This post will focus on the constitutional issues arising from the debate on the ‘meaningful vote’. There have been various solutions proposed in legislative amendments by the House of Lords, the Government, and by MPs – so much so that it is almost impossible to keep track. The House of Lords originally imposed requirements for a resolution of the House of Commons, coupled with a debate in the House of Lords, to impose binding negotiation instructions on the Government were, inter alia, the Withdrawal Bill to be defeated in a vote in the House of Commons. The Government proposed an alternative solution, merely requiring the Government to set out its response in a written statement. The Right Honourable Dominic Grieve MP’s amendment, (Grieve I) discussed in detail below, and here, appeared to provide for a mid-way solution between the House of Lords and the Government. Following discussions between the Solicitor General and Dominic Grieve, the House of Commons voted in favour of rejecting the proposed amendment of the House of Lords.

On the return of the Bill to the House of Lords yesterday, Lord Callanan tabled a further amendment on behalf of the Government. The new amendment proposed that, if the House of Commons rejects the Withdrawal Agreement, the Government’s statement in response will be followed by a neutral motion in the House of Commons on the Government’s statement, and a motion in the House of Lords to take note of the motion of the House of Commons. It also provides for further similar motions should no agreement be reached on withdrawal or the framework for future relationships by 21 January 2019, or should the Prime Minister announce before 21 January that no deal has been struck. This removes any possibility of the House of Commons issuing binding instructions to the Government as to future negotiations. Also, as a neutral motion, the House of Commons does not vote on whether to accept or to reject the Government’s statement and cannot propose amendments to the Government’s statement. Nor would there be the same political consequences following the loss of a neutral motion as there would be following a defeat of a motion to agree with the Government’s statement.

In response, Viscount Hailsham first proposed an amendment to restore the ability to issue binding negotiating instructions, also occurring should the Withdrawal Agreement be rejected, the Prime Minister announce that no Withdrawal Agreement has been reached before 21 January, or if no Withdrawal Agreement is reached by 21 January. Viscount Hailsham later tabled a second amendment, no longer requiring negotiation instructions. Instead, it replaced the Government’s proposed neutral motion with a motion to approve the Government’s statement. This amendment was referred to as ‘Grieve II’ by Viscount Hailsham. In tabling the amendment, Viscount Hailsham was motivated to uphold the agreement between Dominic Grieve and the Solicitor General to negotiate a solution to what may otherwise have been a defeat for the Government in the House of Commons should Grieve I have been voted on in that House. Grieve II was ultimately approved by the House of Lords.

The main difference turns on the removal of binding instructions on negotiation. The House of Commons explained that such a mandate ‘is not consistent with the constitutional roles of Her Majesty’s Government and Parliament in relation to the conduct of international relations’. Indeed, Vernon Bogdanor went one step further, describing this as a ‘constitutional absurdity’. This was repeated by Baroness Evans of Bowes Park when introducing the Government-backed amendment in the House of Lords. This blog post argues that both of these conclusions are questionable. They rely on an assessment of the normal rules of the constitution. However, we are facing a novel situation. As such, proposals which seem absurd at first glance may transpire to be desirable once these new constitutional circumstances are more clearly understood. As such, we should recognise that the new amendment on the meaningful vote – Grieve II – approved by the House of Lords provides a sensible compromise, in a situation where the House of Lords, should it have so wished, could have pushed further to protect the role of Parliament in resolving a problem with fundamental constitutional repercussions.

Constitutional Inconsistency?

The nature of the ‘constitutional inconsistency’ highlighted by the House of Commons can be explained as follows. The Crown enjoys a prerogative power to enter into and negotiate Treaties. Prerogative powers belong to and are exercised by Her Majesty’s Government, not by Parliament. Although prerogative powers are generally exercised by the Government, their exercise can be subject to control or restriction by either the development of constitutional conventions or by legislation. For example, conventions may arise surrounding the exercise of prerogative powers, giving Parliament a role in how prerogative powers are used. But, as the recent exercise of the prerogative to carry out air strikes on Syria demonstrated, conventions, even those written down in the Cabinet Manual, can change in scope as exceptions are carved out. Prerogative powers can also be abrogated, where legislation regulates the same subject matter as a prerogative power. Legislation may also restrict the scope of prerogative powers. Prerogative powers cannot change UK law or remove rights enjoyed in UK law, nor can prerogatives frustrate legislation.

This brief description explains how a provision empowering the House of Commons to provide mandatory negotiating instructions to the Government appears to contradict the separation of powers. However, it also demonstrates that it is constitutional for legislation to be enacted which modifies or limits prerogative powers. Legislation is capable of changing current constitutional arrangements. If the House of Lords original amendment had been accepted, it would have modified the way in which a particular instance of a prerogative power could have been exercised. To merely state that this modification is inconsistent with the current constitutional roles of the Government and Parliament is insufficient precisely because legislation can modify these roles when required.

