The latest amendment passed by the House of Lords to the Brexit Bill has been spun in the media as an amendment giving “a meaningful vote” to Parliament. This spin has allowed it, and the noble Lords who drafted it and voted it into the Bill, to escape any meaningful scrutiny of what the amendment actually says and what effect it would have if it were actually carried into the Act when it is passed into law. So, to recap, the Bill entered the House of Commons, and left it without amendment, as an extremely short and simple Bill having one substantive provision only: “The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.” During the Bill’s passage through the House of Lords, it has been subjected to two amendments, which have more than trebled the size of the Bill. The first amendment, added during the House of Lords Committee stage, requires ministers to “bring forward proposals” to ensure that EU and EEA citizens continue to enjoy their EU-derived rights within three months of the Article 50 notification. The second amendment was added during the Report Stage in the House of Lords, that is the final stage before the Bill passed the House on its Third Reading. This is the so-called “meaningful vote” amendment, and it reads as follows:- “Parliamentary approval for the outcome of negotiations with the European Union (1) The Prime Minister may not conclude an agreement with the European Union under Article 50(2) of the Treaty on European Union, on the terms of the United Kingdom’s withdrawal from the European Union, without the approval of both Houses of Parliament. (2) Such approval shall be required before the European Parliament debates and votes on that agreement. (3) The prior approval of both Houses of Parliament shall also be required in relation to an agreement on the future relationship of the United Kingdom with the European Union. (4) The prior approval of both Houses of Parliament shall also be required in relation to any decision by the Prime Minister that the United Kingdom shall leave the European Union without an agreement as to the applicable terms.” This is quite a complex series of provisions. Let us see what each of the sub-clauses is trying to achieve:- Sub-clause (1) relates to the “agreement … setting out the arrangements for withdrawal” between the EU and the UK which is envisaged by Article 50. The government has already undertaken that there will be a vote in both Houses on such an agreement. In any event and even without such an undertaking, the withdrawal agreement would almost inevitably entail alterations to UK domestic law, in which case the government would be unable to implement such an agreement without the authority of Parliament. That authority would presumably be provided within the Great Repeal Bill or, under the existing European Communities Act 1972, it could be done by an Order in Council declaring the withdrawal agreement to be an “EU treaty” for the purposes of that Act. Under section 1(3), such an Order in Council has to be approved by a resolution of both Houses. So, it doesn’t look as if sub-clause (1) achieves anything that is not achieved by the existing law and by the government’s undertaking. So presumably its purpose arises from a fear on the part of their noble Lordships that the government will breach its undertaking and somehow find a loophole in the law so it can conclude an agreement with the EU without needing resolutions from both Houses. If this is the concern, the drafting is stunningly incompetent, since it only restricts an agreement entered into by the Prime Minister. When the United Kingdom enters into international agreements, it does so in the name of Her Majesty acting through a minister or, for less important treaties, an ambassador or other representative. In fact it is quite rare for the Prime Minister to sign treaties. A rare exception was the 1972 Brussels Treaty under which the UK acceded to the EEC, which was signed personally by Edward Heath for political reasons and memorably resulted in him being pelted with ink by a protester in Brussels. The Maastricht Treaty, for example, was signed in a more low key way by Douglas Hurd and Francis Maude, then Foreign Secretary and Minister of State at the Foreign Office. So sub-clause (1) can be by-passed quite simply by getting the Foreign Secretary or a more junior minister to sign the withdrawal agreement. Not the most watertight drafting by their Lordships. Sub-clause (2) purports to “require” the approval of both Houses under sub-clause (1) to be obtained before the European Parliament debates and votes on the withdrawal agreement. The government can do its best to get a draft withdrawal agreement in front of both Houses of Parliament but is not in control of the timetable of the European Parliament, which may choose to debate and vote on the draft withdrawal agreement as soon as it is passed to them by the Council of Ministers. What is the effect of this sub-clause if the European Parliament does get there first? This is not totally clear, but presumably it is then no longer possible for each House to give its approval under sub-clause (1). So, even if both Houses wish the agreement to be approved, there would appear to be no way in which they could lawfully do so. It is just as well then that the incompetence in drafting this sub-clause is mitigated by the incompetence in the drafting of sub-clause (1) which would allow the agreement to be signed by the Foreign Secretary without the need for approval by each House. Sub-clause (3) would require prior approval of both Houses “in relation to an agreement on the future relationship of the United Kingdom with the European Union.” It should be noted that the withdrawal agreement envisaged by Article 50 will cover the “arrangements for withdrawal” but will not itself cover the future relationship. Article 50 