What the ‘meaningful vote’ and ‘exit date’ amendments are really about

What the ‘meaningful vote’ and ‘exit date’ amendments are really about

Pro-Remain Tory MPs have opposed the government on many aspects of the EU Withdrawal Bill. So far, they have succeeded in inflicting a damaging defeat in Committee stage when Amendment 7, proposed by Dominic Grieve QC MP, was passed against the government’s wishes with the aid of Labour, LibDem and SNP votes. This amendment was billed as giving Parliament a “meaningful vote” on approving the terms of the prospective withdrawal agreement with the EU, but its actual effect is rather different as I shall explain.

Now, we are coming up to a vote on whether the “exit date” should be written into the Bill. It is widely rumoured that a compromise proposed by Sir Oliver Letwin MP will be accepted by all (at least on the Conservative side), under which the “exit date” (11pm on 29 March 2019) will be written into the Bill, but with a clause permitting that date to be varied in certain limited circumstances.

What Amendment 7 really does

It was always clear that Parliament would have a meaningful vote on the terms of any agreement under which we leave the EU. This is because any such agreement will entail making changes to UK domestic law. So Parliament has to approve those changes, or they cannot come into force, which makes it impossible for the UK to implement such an agreement and therefore to ratify it.

In addition, the government has assured Parliament that such steps will be taken by an Act of Parliament, so there will be no short cuts through using some statutory instrument procedure. So what is Amendment 7 about?

Amendment 7 does not give Parliament a vote when it would not have had one. What it actually does is impose a restriction on when clause 9 of the Bill can be used. Clause 9 confers a power on ministers to make regulations in order to implement the withdrawal agreement, if “such provision should in force on or before exit day.” What Amendment 7 does is add a rider to clause 9 saying it can only be used “subject to prior enactment of a statute by Parliament approving the final terms of withdrawal”.

The reason for having clause 9 is that preparatory steps may need to be taken before a Bill implementing the withdrawal agreement can wend its way through all the Parliamentary stages. So under the government’s plan, there would be a rapid vote by each House on the principle of approving the withdrawal agreement, and they could then get on with urgent preparatory steps while Parliament carries out its proper role of looking at the details of a Bill which would implement the agreement permanently.

The effect of Amendment 7 is therefore to make clause 9 redundant. No advance regulations can be brought into force until the new Withdrawal Agreement Bill passes all its stages and gets Royal Assent. Once that Act comes into force, there will be no further need of clause 9 since the new Act will contain the necessary powers for implementing the withdrawal agreement.

So Amendment 7 does not procure a “meaningful vote” when there would otherwise be one. What it does is throw a spanner in the works of making preparations for leaving the EU, which may well be necessary because there could be a short timetable between agreement being reached with the EU27 on exit terms and our leaving the EU in March 2019.

Why have they done it? It seems that what the Remain supporters really want to achieve is something quite impossible, which is a Parliamentary vote to force the EU27 and the government to reach an agreement if reaching such an agreement becomes unachievable. Since it is outside the powers of the UK Parliament to force the EU27 by legislation to offer terms which are acceptable, this act of non-fatal sabotage seems to be an indirect attempt to achieve by the back door what cannot be achieved directly.

The Remainers’ argument for not fixing a date in the Bill

No issue seems to agitate to the pro-Remainers more than the government’s intention to write into the Bill the date and time (11pm GMT on 29 March 2019) of the UK’s exit from the European Union. This would be done by amendment No 381 tabled by David Davis, due to be debated on Wednesday 20 December 2017.  

On this issue, Kenneth Clarke QC MP and 14 other Conservative MPs wrote to the Daily Telegraph on 16 November 2017 arguing that:

“What looks at first blush like an uncontroversial proposal could accidentally harm our country’s interest. Putting a date in law is too rigid. As negotiations reach their close, the Government may need a small amount of additional time to conclude, for example, the best transitional deal.”

