One of the most controversial issues during the passage of the European Union (Withdrawal) Act 2018 (‘EUWA’) was the so-called ‘meaningful vote’, which parliamentarians hoped would give the Commons a real say over any ‘deal’ reached by the Government with the EU (see previously on this blog posts by Alison Young and Jack Simson Caird). The provisions governing the vote are now set out exhaustively in s 13 EUWA (below).

This issue is now coming sharply into focus amongst parliamentarians and commentators as negotiations with the EU enter their final stages and attention starts to turn to the question of when and how the meaningful vote will take place. A post by Jack Simson Caird just this week considered some of the procedural issues surrounding the process of approval. This blog addresses the issue, recently alluded to by the Government, of possible legal challenges that might arise should the outcome of the approval process under section 13(1) be disputed.

The meaningful vote

The final terms of the relevant provision, s 13(1)(b) EUWA, mandate that ‘the negotiated withdrawal agreement and the framework for the future relationship’ that is agreed by the Government must be

approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown

This approval is required before any such agreement can be ratified by the Government. The whole of s 13(1) must be satisfied before ratification can take place:

13 Parliamentary approval of the outcome of negotiations with the EU

(1) The withdrawal agreement may be ratified only if—

(a) a Minister of the Crown has laid before each House of Parliament—

(i) a statement that political agreement has been reached,

(ii) a copy of the negotiated withdrawal agreement, and

(iii) a copy of the framework for the future relationship,

(b) the negotiated withdrawal agreement and the framework for the future relationship have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown,

….

(d) an Act of Parliament has been passed which contains provision for the implementation of the withdrawal agreement

The Framework for the Future Relationship (‘FFR’) is distinct from the Withdrawal Agreement (the FFR is sometimes also referred to as the ‘Political Declaration’), albeit that there will likely be some cross-referencing between them. The Withdrawal Agreement concerns the ‘divorce deal’ covering, most importantly, citizens’ rights, the ‘divorce bill’, and the issue of the Northern Ireland border. The FFR is specified in Article 50(2) of the Treaty on the European Union and concerns the long-term relationship the UK will have with the EU following withdrawal. To take legal form it will need to be turned into a treaty, which will have to be ratified by both the UK and the EU at a later point. Assuming there is a transition period, the treaty will only become applicable at the end of that period.

The procedure to approve the Withdrawal Agreement and FFR

In a letter to the Procedure Committee dated 10 October 2018, Dominic Raab, the Brexit Secretary, speaking of the motion in s 13(1), said:

the procedure through which [the motion] is voted upon must allow for an unequivocal decision…Anything other than a straightforward approval of the deal will bring with it huge uncertainty for business, consumers and citizens.

The Government sets out its reasons for this view in a memorandum published on 10 October alongside the above letter. The memorandum raises concerns about the possibility of litigation; this may partly arise from the aftershocks of the well-known case brought by Gina Miller, which resulted in the Supreme Court finding that the Government could not lawfully use the royal prerogative to ‘trigger’ the Article 50 process. Instead, specific legislative authorisation was required.

In this instance, if there was reason to believe that the Withdrawal Agreement and Framework had not been properly approved by the Commons under s 13(1)(b) EUWA, then a court could be asked to issue a declaration that the Government could not lawfully ratify the Withdrawal Agreement. This would be because the s 13(1) conditions required to render such ratification lawful had not been satisfied. Alternatively, it is possible that a challenge could be brought post-ratification but before exit day, asking the court to declare that ratification had been unlawful, or even, conceivably, seeking a quashing order.

The key point is that, regardless of the eventual success or otherwise of such litigation, the existence of live proceedings might impede or delay the process of ratification. In this respect, it must be stressed that if the Withdrawal Agreement is not ratified by 29^th March 2019, the treaties cease to apply to the UK at 11pm GMT that day and, with no Withdrawal Agreement in place, the UK would leave the EU in any event. Moreover, in such circumstances, any transition period specified by the Agreement would not be implemented. Hence in relation to all our scenarios below, whether a case was considered to be sufficiently arguable to be given permission to proceed might be almost as important as whether it was ultimately successful.

It was reported last week that Dominic Raab believes the latest point at which the Government would have to commit to preparing for a ‘no deal’ exit is November. The following scenario therefore arises: the Government could reach an Agreement with the EU in November, and a form of approval process then takes place in Parliament, which the Government believed satisfied s 13. The Government would then plan for exit – presumably to the transition period – on that basis. If it was then faced with a legal challenge that prevented or delayed ratification, on the basis that s 13 had not been properly followed, its planning for Brexit would be seriously disrupted.

‘Questioning proceedings’ in the House of Commons

The Government’s memorandum explicitly highlights ‘litigation risks’ following from anything other than unequivocal approval under s 13(1). It states that these could include the risk of:

the courts encroaching on the privileges of Parliament by questioning proceedings in the House

This statement however fails to have regard to one of the most important provisions of UK constitutional law. Article IX of the Bill of Rights 1689, in terms, prohibits the courts from questioning such proceedings:

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

Detailed consideration of the role that Article IX might play in any possible legal challenge would require another blog – particularly as many consider there is a broader principle of Parliament’s exclusive cognisance over its own proceedings. For present purposes we note merely that some of the scenarios below raise a greater possibility of Article IX coming into play than others.

