'The Commons rejects the Brexit deal: analysis' by Jack Simson Caird & Ellis Paterson

A number of MPs had argued, most notably the Procedure Committee of the Commons, that it was important that any amendments to the Government’s motion on the deal should be decided upon before the Commons made its decision on the deal itself. The logic of this position was that it would give MPs more leverage in any negotiations with the Government ahead of the vote. In the months preceding the publication of the deal, MPs had been keen to ensure that the meaningful vote was more than a question of deal or no deal. The Government accepted the Procedure Committee’s recommendation, and on the final day of debate on the meaningful vote, the Speaker of the House was able to select an unlimited number of amendments for a decision.

Of the 13 amendments tabled, the one which had the most chance of being approved by the Commons was the one put down by Hilary Benn, the Chair of the Commons Exiting the EU Committee. Benn’s amendment tabled sought two outcomes: to reject the prime minister’s deal, and to prevent a no-deal situation. If the Benn amendment had been selected first and approved, this would have meant that all other amendments selected, which would have been incompatible with the Benn amendment, would not be decided upon, and crucially there would have been no vote on the Government’s motion.

On morning of 15 January, Labour MP Hilary Benn withdrew his amendment. Under pressure from his party, Benn withdrew his amendment because if successful, it may have obscured the real scale of the Prime Minister’s defeat on the deal. “It is vital that we now get the clearest expression of view from the house on the government’s deal,” he explained on Twitter.

In the end, the Speaker chose four of the 13 proposed amendments:

• Amendment (a) (Jeremy Corbyn), which would reject the deal and disapprove of a no-deal.
• Amendment (k) (Ian Blackford), which would reject the deal, presented the views of the Scottish and Welsh legislatures, set out the legal implications of Article 50 revocation and call for an extension to Article 50 to prevent a no-deal scenario.
• Amendment (b) (Sir Edward Leigh), which aimed to draw attention to the Vienna Convention on the Law of Treaties and the Withdrawal Convention, calling on the Government to assure termination of the Withdrawal Agreement if the Northern Ireland backstop was to become permanent.
• Amendment (f) (John Baron), which approved the deal only if the Withdrawal Agreement text was altered to allow the UK to unilaterally leave the backstop. This was the only amendment put to a vote, and was defeated by 600 Noes to 24 Ayes.

Selecting amendments doesn’t necessarily mean that those amendments will be voted on. To do this, the MP who tabled the amendment must formally “move” the amendment. Here, Jeremy Corbyn, Ian Blackford and Sir Edward Leigh did not “move” their amendments.

Following the rejection of the Baron amendment, the Speaker put to the House the ‘original question’ in the name of the Prime Minister. The House voted against the motion by 432 to 202, resulting in a “decision not to approve the resolution” under the terms of section 13 of the EU (Withdrawal) Act 2018. The decision had two direct constitutional consequences, firstly that the Government could ratify the Withdrawal Agreement. The second is that it triggered a legal requirement that the Government should make a statement setting out its response, and that the Commons should debate that response.

Following the overwhelming rejection of the PM’s Brexit deal, Jeremy Corbyn as Leader of the Opposition tabled a statutory “vote of no confidence” in the Government, which took place on the evening of Wednesday 16 January. Theresa May won the no-confidence vote, with a majority of 19 (325 to 306). Had she lost,  under the terms of the Fixed-term Parliaments Act 2011, this would have activated a 14-day period where unless the Commons voted to say that they had confidence in the Government, a general election would have been triggered.

As a result of the controversial amendment to the Business of the House Order made on 9 January (known as the ‘Grieve’ amendment), the Government were obliged to table a motion under s.13 of the EU (Withdrawal) Act within three sitting days.

On 21 January, the PM made a statement, as required by the EU (Withdrawal) Act 2018, outlining how the Government intends to proceed after rejection of the deal. Theresa May’s statement concluded with three key changes: a more flexible and inclusive approach with Parliamentary engagement regarding the negotiations on the future relationship with the EU, more robust reassurances on workers’ rights and the environment, and further engagement with concerns over the Protocol for Ireland and Norther Ireland. 

On 29 January, the House of Commons had the opportunity to give its verdict on the Government’s response through an amendable motion on the PM’s statement. The Commons opted to reject two notable amendments, from Dominic Grieve and Yvette Cooper respectively, which would have enabled the Commons to have more control over the parliamentary timetable before exit day. The Commons accepted two amendments. The first, tabled by Caroline Spellman, sought to rule out leaving the EU without a deal. However, unlike the Cooper amendment, the Spellman amendment did not seek to provide any procedural means to enable the Commons to demand an extension. The second amendment approved, and undoubtedly the most significant, tabled by Graham Brady and supported by the Government sought to require that ’the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border’.

It is hard to know what to make of the Commons decision to approve the Brady amendment by 317 to 310. For the UK Government is it positive in that it appeared to deliver what they wanted: a clear message to take to the EU as to what would enable the deal to be approved. However, the EU and indeed the UK Government have maintained since November that changes to the Withdrawal Agreement were not possible. If the UK and EU manage to agree something, it is far from clear that this would necessarily enable a smooth and orderly process when the deal returns to the Commons.

Dr Jack Simson Caird is Senior Research Fellow in Parliaments and the Rule of Law at the Bingham Centre for the Rule of Law

Ellis Paterson is a Research Assistant at the Bingham Centre for the Rule of Law