Dominic Grieve QC MP (one of the signatories of the Telegraph letter) went further in his article in the London Evening Standard on 14 November 2017. He made the same point about a possible need for “a little extra time” in order to get a better deal in negotiations, but added that the government’s intended amendment “smacks of an ideological statement without value” and that if it is persisted with, he will be unable to support it.

But there is no need for date “flexibility” for this claimed reason

But this claimed and at first sight reasonable-sounding justification – flexibility to allow a little extra time if that should prove necessary – is entirely implausible as the real reason for opposing the government on this issue.

Parliament can if necessary act with great speed when urgency is required. Indeed, on occasion Acts of Parliament have been passed by both Houses and received Royal Assent in a single day. In the scenario suggested in the Telegraph letter, where a few more days or a week or two were needed to wrap up a deal in the interests of the UK and the EU, such an Act of Parliament could be put through rapidly and with little or no opposition.

So it is quite unnecessary for the Bill to stay in its present form — under which there is no “exit date” written in the Bill but rather a blank-sheet power for a Minister to specify the date — in order to achieve the objective stated in the Telegraph letter.

And date “flexibility” in the Bill does not achieve what the Remainers claim

But what is less widely appreciated is that keeping the Bill in its present form would not be sufficient to achieve that objective either. That is because using the power to specify a later date than 29 March 2019 for the Bill to come into force on “exit day” would not result in directly-effective EU law continuing in force after that date. Directly effective EU law would lapse, whatever is done to with the Bill, as a result of the automatic operation of Article 50 of the Treaty on European Union.

So, setting a date later than 29 March 2019 under the Bill – which will be UK domestic legislation and therefore cannot by itself affect the international legal position under the Treaties – would simply result in creating the dangerous gap in the law which the whole purpose of the Bill is to prevent.

For example, Regulation (EC) No 726/2004 is a directly applicable Regulation under EU law which makes it lawful to make and supply many life-saving drugs which have been authorised by the European Medicines Agency. As a result of the operation of Article 50, this Regulation will cease to be part of UK law from 11pm on 29 March 2017.

But at this point the EU (Withdrawal) Act (which the Bill will by then have become) will kick in and convert into continuing UK law that Regulation (along with many other directly applicable EU Regulations) so that it will still be lawful to make and supply EMA authorised drugs within the UK.

But if the exit date under the Bill were to be postponed as advocated by Kenneth Clarke and his friends, there would be a gap during which it would be illegal to make or supply life-saving EMA authorised medicines to patients in the UK. And it would be worse than that. Clause 4(1) of the Bill gives continuing effect under UK domestic law to directly effective EU law which is in force “immediately before exit day”.

Since the EU Medicines Regulation (and other directly applicable EU Regulations) would no longer be in force by the time of the postponed “exit day”, it would not come into force as part of UK law at all.

All this means that there would need to be an Act of Parliament in any case to bridge the gap in domestic law and keep the statute book functioning. And if an Act of Parliament will be needed in any case, what on earth is the point of retaining the ministerial power to monkey with “exit date” under the Bill?

In fact the further amendment (No 400) recently tabled by Sir Oliver Letwin MP, Geoffrey Cox QC MP, and Bernard Jenkin MP would prevent a dangerous gap opening up between the date when the UK leaves the EU treaties under international law and the internal “exit date” for the purposes of UK domestic law in the Bill. It would allow the “exit day” as specified in the Bill to be altered if and only if the day or time when the EU treaties cease to apply to the UK becomes different from the expected date.

Extending Article 50 at international level?

It is possible for Article 50 to be extended at international level, by agreement between the UK and (by unanimity) all the other Member States. However, under the majority judgement of the Supreme Court in the Gina Miller case, this could only be done with the assent of Parliament. This is for the same reason as the Supreme Court ruled that giving of the Article 50 notice required the authority of Parliament – because an extension of Article 50 would impact on the rights and obligations of individuals under UK domestic law, and so alter the effect under UK domestic law from that authorised by the EU (Notification of Withdrawal) Act 2017 under which the notice was given.