Constitutional Absurdity?

The deeper issue is whether, were the legislature to place binding instructions on Parliament as to how to negotiate Treaty requirements, it would be breaching the separation of powers. Why is it the role of the executive to negotiate Treaties? We could point to the historical development of this power, originally in the hands of the Crown and now exercised by the Government on behalf of the Crown. But this merely leads to the conclusion of the previous section – negotiating Treaties may be part of the prerogative powers of the Government, but this can be restricted and modified by legislation.

A further, more sound, justification for ensuring that it is the Government acting alone when negotiating Treaties stems from the role of States in international law. It is important that States talk with one voice on the international stage. Any Government entering into negotiations on behalf of their particular State can do so more effectively when they express one clear intention, unencumbered by the nuances of multiple voices. Moreover, negotiations take place face to face in one location. The Government’s representative in the negotiation room needs to be able to respond to these negotiations as they take place. It may be impossible for any one Government official to be instructed clearly by the legislation on the response to every possible direction in which negotiations may turn. One official can respond on the spot, without having to wait further instructions and thereby potentially losing an advantage in the negotiation room.

Additionally, even if the Government were to return with a Treaty with which Parliament disagreed, there would be opportunities for Parliament to prevent the ratification of this Treaty when the Treaty is laid before Parliament and, normally, subject to the negative resolution procedure prior to its ratification under the Constitutional Reform and Governance Act 2010. Any Treaty obligations entered into by the Government would, for the most part, not have effect in UK law until legislation were enacted to incorporate these obligations into domestic law. This gives Parliament a role in determining how to incorporate Treaty obligations into domestic law.

The above describes the status quo. However, before endorsing the status quo for the process of negotiating our withdrawal from the EU, we have to ask ourselves whether we are dealing with the status quo or with novel constitutional territory. Only then can we determine whether the amendments on the meaningful vote are a constitutional absurdity when applied to the ratification of the Withdrawal Agreement (and the Framework for the Future Relationship), or to determine the response should no agreement be reached.

The UK is not currently negotiating a new Treaty in a vacuum. It is negotiating its withdrawal from one Treaty and its replacement with a new Treaty setting out a new set of arrangements between the UK and the European Union, both for the long-term future and as regards the transition from our current membership of the EU to this long-term future. Until the vote on the Withdrawal Agreement is put before Parliament, the UK Government will have been speaking with one voice on the international stage. Whether we agree with the direction of change or not, the Withdrawal Agreement will make fundamental changes to the UK’s constitution. Article 50 TEU places a strict timetable on negotiations to leave the EU, If this timetable is not met, then Article 50 makes clear that the UK leaves the EU with no Withdrawal Agreement and no Framework for a Future Relationship, unless the parties can agree an extension to the time limit. Whilst the European Union (Withdrawal) Bill, once enacted, will ensure continuity of EU-derived law in the UK, it cannot preserve continuity of those EU-derived laws which rely on reciprocal arrangements with the EU. This can only be done through Agreements between the UK and the EU which are then implemented in the UK.

The rejection of the Withdrawal Agreement so close to the end of the two-year time limit will create a constitutional crisis. The question is how best to steer the UK through such a crisis. If the Withdrawal Agreement and the Framework for the Future Relationship is not approved by a motion of the House of Commons and a motion of the House of Lords to take note of these Agreements, the Government proposes a series of written statements and neutral motions in the House of Commons. These will occur if the Withdrawal Agreement is rejected, or if no Agreement is reached by 21 January 2019. Whilst timetabled debates are an improvement on a mere written statement, the motions will provide little opportunity for the House of Commons to guide the Government. Nor will the House of Commons have any role to propose amendments to the Withdrawal Agreement under the provisions of the Constitutional Reform and Governance Act 2010, should any future agreement be reached. Moreover, section 22(1) of this Act states that the negative resolution procedure does not apply ‘ if a Minister of the Crown is of the opinion that, exceptionally, the treaty should be ratified without the requirements of that section having been met’. In this situation, the only constraint on the Minister is that he or she issue a statement explaining why a Treaty was not laid before Parliament.

