8 January 2019

Can Parliament stop a no deal Brexit?

By Joe Marshall

The stage is set for no deal. In international law, Article 50 makes clear that the EU treaties will cease to apply to the UK on 29 March 2019. Likewise, the EU Withdrawal Act specifies the same date as “Exit Day” in UK law, at which point a raft of no deal domestic legislation will take effect.

There are only three ways to avoid this. First, the UK can agree a Withdrawal Agreement with the EU, which is subsequently ratified by both sides and implemented into UK law through an Act of Parliament. Second, Article 50 can be extended by unanimous agreement of the UK and EU27, and “Exit Day” in the EU Withdrawal Act be amended to reflect the delayed departure. Third, the UK can unilaterally revoke Article 50 and remain in the EU on current terms, although UK legislation may be needed to give the Government domestic legal authority to revoke and would be required to stop no deal legislation taking effect.

In none of these scenarios can Parliament initiate the outcome. Only the Government can negotiate a deal, request an extension or revoke Article 50 and, in practice, put forward the legislation needed to make these options effective.

So, what can Parliament do to force the Government to stop no deal?

The first option is for Parliament to set out its opposition to no deal exit, even while it is rejecting the government’s deal. The Government cannot ratify the Withdrawal Agreement without Parliament. This “meaningful vote” was postponed until the January 15 and still looks likely to be rejected. MPs may amend the motion to direct the government to rule out no deal, but this would not be legally binding.

If the Government’s deal is rejected, it must make a statement to the Commons within 21 days on next steps. MPs will then vote on that statement within seven sitting days. Originally, this second vote was unamendable but following parliamentary opposition, it can now be modified. MPs could use this as a further opportunity to direct against no deal.

Other opportunities include Backbench Business and Opposition Day debates, although the Government could frustrate these by refusing to schedule Parliamentary time. Urgent questions and Emergency Debates could also be used, with the Speaker, rather than the Government, deciding whether to grant time. However, none of these avenues would legally oblige the Government to act – they might be used to continue to signal opposition, but they would have little or no effect.

MPs could also start targeting Brexit legislation more consistently and make provisions conditional on the Government avoiding a no deal. Unlike votes on motions, amendments to legislation are legally binding, assuming the bill they attach to passes. Alternatively, Parliament could up the stakes by voting down bills, tabling wrecking amendments or delaying their passage. Such moves would weaken the UK’s preparations for no deal.

The Government still has nine Brexit bills to pass, including at least three for no deal. A key target would probably be the Trade Bill, which is due to begin its Lords Committee Stage on January 21. MPs will only be able to amend it when it returns to the Commons for Ping-Pong, potentially close to Exit Day, leaving the Lords to amend against no deal in the interim. This may encourage MPs to target other bills when they come before the Commons, such as the Agriculture Bill. In theory, the Government could delay or pull legislation to avoid defeats, however, any opportunity to do so is fast elapsing.

Beyond primary legislation, MPs could target the hundreds of pieces of secondary legislation (SIs) needed to ensure the UK statute book functions in a no deal. Unlike bills, SIs cannot be amended. MPs could insist that SIs tabled under the “affirmative” scrutiny procedure are debated on the floor of the House instead of in a Delegated Legislation Committee, causing delays and a scheduling headache for Government. Alternatively, MPs could take the nuclear option, praying against negative SIs and refusing to pass affirmative SIs, leaving UK law ill-prepared for no deal.

All of these actions would put pressure on the government by increasing the political risks of crashing out of the bloc, but they don’t themselves stop no deal. They do also increase the risks if no alternative is found since they would weaken the UK’s preparations for no deal.

Non-Brexit legislation is also a target. A cross-party group of MPs led by Labour’s Yvette Cooper have tabled an amendment to the Finance Bill- the legislation that implements the budget. The amendment would make powers to change tax law, conditional on either a deal being reached with the EU, an extension of Article 50, or MPs explicitly voting for no deal. While this amendment would not undermine the UK’s wider preparations for Brexit, it would risk some problems in the event of no deal.

Depending on how far they are willing to go, MPs could put even greater pressure on the Government by voting down the Finance Bill entirely at third reading- potentially preventing the Government levying income and corporation tax in the next financial year. The ‘supplementary estimates’, which authorise amendments to departmental spending- typically held in February- could also be targeted. All of these moves put pressure on the government, but don’t themselves prevent no deal.

Should the alternatives prove ineffective, those seeking to prevent no deal could vote with the Opposition on a no confidence motion under the Fixed-term Parliaments Act. The Government would then have 14 days to regain enough support to win a motion of confidence, or face a general election or alternative Government. During the 14-day period, MPs could make their support conditional on avoiding no deal. However, if the Government (or Opposition) failed to win the second vote, the UK would face a general election, with no deal looming large. An election could be sufficient grounds to convince the EU to extend Article 50, should the Government request it, but that would only buy so much time.

To be effective, the alternatives to no deal require both the Government and Parliament to act in tandem. The Government needs to take the initiative and attempt to change the default, and Parliament needs to lend its support to make any alternative effective. Ultimately, while Parliament can put pressure on the Government to change course, it has no guarantee it will prove effective.

Joe Marshall is a Researcher at the Institute for Government.