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Peers recently voted in favour of an amendment to the Government’s flagship piece of Brexit legislation, the EU (Withdrawal) Bill, which would require the Government to obtain Parliament’s approval of the withdrawal deal and would enable Parliament, if it does not approve of the deal, to instruct the Government to re-open the negotiations.

Amendment 49

The amendment, moved by Viscount Hailsham (former Conservative Minister Douglas Hogg), builds on the sole defeat which the Government suffered in the Commons. A Conservative backbench rebellion there, led by Conservative MP and former Attorney General Dominic Grieve QC, saw the Bill modified to require primary legislation to be enacted approving the terms of the withdrawal agreement.

Viscount Hailsham’s amendment goes further:

  • first, it requires the Government, before concluding the withdrawal agreement, to obtain Commons’ approval of it (and any transitional arrangements), and for the matter to have been considered by the Lords. So far as practicable, this is to take place before the European Parliament has itself debated and voted on the draft withdrawal agreement;
  • second, the Government cannot implement the withdrawal agreement unless Parliament has approved it (and any transitional measures) by an Act of Parliament; and
  • third, if Commons’ approval isn’t given by 30 November 2018, or the Act has not received Royal Assent by 31 January 2019, or no withdrawal agreement has been reached by 28 February 2019, the Government is to follow any direction on the negotiations approved the Commons and considered by the Lords. That could include a direction to reopen the negotiations.

The amendment’s supporters claim that the risk of a damaging ‘no deal’ Brexit is now reduced because, should the Government fail to secure a deal at all, Parliament would send the Government back to the negotiating table. The amendment provides a ‘safety net’ just below the cliff edge.

Reversing its effect

But the Government will almost certainly seek to reverse the effect of Amendment 49 when the Bill returns to the Commons.

Government whips will remind MPs that it has already promised Parliament a ‘meaningful vote’ on the withdrawal agreement, and an EU (Withdrawal Agreement and Implementation) Bill to give effect to that agreement – so the first two parts of the amendment are unnecessary. They will also likely argue that the negotiations are a matter for the Government, and would be fundamentally undermined if Parliament had a veto over the deal struck – so the third part is unwise. If a defeat in the Commons looked likely, the Government could try to water down the effect of the amendment, by seeking to limit the powers available to Parliament to give it directions….. READ FULL ARTICLE