming “indefinitely and involuntarily detained” in the Northern Irish backstop, the Attorney General, Geoffrey Cox MP, advised the Commons that the legal risk remained.

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What happened after the EU Withdrawal Agreement vote was lost?

The Prime Minister had pledged that MPs would be allowed to vote on ruling out the prospect of a ‘no deal’ Brexit on Wednesday 13 March if they rejected her Withdrawal Agreement the previous day. If they then voted to preclude ‘no deal’ as a Brexit option, there would be a further vote on Thursday 14 March when they would ask the Prime Minister to return to Brussels to ask for an extension to Article 50, the EU treaty clause that allows Member States to leave the EU.

The wording of the original government motion on the UK leaving the UK without a deal read:
“That this House declines to approve leaving the European Union without a Withdrawal Agreement and a Framework on the Future Relationship on 29 March 2019; and notes that leaving without a deal remains the default in UK and EU law unless this House and the EU ratify an agreement.”

It is arguable that the motion points in two directions because it simultaneously rules out a no deal Brexit while acknowledging that no deal remains the default position in the absence of a negotiated agreement between the UK and EU. However, it must be borne in mind that the no deal vote would be advisory, not binding, on the Government.

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How was the government’s no deal motion amended?

There were two amendments to the motion. The first was an amendment from Labour’s Jack Dromey MP and Conservative MP Dame Caroline Spelman (who withdrew from the amendment under pressure from Government whips). In the event, another Labour signatory, Yvette Cooper MP moved the amendment which ruled out a no deal Brexit at any stage (not just on 29 March). Despite Conservative MPs being whipped to vote against the amendment, it was narrowly passed by 312 votes to 308. Although six Labour MPs voted with the Government, nine Conservative MPs backed the amendment and a further 11 did not vote.

The second amendment was the Malthouse Compromise Plan B which would have seen the UK leave the EU on 22 May, thus allowing further time to agree on a deal while avoiding the European Parliamentary Elections on 23 May. This was given to Conservative MPs as a free vote. A total of 151 MPs voted for it but 66 voted against and nearly 100 abstained, meaning that the amendment was defeated by 374 votes to 164 – a majority of 210.

A Conservative free vote on the main motion as amended by the decision to rule out no deal Brexit at any stage was rescinded. However, 17 Conservative MPs voted against the motion while 29 abstained, including Cabinet Ministers and whips. In the event, the amended motion was passed by 321 votes to 278, a majority of 43.

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Were there any amendments to the motion on extending Article 50?​

The Government motion on extending Article 50 called for an extension of time until 30 June 2019 if Parliament agreed an EU Withdrawal Agreement by 20 March. It went on to state that if Parliament had not done so, the European Council at its meeting the following day would demand a clear purpose for an Article 50 extension of any length. If the extension went beyond 30 June, the UK would need to hold elections to the European Parliament.

MPs tabled several amendments to the government’s Article 50 extension motion, four of which were accepted by the Speaker, John Bercow.

  1. An amendment tabled by Independent Group MP Dr Sarah Woolaston calling for an extension to Article 50 to hold a second EU referendum was rejected by 85 votes to 334.
  2. A motion tabled by Labour MP Hilary Benn removed the second half of the motion and proposed giving cross-party backbenchers control of Parliamentary time to ‘find a way forward that can command a majority’. The amendment stipulated that any cross-party group would need to comprise at least 25 MPs, including members of five different parties. This amendment had strong support across the political parties. Had it been passed, MPs would have been able to consider options such as a Norway-style agreement (named Common Market 2.0). In the event, the amendment was lost by just two votes, 312 to 314.
  3. A further amendment by Lucy Powell, another Labour MP, sought to limit an extension of Article 50 to 30 June 2019. This was rejected by 311 to 314 votes.
  4. A Labour frontbench motion omitted the second part of the government’s motion and ‘noted’ that the House has rejected the Prime Minister’s deal, rejected no deal and therefore ‘instructs’ the Prime Minister to seek an extension to Article 50 to ‘provide Parliamentary time’ for MPs to find a majority for a different approach. This was lost by 302 to 308 votes.

Once all four amendments had been rejected, the Government’s motion to seek an Article 50 extension of unspecified length was passed by 413 votes to 202, a majority of 211. Conservative MPs, including Ministers, were given a free vote. Only 114 voted in favour of the motion, with 190 voting against. The latter group included 42 Ministers and whips, most notably the Brexit Secretary, Stephen Barclay MP.

This vote meant that the Prime Minister would attend the European Council meeting on 21 March to ask them to grant an extension to Article 50.

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Who seized his ‘Brexit moment’ on 18 March 2019?

