1/x Much fuss over the Lords amendment on "meaningful vote" on the Brexit withdrawal agreement last night, but I haven't seen any detailed discussion of what it entails. Here's some thoughts. First, the text (h/t @emcmillanscott for it) 
2/ The Lords amendment is better drafted and more comprehensive than the Commons "meaningful vote" amendment (remember that?), which only limited the government from going ahead with some secondary legislation. Of course the Commons still has to agree with this one.
3/ There are two parts to the Lords amendment: parliamentary control over ratifying the withdrawal agreement itself (sub-clauses 1 to 3), and the possible "directions" that Parliament might give to the government (sub-clauses 5 to 8). However, these two parts are linked.
4/ Control over ratification: the amendment requires a resolution in the Commons and a motion in the Lords before the UK govt can conclude the withdrawal agreement (ss 1). The Commons vote should come if possible before the European Parliament votes on the deal (ss 2).
5/ The govt can't *implement* the withdrawal agreement (or transitional arrangements) until there is an Act of Parliament passed (ss3). Remember the govt has anyway already agreed there will have to be an Act to implement the citizens' rights parts of the agreement at least.
6/ These subsections of the amendment shouldn't be difficult. After all, the 2010 Constitutional Reform and Governance Act codifies a degree of parliamentary control over treaty-making; and Acts of Parliament are needed for amendments to the EU Treaties as Brexiters have demanded
7/ OK, the more controversial part. Parliament will have the power to give "directions" to the executive (we'll get back to what that means) in the event that any of three conditions aren't met. Each of these conditions has a time limit.
8/ Condition 1: No Commons resolution on the withdrawal agreement by 30 Nov 2018.
Condition 2: No royal assent on the necessary Act of Parliament by 31 Jan 2019.
Condition 3: No withdrawal agreement by 28 Feb 2019 (ie the "no deal" scenario).
Condition 2: No royal assent on the necessary Act of Parliament by 31 Jan 2019.
Condition 3: No withdrawal agreement by 28 Feb 2019 (ie the "no deal" scenario).
9/ If any of the conditions aren't met, the govt "must follow any direction in relation to the negotiations" under Article 50(2) TEU approved by the Commons *and* Lords. It would be up to the Commons/Lords to decide what the content of that direction would be.
10/ So does the amendment, if it were approved by the Commons, "overturn Brexit" by itself? Certainly not, for several reasons. First of all, as I've said, it's up to the Commons/Lords to decide what direction to give. Both of them approved the Art 50 notification bill last year.
11/ Secondly, the power is to give directions *regarding the Brexit withdrawal agreement talks*. It's questionable if a motion/resolution to "cancel Brexit" meets those criteria. Surely Brexiters would litigate the point.
12/ It's equally questionable (and challengeable) whether the power extends to requiring a referendum on the Brexit terms. Referendums are creatures of Acts of Parliament. Anyway so far there's no majority for that in the Commons or Lords, since Labour abstained on the issue.
13/ The timing of a fresh referendum would be very tight indeed, unless the Art 50 date were delayed. And that brings us to another issue: the role of the EU27, which no actions of the UK parliament or government can dictate.
14/ The EU27 would have to agree unanimously to any extension of the Art 50 date, and they would also have to agree to reopen talks on the agreement and agree to a change to its content. We can't be certain at this point what they might agree to (if anything at all).
15/ Equally, even if the amendment would, as a matter of UK law, give the Commons/Lords a "cancel Brexit" (or referendum) power, and they used it, the question of whether the Art 50 notice can be withdrawn (and if so, withdrawn unconditionally) is a contested issue of EU law.
16/ Anyway, remember that the withdrawal agreement will not govern the future EU/UK relationship, but only link to a declaration which will outline a framework for such future relations.
So the amendment, while significant, isn't quite as important as the reaction to it suggests.
So the amendment, while significant, isn't quite as important as the reaction to it suggests.
17/ The idea of parliamentary control over approving the withdrawal agreement isn't unusual, and shouldn't excite anyone unless they thought that the single word "Leave" counted as approval of a 168-Article treaty (and linked declaration) that hadn't been drafted yet.
18/ The idea of parliamentary direction to the executive in treaty talks is unusual, but then the UK's relationship with the EU has always has distinct constitutional elements in terms of parliamentary scrutiny and approval of treaties and secondary legislation.
19/ And anyone who clutches pearls about constitutional impropriety while seeking executive power to amend Acts of Parliament & standing by while judicial independence, academic freedom, devolved parliaments and democratic dissent are undermined has serious consistency issues. //
