The United Kingdom does not have to leave the European Union on 29th March 2019. It is not a done deal.
This is the truth that few in parliament currently dare to utter. As the EU (Withdrawal) Bill has been wending its way towards the Statute Book, ministers have stood at the Despatch Box and repeatedly uttered, with varying degrees of conviction, that “We are leaving the European Union.”
Martin Callanan, the minister of state at the Department for Exiting the EU, must have the words imprinted on his brain. By 15th March this year, even he was tiring of repeating them, as was clear when he told the Lords “We are leaving the European Union on 29th March next year in accordance with the Article 50 notification and we have made it very clear countless times.”
But what the minister could not tell his inquisitors on that occasion, and no minister has so far been in a position to explain, is the terms on which that departure would be made. In parliament there is a variety of views on what deal might be acceptable and a majority of politicians is determined to have its voice heeded on deciding this crucial issue.
“Parliamentary sovereignty” is the cry that unites them and that cornerstone of our democracy threatens to make life rather difficult for the government.
The path to Brexit was never going to be smooth. When a government tries to railroad parliament into doing something that most politicians believe would damage the country, it would be surprising if parliament did not put up a fight. Initially, neither the Lords nor the Commons seemed to have much of a stomach for the battle. The cudgel of the referendum result, irrespective of the narrow majority, was used repeatedly to bludgeon parliament into submission.
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“The people have spoken,” declared the government and the Bill to formally notify the EU of the UK’s intention to leave was allowed to sail into law.
Now, though, things are getting tougher for Prime Minister Theresa May, with the threat of real rebellion. The first signs of this erupted just before the Christmas recess when Dominic Grieve, the polite and lawyerly former Attorney General, tabled an amendment to the Withdrawal Bill which won the support of 11 of his Conservative colleagues, thus defeating the government.
Grieve’s careful wording, referring to the enactment of statutory instruments, may initially look fairly innocuous but the effect is not. It would ensure that parliament has to pass an Act before the legislation necessary for enacting a post-Brexit deal can be passed. It effectively gives parliament a genuinely meaningful vote on the terms of exit, something the government is trying to avoid. In its current form, the Bill offers peers and MPs just two options: accept the deal or we crash out without a deal, denying the potential third option of remaining in the EU.
That vote was a reminder of the government’s precarious position in the Commons, where the disastrous election result has left it dependent on the very expensive support of the DUP. Anxious to avoid further defeats, May has opted instead to trouble MPs as little as possible so potentially contentious measures are being avoided or postponed. Measures promised in the Queen’s speech last June yet to find space in the parliamentary timetable vary from the Domestic Violence and Abuse Bill to measures to protect residential tenants. A recent survey by the Times found that the results of a swathe of public consultations which would generally be expected to generate legislative change were simply being left to fester in government departments.
Even Brexit-related legislation is being shunted back in the parliamentary calendar. The Taxation (Cross-border Trade) Bill, which will enable the government to establish its own customs regime had been expected in the Commons before Easter but has been delayed until at least mid-May.
Instead, the real action is now destined to get underway in the Lords, with the Report stage of the Withdrawal Bill. In the proceeding Committee stage more than 300 amendments were tabled and debated but none were voted upon. What emerged, however, were areas of strong cross-party sentiment which will lead to votes and, almost inevitably, defeats for the government. Given the make-up of the Lords, with its battery of LibDems and the hefty contingent of Cross-Benchers, even the government’s three line whip cannot guarantee success. And on certain amendments, some Tories will almost certainly defy that whip, believing that they should put what they perceive to be the interests of the country first.
The challenge for pro-EU peers is to gauge what amendments stand a chance of being upheld by the Commons which will, quite rightly, have the final say. The Labour Party’s late embrace of the country remaining in a Customs Union with the EU will encourage the Lords to send an amendment along those lines back to the Other Place. Others on a vote on the final deal and on avoiding any border in Northern Ireland will have the Lords’ support.
Whatever they might like to think, Brexit is not a done deal.