It had been anticipated that the Prime Minister would hold a third ‘meaningful vote’ on her EU Withdrawal Agreement early in the week beginning 18 March. However, on the afternoon of 18 March, the Speaker, John Bercow, announced to the House of Commons that MPs were “being repeatedly asked to pronounce” on the same question. He quoted from Erskine May, the guide to Parliamentary procedure, stating that by convention, the question “may not be brought forward again during the same session” and that this was a “strong and longstanding convention” dating back to 1604.

Bercow added that the convention had been confirmed again on many occasions, including in 1864, 1870, 1882, 1891 and 1912. Erskine May had, in fact, referred to no fewer than 12 such rulings up to 1920.

For any third ‘meaningful vote’ to go ahead before 29 March, MPs would need to be given a new motion containing ‘substantial changes’ to what had gone before.

At time of writing, there is debate on whether a third vote on the same question could be held during this Parliamentary session.

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What happened after the Prime Minister went to Brussels on 21 March?

On 21 March, the Prime Minister flew to the European Council meeting in Brussels to beg for extra time to pass her EU Withdrawal Agreement through Parliament. She had hoped that the UK could extend Brexit until 30 June.

After many hours of discussion, it was agreed to extend the Brexit departure date to 22 May – the eve of the European Elections – but only if she can push her deal through Parliament. A ‘no deal’ departure on 29 March was abandoned although 29 March remains the stipulated date in Article 50. An extension until 22 May would allow enough time to pass the necessary legislation. However, Brussels agreed to extend the date only to 12 April if MPs vote to reject the Prime Minister’s EU Withdrawal Agreement for a third time. If Parliament cannot agree on a deal by 12 April, the UK will have to propose an alternative way forward for EU leaders to consider – or leave with no deal on 12 April.

European Council President Donald Tusk said all Brexit options would remain open until then. If no agreement is reached by 12 April, ‘other’ Brexit options could include a longer delay which might be conditional on holding a second referendum, a general election or to negotiate a Norway-style arrangement. The UK would also have to agree to participate in the European Elections which the Prime Minister is opposed to.

Attitudes among EU leaders varied considerably. President Emmanuel Macron of France was adamant that the UK must leave with no deal if Mrs May’s Withdrawal Agreement was voted down for a third time. However, the German Chancellor, Angela Merkel, took a far softer approach, saying she would help until ‘the final hour’ to make sure that the UK did not leave the EU without a deal. However, the UK must leave the EU by

The Prime Minister will continue to seek backing for her EU Withdrawal Agreement, especially from the Democratic Unionist Party (DUP) and wavering Conservative MPs. To reverse the defeat, she must win over another 75 MPs and retain all those who previously supported her. On 18 March, 23 Conservative MPs signed a letter in the Telegraph saying that it would not be ‘moral’ to vote for the deal. Four other MPs have also hinted that they will not back it. The Prime Minister will also appeal to Labour MPs for support, especially those in Leave seats.

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What happens next?

MPs are expected to vote again on the Prime Minister’s EU Withdrawal Agreement (assuming the Speaker allows it). They will also have to vote to amend Article 50 to reflect the new leaving date(s).

If a majority of MPs vote to accept her deal, the UK will leave the EU on 22 May. If they reject it again, the UK could still leave on 12 April with no deal if MPs cannot agree on an alternative course of action. There are several alternative Brexit routes, including:

  • Parliament takes control of the Brexit process. MPs have been told that if they reject the Prime Minister’s deal, they can hold a series of "indicative" votes to establish whether a majority would support a different approach, such as the UK staying in a permanent EU Customs Union.
  • If there was majority Parliamentary support for a different Brexit option, the Prime Minister would then have to agree to support a new policy for the EU to reopen talks. There is a chance that the Prime Minister would resign if she felt she could not support this approach. Alternatively, the Parliamentary Conservative Party could put immense pressure on the Prime Minister to resign. Although the Prime Minister survived a vote of no confidence last November and there cannot be another until November 2020, in practice she is vulnerable. A new Conservative Party leader (and Prime Minister) may pursue a very different Brexit strategy.
  • The opposition Labour party could table a no confidence vote to bring down the minority government. However, this could not happen without the support of some Conservatives. It is not clear what would happen to the departure dates set by the EU.
  • The Prime Minister could ask Parliament to hold a general election or another referendum, although the latter is very unlikely. Again, it is not certain what would happen if that occurred.
  • Article 50, the two-year treaty provision that the UK invoked to leave the bloc in 2017, could be revoked by Parliament, which would delay Brexit indefinitely if not forever. However, the Prime Minister is strongly opposed to this and few, if any, politicians, believe it is acceptable to revoke Brexit without another referendum, so it is highly unlikely. A petition calling for Article 50 to be revoked has reached just over three million signatures at the time of writing.

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Sourced from London Business Matters