The first “meaningful vote” on the draft EU Withdrawal Agreement took place in the House of Commons on 15 January. The Government, which had negotiated the Agreement with the EU, lost the vote, meaning that the basis for any future relationship between the UK and the EU remains unclear prior to Exit Day, which is planned for 29 March 2019.
A further series of votes on proposed amendments in the light of the Government defeat took place on 29 January. Two amendments were successful. The first, proposed by Sir Graham Brady, sets out that the ‘backstop’ arrangement covering the UK/Irish border should be “replaced with alternative arrangements to avoid a hard border”. The second, proposed by Dame Caroline Spelman, states that the UK will not leave the EU without a deal; however, it is only advisory and has no legislative force.
The Government has now proposed to revisit the terms of the Withdrawal Agreement with the EU. It is unclear at this stage as to what the outcome will be.
We consider here the possible next steps in the Brexit process.
A renegotiation of the terms of the Agreement
Given the UK Government’s proposal that it revisits the terms of the Withdrawal Agreement with the EU, the EU itself must decide whether it is prepared to re-open negotiations and amend certain aspects of the draft Agreement. Even if the EU were to agree to concessions or amendments to the existing draft Agreement, it would then need to be put again to a vote in the House of Commons, with no guarantee that a majority of MPs would vote for it even in revised form.
From the moment that Article 50 of the Treaty of Lisbon was invoked and Exit Day fixed as 29 March 2019, the default outcome has always been that, in the event that a deal with the EU is not reached by that date, the UK would nonetheless leave the EU. In those circumstances, trade would not cease between the EU and the UK, but would instead proceed on the less favourable terms agreed with the World Trade Organisation (WTO). We discuss the possible ramifications of a ‘no deal’ outcome and the structure of the WTO here.
Vote of No Confidence and General Election
The Fixed-term Parliaments Act 2011 now applies, such that the term of a sitting of Parliament is governed by statute rather than by convention. This means that, generally, all Parliaments last five years unless extraordinary circumstances were to mean otherwise. Parliament can only now be dissolved within a five year term if: (1) more than two thirds of the members of the House of Commons vote to call a General Election; (2) a motion of no confidence in the Government is passed; or (3) there is a failed vote of confidence, and in the fourteen day period thereafter a vote of confidence is not carried in favour of a new Government. The Labour Party, as official opposition party in the Commons, already tabled and lost a vote of no confidence in the Government on 16 January, but has indicated that it may try again in the coming weeks.
A second Referendum
Any second Referendum on the future relationship between the UK and EU would require primary legislation in Parliament, both to set the date for the referendum and the timeframe in which preparations for it would take place. The wording of the Referendum in question would need to be agreed, and thought would need to be given to the outcomes on which the voters would be asked to give a view: for example, would voters be asked a binary question, as in 2016, or would they be asked to endorse one of three outcomes (i.e. the UK Government’s deal, leaving the EU without a deal, or remaining the EU)? In the latter case, consideration would also need to be given how to determine the result: might voters be asked to rank their choices in order of preference, or alternatively would the choice receiving the most votes win, even if it did not gain the support of a majority of voters? Might there be more than one question?
Parliament has a role in setting the question or questions to be put to the voters under any second referendum, but the Electoral Commission must also review the question to ensure that it is not biased.
In terms of timeframe, the legislation proposing a second referendum would need to pass through Parliament and this could take some time; in the case of the 2016 Referendum, the legislation took seven months before it received Royal Assent. In the current circumstances, it might be expedited, but there may be a concern that the rigour of examining the potential questions and timeframe was not sacrificed if that were the case.
Revocation or Extension of Article 50
In December 2018, the European Court of Justice ruled that the UK could revoke its notification under Article 50 unilaterally. Revocation of Article 50, which would require the UK Parliament to pass legislation to that effect, would mean that the UK remained a member of the EU.
Extension of Article 50 is dealt with by a separate process and requires the unanimous consent of the remaining 27 members of the European Union. An extension might be granted to allow the UK Parliament to agree a way forward on the Brexit process, given the proximity of Exit Day in the absence of any Agreement with the EU. It is expected that any extension, if it were to be granted, might only allow the UK an additional few months to do so, particularly as there are imminent European Parliament Elections in May 2019, in which a UK intending to leave the EU (albeit later than envisaged) would not be expected to participate.