The Government’s first defeat on the EU (Withdrawal) Bill has been widely reported as a humiliation for the Prime Minister and as an important setback for the Government’s Brexit strategy. But how significant is it really? The amendment on which the Government was defeated — ‘Amendment 7’, championed by former Attorney General Dominic Grieve — concerns clause 9 of the Bill. In its original form, clause 9(1) said:
A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day.
This is a very significant power, since it enables the Government to legislate to implement a withdrawal agreement (if any such agreement is made) without the need for a fresh Act of Parliament, albeit that Parliament can (in theory: the practice is more difficult) reject or decline to approve ‘secondary legislation’ made under clause 9. The upshot, then, is that clause 9 put the Government firmly in the driving seat when it came to implementing a withdrawal agreement. Moreover, clause 9 could (and still can) be used to amend or repeal provisions in Acts of Parliament — including the EU (Withdrawal) Bill itself. It is thus a ‘Henry VIII power’.
So what does Amendment 7 do? Here is clause 9(1) as amended; the new language is in italics:
A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union.
The effect, then, is that the Government can no longer use its power under clause 9 to implement a withdrawal agreement unless Parliament has first legislated so as to signal its approval of such an agreement. Does this mean that Parliament is now installed in the driving seat, and that it has thus ‘taken back control’?
The answer can be only a qualified ‘yes’. The Government had already said in a written ministerial statement that it would not use its clause 9 power to implement a withdrawal agreement until Parliament had voted on the agreement. The Government had also indicated that clause 9 would be used only in limited circumstances, and that a further piece of proposed legislation — the Withdrawal and Implementation Bill — would be the primary vehicle for implementing a withdrawal agreement. Against this background, clause 9 had already begun to look like an unnecessary power-grab by the executive. Amendment 7 means that clause 9 is now very unlikely to be used: since a new statute indicating Parliament’s assent to a withdrawal agreement is now needed before clause 9 can be pressed into service, that new legislation, rather than clause 9, will almost certainly be used to implement the agreement. The effect of Amendment 7 is thus to turn ministerial assurances — that clause 9 would not be used absent parliamentary agreement, and might not be used much at all — into much harder, legal guarantees.
But what does that mean in practice as far as parliamentary control of Brexit — and, in particular, the terms of Brexit — is concerned? Some commentary, including from politicians, conflates two quite distinct matters. It observes that Parliament will be able to control the content of the legislation concerning the withdrawal agreement that clause 9 now requires, and implies that Parliament will thus somehow be able to influence what the agreement is. That, however, is fanciful. All that Parliament will be able to do is to (a) grant or withhold its assent to a withdrawal agreement and (b) if it assents, shape the legal machinery whereby the agreement will be given domestic effect. What Parliament will not be able to do is to amend the withdrawal agreement itself. The agreement will have been negotiated by the EU and the UK Government. Parliament will be presented with it on a take-it-or-leave-it basis.
All of this said, the fact that the Government cannot now go ahead and implement a withdrawal agreement is not a trivial matter. It may, for instance, focus Ministers’ minds, incentivising them (to a greater extent than before) to attempt to negotiate a deal that is likely to meet with Parliament’s approval. But it does not guarantee that they will be capable of doing that. And nor does it enable Parliament readily to improve matters if it dislikes the deal it is invited to approve.
Indeed, by the time Parliament is asked to consider a withdrawal agreement, time will be starting to run very short. So it Parliament were to decline to approve the deal, it is far from certain that there would be time to go back to the negotiating table and seek a better one (even if the EU were willing to negotiate further). That is so by virtue of the simple fact that the default legal position is that the UK will be ejected from the EU on 29 March 2019. That a possibility for which Article 50 of the Treaty on European Union provides, and it is a possibility that Parliament itself sanctioned by authorising Ministers to trigger Article 50 in the first place. Of course, the UK could seek to extend the negotiation period, but it is unclear whether it has the unilateral right to do that (by withdrawing its Article 50 notification and stopping the clock). Absent such a right, other EU Member States would need to consent to extending the negotiating period — and it must be at least uncertain whether such consent would be forthcoming at the eleventh hour.
The upshot is that by approving Amendment 7, Parliament has increased its leverage somewhat. The Government is now on notice that it must get Parliament’s agreement before any withdrawal agreement can be implemented, and that it must therefore seek to negotiate a deal that will be likely to garner parliamentarians’ approval. But that should not be taken to mean that Parliament is now fully in control. After all, if it were to refuse to approve a withdrawal agreement that it considered deficient, it would be choosing a chaotic Brexit over a less-than-ideal Brexit. The irony, then, is that by allowing Article 50 to be triggered in the first place, Parliament initiated a process over which the UK’s — and so Parliament’s — control is inevitably limited. That is not to suggest that MPs are wrong to seek to exert over the Brexit process such democratic control as they can. But it would be naïve to think that Amendment 7 empowers Parliament meaningfully to decide the terms upon which Brexit will take place.