One more heave needed to get proper vote at end of Brexit

by Hugo Dixon | 27.02.2017

The House of Lords seems set to pass a key amendment next week requiring a meaningful parliamentary vote at the end of the Brexit process. But it’s unclear how the government will react. Will it seek to overturn the amendment in the House of Commons, disarm potential rebellious MPs by offering concessions, accept what the Lords are proposing or even go one step further?

The democratic logic for parliament to approve any deal Theresa May agrees – or to authorise her to end negotiations with the EU if she can’t do a deal – is impeccable. Last year’s referendum didn’t give her a blank cheque to quit the EU in whatever way she deemed fit. She wasn’t even prime minister at the time.

What’s more, it is likely that we will either quit the EU with a dreadful deal or no deal at all. This is why peers, including Tory grandee Michael Heseltine, seem set to back Amendment 17 to the Brexit bill currently going through parliament.

The actual text doesn’t use the word “meaningful”, which is a slightly wishy-washy concept. Instead, it makes two key points: that ministers would need parliament’s approval to crash out of the EU without a deal; they would also need approval to finalise any deal, with that approval given before the agreement is submitted to the European Parliament for its green light.

Both points are important. If parliament thinks May is making a mistake by pulling out of talks, it should send her back to the negotiating table or ask the people whether they still wish to quit the EU. Ditto if she comes back with a bad deal.

So how will the government react? It may simply try to overturn the Lords’ amendment when it comes back to the Commons. In such a scenario, peers would probably end their rebellion then and there. The parliamentary game of “ping-pong” would just go ping, pong, ping.

However, the government might be afraid that enough Tory MPs would side with the Lords and defeat it in the Commons. If so, it might make further oral concessions to buy off the potential rebels. This is what it did when a similar amendment was debated by MPs, even though the concession had a sting in the tail.

Oral concessions have some value, but they are not as solid as guarantees written into legislation. It is, therefore, important to push the government to accept a proper amendment.

If May doesn’t agree to a proper vote at the end of the Brexit process, that isn’t necessarily the end of the story. David Hope, a former deputy president of the Supreme Court, argued in the debate in the Lords last week that legislation may already be required in two years’ time whether there is a deal or not. If the government refuses to pass such a law, then the courts could require it to – just as they did when it tried to trigger Article 50 without parliament’s approval. An opinion by five learned QCs – known somewhat inaccurately as the “Three Knights’ Opinion” – takes a similar line.

If the government was wise, it would heed this advice and amend the bill itself to provide for future legislation whatever happens at the end of the Brexit process. Such an amendment would go even further than Amendment 17 which only calls for resolutions in both houses of parliament rather than legislation.

May’s track record of trying to wriggle out of parliamentary scrutiny would suggest she is unlikely to follow this advice. But, who knows, maybe the prime minister is learning. The Sun certainly thinks so.

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    Edited by Luke Lythgoe