There is also the possibility that, even if a court were to find that Article IX does not strictly apply to a particular situation, it could consider a dispute as to whether the Commons had approved the Government’s policy to be predominantly a political question, on which it was inappropriate for the court to intervene. Given the intense political controversy surrounding Brexit, the courts would be most reluctant to get involved in any such dispute; however, in some of the scenarios considered below it could be unavoidable.

How could litigation happen?

The power to ratify treaties vests in the Crown under the royal prerogative. Any Withdrawal Agreement with the EU would have to take the form of a treaty. Miller confirmed previous case law such as Laker Airways and Fire Brigades Union, which stated that the prerogative cannot be exercised in a way that frustrates the intention of Parliament. This follows from one of the most basic aspects of parliamentary sovereignty – that statute ranks higher than other sources of law, including the prerogative. Hence the prerogative may not be used to do something that contradicts what statute has laid down. As the majority in Miller stated:

ministers cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual operation. [51]

It follows therefore that the Government cannot exercise the prerogative to ratify any treaty agreed with the EU where to do so would not just frustrate, but flatly defy the will of parliament in s 13(1)(b) that such ratification may not occur unless there has been ‘approval’ of the requisite statutory motion by the House of Commons.

What does ‘approved’ mean?

Many might think that there is no need to be concerned about this issue because, even if the relevant motion is amended by MPs, any amended motion approved would still satisfy the requirements of the Act. Alternatively, it might be thought, contra the Government’s memorandum, that Article IX would simply block any possible legal challenge in this area. As we argue below, this is not necessarily the case.

The Government’s Memorandum hints at a number of ways in which a court might consider the Withdrawal Agreement not to have been ‘approved’ (for more detailed analysis see The Brexit Endgame paper esp. pp. 12-14). In what follows, we suggest six scenarios in which litigation could conceivably be brought against the Government on this matter. In each case we assess the risk of successful litigation, ranked from highest to lowest. We define “successful” as “an arguable case with a realistic prospect of success”.

Scenario 1 – The resolution is voted down

We start with the most straightforward scenario, in which the s 13(1) EUWA motion is simply voted down in the Commons. In such circumstances, s 13(1)(b) has plainly not been satisfied. Any attempt to ratify the Withdrawal Agreement would therefore be specifically barred by statute (unless alternative legislative provision were made to enable ratification notwithstanding s 13 EUWA). It might be suggested that a decision to ratify a treaty is traditionally taken to be one of the areas excluded from traditional review under GCHQ. However, as with Miller, the challenge would be directed not at the rationality of the decision to ratify, but the legal power to do so.

Hearing the case would require a court to establish that the requisite s 13 motion had not been approved by the Commons. However, this conclusion would appear on the face of the record in the House of Commons Votes and Proceedings and its Journal, as well as in Hansard, and a court would simply take note of what had happened in Parliament. There would be no suggestion of ‘questioning’ or ‘impeaching’ proceedings in parliament contrary to Article IX.

An analogy could be drawn with a challenge to delegated legislation. Powers to make statutory instruments, for example, almost invariably lay down that Parliament shall approve the SI, by either the positive or negative approval procedure. If Parliament negatived an SI or failed to approve it (where the statute required positive approval), the courts would find it to be, for that reason, invalid. It is true that courts in that situation are considering the vires of (delegated) legislation, which is not the case in our scenario. However, the essence of the judicial task would be the same in both cases: determining whether a statutory condition mandating a particular procedure in Parliament has clearly been satisfied.

Hence in this situation, the proposition that such litigation would entail a breach of Article IX of the Bill of Rights would seem likely to fail.

It is worth noting, however, that the legislation does not state that the Government must secure such a resolution on its first attempt. Hence, there is nothing in the statute to stop the Government, following the rejection of a s 13(1) motion, from engaging in a period of intensive lobbying of MPs and then trying again. The remainder of s 13 does not appear to preclude such a course of action, although there would be difficulties in terms of parliament’s internal rules (see further The Brexit Endgame, p. 13).

Litigation risk: Extremely high

Scenario 2 – An amendment to a point of substance in the Withdrawal Agreement

If the motion proposed by the minister is amended to alter, contradict or require removal of a substantive part of the agreement between the Government and the EU, it is difficult to see how the Withdrawal Agreement could be said to have been ‘approved’. Thus if, for example, an amendment was carried approving the Agreement, subject to a condition that the maximum payment by the Government to the EU under the Agreement be limited to £20bn rather than the agreed higher figure (of say £39bn), then even if the amended motion were approved, it could not then be stated unequivocally that the Withdrawal Agreement had been ‘approved’ by the House of Commons. Putting the matter at its lowest, there would be a strongly arguable case that it had not been approved.