necessarily requires that the framework for that future relationship be negotiated at the same time as the withdrawal agreement since that agreement is required by Article 50(2) “to take account of the framework for [the departing State’s] future relationship with the Union.” The precise sequence and timing of the negotiations for the withdrawal agreement and for the future relationship is likely itself to be a (possibly contentious) subject in the negotiations between the EU27 and the UK. However, for present purposes one can assume that there may be an agreement (or more likely a suite of agreements) on the future relationship between the EU and the UK, probably negotiated in parallel with the withdrawal agreement but got in order for approval and ready for signature shortly afterwards. Under the present state of the law, the government could not conclude such an agreement without authority from Parliament, because that agreement would be bound to affect UK internal law. It is likely that the so-called Great Repeal Bill will contain powers to give effect in UK domestic law to an agreement or agreements with the EU on our future relationship, and presumably it will authorise such agreements to be given effect by affirmative resolution each House. So sub-clause (3) will duplicate what will in any event have to be in the Great Repeal Bill and therefore seems totally pointless, as well as ineffective because of the “Prime Minister” loophole. Sub-clause (4) is undoubtedly the most bizarre part of this amendment and contains both drafting flaws and far more serious conceptual flaws. Its basic problem is that it is designed to achieve the impossible: to create a legal compulsion on the government acting for the UK to reach a deal with the EU which is acceptable to the House of Lords. But the effect of Article 50 once it is invoked is that the United Kingdom will automatically leave the EU without an agreement, unless something positive is done to achieve a different outcome. It is not necessary for the Prime Minister or anyone else to “decide” to leave the EU without an agreement for that to happen. In the absence of reaching an acceptable deal and deciding to conclude it, we will simply leave without a deal. So, the Prime Minister and government can stick to their negotiating position, not budge, and wait for the EU to agree to it. There is no need to walk away from the table or to “decide” to withdraw without an agreement. If the EU do not agree to the proffered terms by the final date, then we simply leave with no agreement in place and that is that. This bizarre amendment purports to prevent the Prime Minister reaching a decision, not just implementing a decision once taken. Even in these days when Prime Ministers exercise presidential-style powers, this surely must be a decision for the government as a whole, and therefore the Cabinet, and not a personal decision by the Prime Minister: yet this proposed law purports to relate personally to her. How can the Prime Minister be prevented from reaching a view in her own mind, if circumstances lead there, that it will not be possible to reach an acceptable agreement with the EU? What is she supposed to do if she does reach such a view and either does not ask for, or does not get the approval of, both Houses for her “decision”? What happens then? The amendment imposes no duty on the government to do anything else instead. It does not require the government to go back with new or different negotiating proposals to the EU. The government could simply sit there, keeping its current negotiating position open to the EU, and waiting for the EU to change its mind and agree – or not agree, leading to exit with no agreement. No doubt the noble Lords behind this amendment would then cry “foul”. Although the amendment does not actually specify that the government would then be under any duty to do anything at all, the clear purpose is to open the way to constitutionally toxic judicial review proceedings in which the judges would be asked to order the government to change its mind and to do something (like agreeing to whatever the EU might ask for) in order to prevent the negotiations from failing. Regardless of its defects as a piece of statute law, the presence of this amendment in the Act would gravely damage the UK’s chances of getting an acceptable deal in its negotiations with the EU. The EU27 will perceive it is saying that if they offer a rotten deal to the UK, then the British government will not be allowed to walk away without the approval of the House of Lords. The EU27 will believe (despite the flaws in the actual drafting discussed above) that the UK government will be forced to offer better terms. So this amendment is clearly and unambiguously damaging to the national interest of the UK. Its only rational purpose is to make the negotiations on withdrawal terms fail so badly that, in the deluded perceptions of its proponents, the country might then change its collective mind and agree to stay inside the EU. This amendment is an abuse of the constitutional powers of the House of Lords. It is not revising or improving inadequately scrutinised legislation passed by the Commons, but rather adding clauses designed to frustrate the will of the Commons and of the people themselves. It seeks to damage the UK’s national interest in reaching a good Brexit deal with the EU in order to further a partisan desire to reverse the country’s decision to leave. The House of Lords’ proper constitutional function is as a revising chamber to improve our statute law. It has grotesquely failed to perform its revising function in this instance, by introducing into a Bill which is supposed to become binding statute law a set of provisions which are so seriously flawed in their drafting and concepts that they can only be described as legislative garbage.