When examined against this backdrop, we can see that the proposed amendments to the meaningful vote by both Viscount Hailsham and Dominic Grieve are not designed to undermine the separation of powers, but to find a means of resolving a potential constitutional crisis. The original House of Lords amendment did not transfer a blanket power to issue negotiating instructions to the Government. The ability of a resolution of the House of Commons, combined with a motion of the House of Lords, to impose negotiation instructions on the Government only arose if certain conditions were met. First, if the Withdrawal Agreement was not approved by a resolution of the House of Commons, and a motion in the House of Lords, by 30 November 2018. Second, if the Act of Parliament to implement the Withdrawal Agreement and any transitional measures did not receive royal assent by 31 January 2019, and third if no Withdrawal Agreement was reached by 28 February 2019. Viscount Hailsham’s original amendment in response to the House of Commons would have applied if no political agreement had been reached on the Withdrawal Agreement by 30 November 2018, or if no political agreement on the Withdrawal Agreement had been reached by 15 February 2019.

Grieve I would also only have arisen where certain conditions are met. Moreover, Grieve I would not have required instructions as to future negotiations as the first response. If there were no agreement to the Withdrawal Agreement, Grieve I would have required the Government to table a motion in the House of Commons seeking approval of the Government’s response. In a similar manner, Grieve I would have required approval of the House of Commons of the Government’s position in response to the failure to reach agreement on the Withdrawal Agreement by 30 November 2018. The requirement to follow directions from a resolution of the House of Commons, and a motion in the House of Lords, would have only occurred if no political agreement had been reached on the Withdrawal Agreement by 15 February 2019. Viscount Hailsham’s second amendment, Grieve II, which was supported by the House of Lords, requires a motion in the House of Commons to agree to the Government’s statement, and a motion in the House of Lords to take note of the motion of the House of Commons, in response to the failure of the House of Commons to vote in favour of the Withdrawal Agreement, or an annoucement by the Prime Minister prior to 21 January 2019 that no political agreement had been reached, or no political agreement having been reached by 21 January.

None of these amendments, therefore, impose a general requirement that the Government be instructed by the legislature on how to conduct international relations. They are a specific exception to current constitutional arrangements. Nor are they designed to usurp the separation of powers. They aim to ensure a constitutional backstop, providing for Parliamentary involvement in the resolution of the rejection of the Withdrawal Agreement, or the failure to reach an agreement, against a tight timetable, where the consequences of failing to reach an agreement are wide-ranging and give rise to considerable constitutional repercussions.

Constitutional Inconvenience?

The Government’s solution is to steer the country through any emerging constitutional crisis by force. It can push its own resolution to the crisis through Parliament, merely relying on neutral motions as a means of enforcing Governmental accountability. All whilst ensuring the Sword of Damocles that is exiting the EU with no Withdrawal Agreement hangs over the head of Parliament. The House of Lords and Dominic Grieve want Parliament to have a greater role in the resolution of this crisis, looking at other solutions that may reach an agreement, or even whether it would be wise to seek an agreement to extend the deadline for negotiations, giving the UK time to reach a better deal rather than leaving with no deal. The final version of the meaningful vote approved in the House of Lords yesterday reaches a compromise, removing what may well have been a constitutionally valid requirement of a motion including negotiation instructions and replacing it with a motion to approve the Government’s statement. Whilst this may seem inconvenient in terms of maintaining Governmental power, it may be a better means of resolving a unique constitutional conundrum and preserving the sovereignty of Parliament.

In all of these debates, a further point needs to be made. Viscount Hailsham, the Government and Dominic Grieve were not alone in proposing amendments to the meaningful vote. The Right Honourable Tom Brake MP, and others, proposed a further amendment. In particular, it included the possibility that, if the Withdrawal Agreement were rejected, a House of Commons motion could instruct the Government to hold a referendum on whether to accept the Withdrawal Agreement or to seek to revoke the Article 50 notification. In the current climate, any such resolution is automatically dismissed as an attempt to prevent Brexit. However, divorced from this context, it provides a more constitutionally sound resolution to the constitutional crisis that could arise were the Withdrawal Agreement to be rejected or no agreement reached. The people decided to seek to leave the European Union in a referendum. As such, should it not be the people who decide whether the Withdrawal Agreement, rejected by Parliament, or leaving with no deal at all, leads to the future relationship with the EU they wanted?

Maybe it is time to stop thinking about power and political deals, and to start thinking about constitutional legitimacy. Negotiating these deep constitutional waters can only be achieved effectively if we look to constitutional principles as applied to specific potential problems, divorced from historical arguments and polemical debates about the pros and cons of Brexit.

With thanks to Hayley J. Hooper for comments on an earlier draft.

Alison L. Young, Sir David Williams Chair of Public Law, University of Cambridge

(Suggested citation: A. Young, ‘European Union (Withdrawal) Bill and the Meaningful Vote: Constititutional Inconsistency or Constitutional Inconvenience?’, U.K. Const. L. Blog (20th Jun. 2018) (available at https://ukconstitutionallaw.org/))