09 Jan 2019

As the House of Commons resumes its debate on the Withdrawal Agreement and Political Declaration (WA), there are strong signs of cross-party determination to avoid a "no deal" exit on 29 March 2019. On 8 January, Yvette Cooper MP and Nicky Morgan MP secured a majority of seven for their amendment to Finance (No 3) Bill. The amendment addresses a very narrow and technical set of provisions. Contrary to some media reports, it does not prevent a "no deal" Brexit, and it certainly does not raise the prospect of a Trump-style government shutdown. However, it does indicate that a significant number of MPs are prepared to employ detailed Parliamentary procedures to signal the House of Commons' opposition to a "no deal" Brexit.

That emerging consensus will come as a relief to many businesses concerned about the negative impact of a disorderly Brexit. However, the fundamental difficulty is that no combination of resolutions, humble addresses and individual amendments can alter the current legal default position, which is that the UK will cease to be a member of the EU when its Article 50 notice expires on 29 March 2019. Altering that outcome requires specific, and explicit, primary legislation.

In June 2018 the government accepted a string of amendments to the EU (Withdrawal) Bill to head off a backbench revolt and to secure royal assent. One of those amendments removed Ministerial discretion, and instead defined the "exit day" as 29 March at 11.00pm. That definition applies at strategic points throughout the Brexit legislation, and means that the UK leaves the EU with or without a deal.

The EU (Withdrawal) Act 2018 is a constitutional statute. Given that status, the courts would be extremely reluctant and highly unlikely to apply the doctrine of "implied repeal" if presented with a patchwork of amendments or resolutions that strained against a "no deal" Brexit. Parliament cannot duck or finesse the point. Repeal or overriding of the current legal position would require a clear and explicit provision in primary legislation.

The limits of amendment

Amendments to legislation must relate specifically and directly to the particular provision set out in a Bill. Once a Bill has passed its second reading, it is considered to be approved in principle. From that point, opposition amendments can only adjust or modify the existing text. The 8 January amendment neatly illustrates the point. It provides that the power to make regulations to ensure post-Brexit continuity in relation to a narrow range of taxes can only come into force if:

  • The House of Commons has approved a negotiated withdrawal agreement and a framework for the future relationship with the EU; or
  • The Prime Minister has requested an extension to the Article 50 notice period; or
  • Parliament has approved a "no deal" exit.

The amendment simply regulates the circumstances in which clause 69 of Finance (No 3) Bill may come into operation. It can do nothing more. It certainly does not, and cannot, rule out a "no deal" Brexit. Indeed, the House of Commons could pass any number of such narrowly targeted, technical, amendments without affecting the primary legal position set out in the EU (Withdrawal) Act 2018.

The limits of resolution

Since the government cut short the "meaningful vote" debate on 10 December 2018, the House of Commons has seen a succession of emergency debates and urgent questions relating to the Brexit process. No motion that might be passed as part of those debates, or in response to government statements, could overturn the legislative position. The mood of the House may be solidifying against a "no deal" Brexit, but the primary legislation remains intact unless and until specifically repealed or overridden.

The limits of agreement?

Yvette Cooper MP and Nicky Morgan MP were able to corral a narrow majority in favour of their 8 January amendment. That indicates something like an emerging consensus against a "no deal" outcome, but it certainly does not indicate a majority in favour of any alternative. Some of those within the 303 MPs voting for the amendment are likely to vote in favour of the WA. Others advocate a further referendum. Yet others seem to be holding out for a general election. Agreeing to a specific, technical, amendment does not indicate any broader agreement.

The clock ticks

The government is under significant pressure to guarantee that the "meaningful vote" will take place on 15 January 2019. If the government were to secure a majority for the WA, then Parliament's task would be to pass the necessary implementing legislation in time for 29 March 2019. The negotiated transitional period, up to 31 December 2020, would then take effect.

If the WA is rejected, then Parliament's task becomes far more difficult and complicated. It must find an alternative capable of commanding a majority in the House of Commons. That is unlikely to be a smooth or swift process. Any potentially credible "Plan B" would require primary legislation, and a key feature of that legislation would have to be a specific provision to remove the defined "exit day". That clause alone would provide the opportunity for a "last stand" by those who favour a "hard" or "no deal" Brexit. Undoubtedly, arguments over other provisions would also provide opportunities to run down the clock, leaving the current law in place, and "no deal" as the default, unless royal assent could be secured in the weeks remaining before 29 March 2019. For business, there can as yet be no guarantee that Parliament will be able to eliminate the risk of a "no deal" Brexit.