Amendment seven: has parliament finally taken back control on Brexit?

On Wednesday, the government suffered a major defeat on its Brexit legislation, when amendment seven to the EU Withdrawal Bill was successful. There have been around 400 amendments tabled to this Bill, and to date, this is the only one to have succeeded.

The EU Withdrawal Bill aspires to convert over 40 years of EU legislation into UK law in time for Brexit in March 2019, giving the government the power to decide which parts of that legislation should be retained or repealed. To be sure, the Withdrawal Bill is a vital piece of legislation, necessary to prepare UK law for Brexit day. Without it, there would be uncertainty, huge gaps in UK law, chaos even. However, the Bill as currently drafted is truly problematic, not least in providing a huge increase in ministerial powers at the expense of parliament, often conferring on Ministers highly controversial “Henry VIII” powers (namely powers for ministers to amend or repeal Acts of Parliament with next to no parliamentary involvement). So much for parliamentary sovereignty. Hence the many amendments tabled to this Bill.

So, what was amendment seven about? This amendment was tabled by Dominic Grieve, Conservative MP and former Attorney General, and it requires any Brexit agreement to be approved by a separate Act of Parliament before it can be implemented. Now the government had already conceded that MPs would have a vote on the final Brexit deal—but had insisted this would be on a “take it or leave it” basis, leaving parliament no real say in the matter. Amendment seven seems to envisage the possibility that the government could be sent back to renegotiate with the EU rather than simply giving parliament a deal to rubber stamp. It is, therefore, designed to ensure parliament has a “meaningful vote." (Although given the time strictures of the Article 50 process, as discussed below, this simply may not be possible.)

More specifically, the amendment seeks to change Clause 9 of the Withdrawal Bill, which gives ministers hugely sweeping “Henry VIII” powers to implement the Withdrawal Agreement in any way they see fit, with virtually no parliamentary control. Dominic Grieve's amendment added the clause that use of such ministerial power should be “subject to the prior enactment of a statute by parliament approving the final terms of withdrawal of the United Kingdom from the European Union.” Grieve told the Commons that this change was necessary to prevent the Withdrawal Bill becoming a “very worrying tool of executive power.” The fact that so many of those supporting this amendment are lawyers (an often maligned group of “experts”) has not been missed, for the intricacies and complexities (and sometimes sheer unreadability) of the Withdrawal Bill often shroud from the layman its real danger—a potential massive transfer of power to government and weakening of human rights that, once achieved, will be close to irreversible.

So, the government lost. MPs voted by 309 votes to 305 to approve amendment seven, and 11 Conservative MPs voted against the government, as did most of the pro-Brexit Labour MPs (most of whom have to date voted with the government on Brexit legislation).

What does this defeat mean?

Can we conclude that parliament has now, in those infamous words, “taken back control” of the Brexit process? Although this was an important amendment to the Bill, whose affect should not be diminished, one should probably not be over-enthusiastic about the prospects of greater parliamentary control over Brexit.

First, Dominic Grieve and other so-called “rebel MPs” were at pains to express that (contrary to some reports in the press) amendment seven was not intended to stop Brexit in any way. Instead it is intended to try to make sure that Brexit takes place in an orderly manner. There is weight to this statement because (again contrary to some media reports) amendment seven gives parliament no power to amend any Withdrawal Agreement. This deal is negotiated between the UK government and the EU, and should parliament exercise its power to vote against the deal, there is no guarantee that the EU would be willing to reopen negotiations to make any changes. The UK Parliament cannot force that. Indeed, by the time any Withdrawal Agreement is concluded, there will be very little time for renegotiation, given that Article 50 (which Parliament voted to trigger) dictates that the UK leaves the EU on 29^th March, 2019 (unless there is a unanimous agreement to extend the process, or the UK seeks to revoke Article 50, which may not be possible unilaterally).

On the other hand, this amendment may motivate the government to take more account of parliament, to seek a deal that parliament will find acceptable. Does this mean that a “soft Brexit” is more likely? Perhaps, but not necessarily as a result of Wednesday’s commons defeat. The largest obstacle at present to a “hard Brexit” is the UK-EU27 agreed withdrawal text ratified today. This isthe milestone for “sufficient progress” in the negotiations. It is difficult to see how a hard Brexit can be compatible with the arrangements so far agreed on Northern Ireland and the absence of a hard border between the Republic of Ireland and Northern Ireland.

But it should be remembered that amendment seven only enables parliament to have its “meaningful vote” and approve the final terms of withdrawal if a government minister intends to issue orders under Clause 9 in the first place. This amendment does not secure parliament’s position in the event of a breakdown in talks leading to a “No Deal,” which still remains possible. Other amendments tried unsuccessfully to give parliament the power to veto a “No Deal.” Amendment seven also cannot apply where (as the government has said it intends) completely separate legislation is used to legislate into UK law any Withdrawal Agreement, which may come too late for parliament to have any meaningful approval of a deal.

However, this defeat should mean that the government is alert to the consequences of losing more votes on the Withdrawal Bill. It is after all, a minority government, and the prospect of more successful amendments clearly affects its political standing. It may mean the government will now back down from its plan to write the Brexit date into the Withdrawal Bill. This is in any case unnecessary, as the UK will automatically leave the EU on 29th March 2019 under the terms of Article 50 (unless the UK and EU27 decide otherwise).

Wednesday’s vote undoubtedly raises hopes of parliament exerting more democratic control over the Brexit process. We in Britain have a representative, parliamentary democracy. We do not have plebiscitary democracy (the EU referendum had only advisory status in law, in spite of claims to the contrary) nor government by dictat of the executive. Government cannot assume that it will always dominate parliament, an expectation it has demonstrated too often, even after the judgement in the Miller case, which clearly affirmed parliamentary sovereignty. The crafting of the EU Withdrawal Bill, with its immense transfer of power to ministers, suggests the government has still not learned that lesson. Indeed, there have also been suggestions that the government will try to turn around its defeat on Wednesday by reversing the amendment during a later stage of the Bill process in the House of Commons.

However, in spite of Wednesday’s defeat for the government, parliament has already given away too much. For it allowed Article 50 to be triggered in the first place, without setting any limits on that process. With that act, it not only set the exit clock ticking (giving only a ludicrously short two years to negotiate the exit deal) but it triggered a process over which the UK has little, and parliament even less, control. In that sense, if the success of amendment seven is seen as an example of “taking back control,” then it has come too late.