What do the government’s Brexit vote defeats mean?

Published: 5th Dec 2018

The government was defeated on three key votes yesterday. Two of these were about whether the government was in “contempt of parliament” (here’s an explanation of what that means) over its failure to publish the full legal advice it had received on the Brexit withdrawal agreement.

The third vote was an amendment from Remain-supporting Conservative MP (and former Attorney General) Dominic Grieve. It said that if the government loses its withdrawal agreement vote, and the government makes any further attempts to pass the agreement, then parliament will be able to add amendments to it.

What does the government being held in contempt mean?

In purely practical terms, this is not a huge deal. While parliament was historically considered a court, and has been able to either fine or imprison people who were found in contempt of it, these powers are generally agreed to no longer exist. The last time parliament fined someone was in February 1666, and the last time it imprisoned someone was in 1880.

In any case, the contempt motion that was passed did not call for any form of punishment. It simply said that the government was in contempt, and restated that it must publish the legal advice immediately. The government subsequently agreed to publish it.

But in symbolic and political terms, it is a very big deal. It is the first time in “modern parliamentary history” government ministers have ever been held in contempt, and it shows that the government does not necessarily have the votes needed to pass legislation. Crucially the Democratic Unionist Party, who have a “confidence and supply” agreement with the Conservative party to give them a majority in parliament, voted against the government.

What does the amendment to allow amendments mean?

OK, this is quite complicated. It’s all set out in Section 13 of the European Union (Withdrawal) Act 2018, which was passed by parliament in June.

In order for the UK to leave the EU with a deal, parliament must pass a bill to approve any withdrawal agreement. But before this legislation is brought before parliament, MPs must first signal their approval of the deal by passing a government motion. It’s that motion which is being voted on next Tuesday, following five days of debate.

It’s important to note that motions are not the same as bills. Bills make new laws (or change existing ones), while motions are part of the procedure of parliament, and (usually) non-binding. Think of them as a way for parliament to make its opinion known. So for the Brexit deal to pass, first parliament must signal that it approves of the withdrawal agreement (by voting on a motion), then make it into law (by passing a bill).

If the government’s motion is voted down on Tuesday (as almost everybody expects will happen) the government must return to parliament within 21 days to explain how it “proposes to proceed”. It then has to table another motion for parliament to say whether or not it approves of this new proposal.

Before Dominic Grieve’s amendment was passed, parliament would not have been able to make any amendments to that motion, effectively restricting them to either saying “yes” or “no” to it. Now, it can add amendments. This gives parliament the option of telling the government, if its first motion is voted down, to pursue a different strategy.

Does that mean it can force the government to go back and renegotiate?

Again, this has more symbolic and political force than legal force. The amendments won’t be legally binding on the government. However, politically, it would be very hard for the government to ignore a clear instruction from parliament―if it did, there is a good chance it would trigger a vote of no confidence, which could lead to a new government forming or a general election being triggered.

Of course, an instruction from parliament to renegotiate the deal wouldn’t mean very much unless the EU agreed to open talks again. Senior EU figures have repeatedly said that there is no option to renegotiate. (If any renegotiation were to happen, it is more likely that it would be over the non-binding “political declaration” on the intended future trade relationship than the legally binding withdrawal agreement.)

Perhaps the most important effect of the amendment is that it offers an opportunity for advocates of alternative approaches to leaving the EU (including those backing a Norway or Canada-style trade deal, a second referendum, or simply stopping Brexit) to test whether there is a majority of MPs in favour of any of these approaches.

Does this mean “no deal” is dead?

No (despite what some newspaper headlines say). The basics have not changed: the UK will leave the EU without a deal on March 29 by default, unless a deal of some kind has been voted through by parliament (or the EU have approved an extension of the Article 50 period, or potentially if Article 50 has been revoked.)

However, this will give MPs scope to express a wider range of opinions than simply having to say “yes” or “no” to the deal. This has lead some to argue that―by allowing MPs to effectively say “yes, but…”―it might have slightly reduced the chances of a no deal scenario.


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