I have been thinking about the right parliamentary procedure for approving the Brexit deal. It is difficult, and I think the procedure could have a major bearing on the outcome.
The Government will table a motion in Parliament approving the withdrawal agreement and framework for a future relationship. There are three main options under discussion for how Parliament votes.
The first is a Queen’s Speech-style approach. MPs can put down amendments. The Speaker selects a few. MPs vote on amendments to the motion. If no amendments succeed, they then vote on the “clean” unamended motion at the end.
There is an advantage in principle to this approach. It gives numerous factions in the House, including minorities, the opportunity to air their views and attempt to build a majority for their cause. This is how Parliament is meant to work.
But doing amendments first also has a tactical disadvantage for amenders. If MPs are only going to vote for some amendment (e.g., requesting a referendum) when staring into the abyss of “no deal”, this approach does not create those condition for that.
They won’t be staring into the abyss, because the defaults won’t be set to “no deal”. Everyone will be aware that if an amendment on (say) a referendum or (say) a customs union is not passed, the House can still just endorse the deal later and so avoid “no deal”.
For that reason, you might say this approach is quite pragmatic. It says to MPs: you can try to get a majority for something that isn’t this deal. But if there is no such majority, you still have a chance to prevent “no deal”.
The second available approach is the Government’s preference: reverse the order. Do the up-or-down vote on the clean motion first, and then if that fails, proceed to amendments.
The Government’s argument is that amendments to the motion create legal risk. They might make it unlawful for the Government to ratify the withdrawal agreement, because S13 of the EU (Withdrawal) Act says the Government can only ratify if the House resolves to “approve” the deal.
This argument is not very convincing. Several lawyers have pointed out that, if there is any legal ambiguity, it can be cleared up later in primary legislation that supersedes S13 of the EU (Withdrawal) Act.
A better argument for the Government’s approach is as follows. As I mention above, some amenders will be determined to create the “staring into the abyss” dynamic by voting “no” to the main motion whenever it comes and so focussing minds on "no deal".
If they are so determined, then this approach ensures that the “no” vote isn’t the final word on the matter. MPs immediately have the opportunity to try to form a majority for an amendment, and so express a clear preference for what comes next.
You might say, therefore, that the Government’s approach makes for a more pragmatic chronology.
The disadvantage of the Government’s approach in principle is that, if there is a majority for the Government’s deal, then minorities in the House which want something else get no opportunity to express their views.
And if there is a majority for both the clean motion and an amendment, then doing the clean motion first obviously stacks the deck in favour of the Government. Amenders never get the chance to walk through the division lobbies with their majority.
The third option is the one proposed by Oliver Letwin and Dominic Grieve. Rather than letting the House vote on amendments to the main motion, let the House vote on a series of separate non-binding motions first, and then the main motion last.
Superficially, it is attractive, because it allows everyone to express their view, while also giving the Government an opportunity to win a “clean” endorsement.
But I’m sceptical. What if there is a majority for more than one thing? What if Parliament endorses one of the first, non-binding motions (e.g. for a permanent CU, or no checks in Irish Sea, or 2nd ref), but also endorses the main motion?
In that scenario, only the final vote would have any legal effect under the EU (Withdrawal) Act. But what was to happen in practice would be very uncertain. And factions of the Commons would start claiming not only that outcome was wrong, but that it was not legitimate.
I think I lean towards the Queen's Speech-style approach over the other two. But it's difficult. There are pros and cons to each.
For more discussion of the meaningful vote, see our @instituteforgov explainer. (And NB, Colleagues @DrHannahWhite and @ThimontJack deserve credit for many of the thoughts in this thread - though only the good ones).
instituteforgovernment.org.uk/explainers/par…
/ends
instituteforgovernment.org.uk/explainers/par…
/ends