Litigation risk: Very high

Scenario 3 – Procedural hurdle to approval of Withdrawal Agreement inserted

In this scenario, rather than an amendment imposing a substantive restriction on the Withdrawal Agreement, a procedural hurdle is imposed: for example, an amendment might be passed, stating that the Withdrawal Agreement must also be approved by a referendum, or by some further vote in the House following a Report by a specified Select Committee. In such circumstances it could be claimed that the Agreement had not been clearly ‘approved’. This is because the need to satisfy a further conditional requirement would seriously undermine any claim that the Commons had clearly approved the Agreement via the requisite s 13 motion.

On the other hand, it could be argued that section 13 lays down as a matter of law the necessary and sufficient conditions for the approval of the Withdrawal Agreement and FFR. Were an amendment to be passed specifying a further procedural condition, such as a referendum, this would not have the force of law. Hence a court might treat it as expressing a mere political aspiration, which did not undermine the approval given under section 13 in legal terms. (We are indebted to Paul Craig for this point).

Litigation risk: High

Scenario 4 – An amendment ‘calls on’ the Government to ‘seek changes’ to the Withdrawal Agreement

In this scenario, an amendment is passed that approves the Withdrawal Agreement but also ‘calls on the Government’ to use its ‘best efforts’ to (for example) negotiate an alternative ‘backstop’ to the Northern Ireland border issue, ‘relying on innovative technology’. The legal implications of this scenario would be much less clear. Much might depend on the precise wording of the amendment and which issue it addressed. In approving the motion and only ‘calling on’ the Government to use ‘best efforts’ to change it, the House of Commons could be said to have reluctantly approved the Agreement. This approval, notwithstanding the expression of a wish that it be changed, might be seen to have satisfied the requirements of s 13.

On the other hand, the very fact that Parliament was calling on the Government to seek a change to part of the Agreement could be argued to show lack of approval for it as it stood. In this scenario, however, a court would probably be reluctant to entertain any challenge that required it to ‘construe’ the meaning of the Commons resolution approving the motion and elucidate Parliament’s intention from it, lest this be seen as ‘questioning proceedings in Parliament,’ contrary to Article IX. This is not least because courts generally have no role in construing anything Parliament does, other than legislation.

Litigation risk: Moderate

Scenario 5 – Procedural hurdle inserted re approval of Treaty implementing the Future Framework

In this scenario, an amendment is passed that imposes further procedural requirements, such as a referendum, before the eventual Treaty that will instantiate the ‘framework for the future relationship’ (‘FFR’) is brought forward for ratification. In our view such an amendment would not prevent s 13(1) being satisfied for two reasons.

First, section 13 only specifies that the FFR must be approved – it says nothing about the later Treaty that will implement that FFR. Second, the Treaty implementing the FFR will in any event be subject to the negative approval procedure under the procedures set out in the Constitutional Reform and Governance Act 2010, Part 2 and hence approval of the FFR under section 13 cannot in any event guarantee parliamentary acceptance of the Treaty implementing it.

Litigation risk: Moderate to Low

Scenario 6 – An amendment ‘calls on’ the Government to ‘seek’ an outcome when negotiating the treaty governing the future relationship.

We consider that this scenario raises much less risk than those above, but not zero risk. On the one hand, the Treaty in question will be a matter for negotiation anyway, so giving directions to the Government to seek a particular outcome during those negotiations would not seem problematic.

On the other hand, if the direction given plainly contradicted something in the FFR, it could be argued that the amendment thereby signalled disapproval of that document. Much here might depend on the wording of the amendment and how far it appeared to contradict a specific policy stated in the FFR. It is hard to assess this scenario further since at present we have little idea what the FFR will look like – whether it will be a detailed ‘Heads of Terms’ type document or a much vaguer statement of political aspirations.

Litigation risk: Low

Use of subsequent statute to remove the risk of litigation

As noted above, the Withdrawal Agreement will require primary legislation – the proposed EU Withdrawal Agreement Bill – to implement it.  Furthermore, that legislation must be passed before ratification takes place (s 13(1)(d)). If, as a result of the way the s 13 process had played out, there was some doubt as to whether ratification would be lawful, the simplest way for the Government to nullify that risk would be, as the Brexit Endgame paper argues, to deal with the matter in the Withdrawal Agreement Bill. For example, the Bill could include a provision stating:

notwithstanding the provisions of the EU Withdrawal Act, section 13, or any other enactment, it shall be lawful to ratify the Withdrawal Agreement.

Clearly, however, such a clause would be likely to rouse considerable opposition amongst both MPs and Peers and there could be no guarantee that Parliament would pass it into law.

The authors would like to thank Tom Poole, Paul Craig, Tom Hickman, Jack Simson Caird, Alison Young and Conor Gearty for their valuable comments on an earlier draft. The usual disclaimer applies.

Robert Craig is an AHRC doctoral candidate and part time tutor in law at Durham Law School, Durham University and at LSE, Department of Law.

Gavin Phillipson is Professor of Law at Durham University. He is also currently a Parliamentary Academic Fellow in the Parliament and Constitution Centre in the House of Commons Library. The views above represent his independent view, which should not be taken as representing the views of the Library.

(Suggested citation: R. Craig and G. Phillipson, ‘Could the ‘Meaningful Vote’ End up in Court?’, U.K. Const. L. Blog (24th Oct. 2018) (available at https://ukconstitutionallaw.org/))