So, whichever way you did it, a standstill in our law to accommodate an extended negotiating period would need to be approved by Parliament. And if Parliament was brought in to approve it, Parliament at the same time could make any necessary adjustments to the Withdrawal Bill to bridge the gap in our domestic law, so rendering a ministerial power to alter the “exit date” in the Bill totally unnecessary.

Still, having the power in the Bill in the form proposed by the Letwin amendment doesn’t do any harm, even if it is unnecessary.

Why oppose putting the date in the Bill in the first place?

The variable-date clause of the Bill as it stands before these amendments is not restricted to use in the scenario of a short extension to allow negotiations to complete. It gives a quite unfettered power to ministers to specify any date they like as “exit day”,  when the European Communities Act 1972 will be repealed and the new post-Brexit domestic legal regime will come into force. In fact, the Bill in its unamended form would allow ministers, without needing any Parliamentary consent, not to set a date at all and simply allow time to run after 29 March 2019, meaning that the Bill would not come into force and the European Communities Act 1972 would remain part of the law.

One of the other issues which greatly exercises this same group of Tory Remainers is the presence of the so-called Henry VIII powers in the Bill, under which ministers can correct deficiencies in retained EU law by statutory instruments subject to Parliamentary approval. These powers are much narrower and more circumscribed than the vast power to legislate by statutory instrument in the existing section 2(2) of the ECA 1972 to which, strangely, there do not seem to be similar objections. However, what is truly startling is the contrast between their opposition to these “Henry VIII” powers in the Bill, and their support for a completely untrammelled power (now to be elegantly tamed by the Letwin Amendment 400) on Ministers to monkey with the most fundamental aspect of the Bill, its implementation date.

Why retaining a write-in exit date in the Bill would be dangerous

Leaving a completely untrammelled power in the Bill in the hands of the executive to set a different date, or not set a date at all, would be dangerous. For example, what if the present government were for any reason replaced by a government of different composition? Without the need for any Parliamentary vote, our exit from the EU could be converted into a Hotel California scenario – where you try to leave, but you can never check out. And because deferring the date would create the dangerous gap in the law which I have described, Parliament would then be effectively blackmailed into having to extend directly-effective EU laws to fill the gap.

The calculation is that once one deferment had been made, there would always be an argument for yet another deferment – a bit more negotiating time needed, or time to get the Walloon Parliament to ratify the deal, etc etc etc.

So the argument that the Bill should allow for a variable exit date in order to allow for a few more days to wrap up a good deal is simply the very thin and reasonable-looking end of a very big and unreasonable wedge – the thick end of that wedge is that we could be left 5 years down the road still stuck inside the EU legal order and bogged down in endless and complex trade negotiations with the EU which the EU will have every incentive to drag out indefinitely.

The mystery here is not the predictable (if rather hypocritical) opposition to the government’s amendment by the unreconciled Tory Remainers, but why the Bill was ever published in this form in the first place. Regrettably, it is evidence that the government has not yet fully mastered the civil service and government legal machines. In saying this, I am not criticising ministers who have had to bring forward a complex Bill bristling with many legal points and on the whole have done an excellent job. But this particular ball was kicked between ministers’ legs, and so the Prime Minister was quite right to promise to close this loophole through a government amendment during the Bill’s committee stage.

One can sometimes be too ready to ascribe the results of simple incompetence to a conspiracy. But at the risk of seeming paranoia, the write-in exit date in clause 14(1) of the Bill in its original form looks like a deliberate trap door inserted by civil servants in an attempt to by-pass the need for Parliamentary approval either for a deferment of our exit from the EU, or for the continuation of existing EU law supremacy, structures and jurisdictions through the continued application of the 1972 Act during a transitional period (which could then be extended). The civil service machine maybe calculated that it could prevail on pliable ministers to defer the date in the Bill when UK law replaces EU law, and then Parliament would be put in the position of having no effective choice but to agree to continue EU laws, ECJ jurisdiction, and the full panoply, in order to fill the gap.

The government’s other announcement last month, that the legal regime for any implementation or transitional period will be given effect in UK law by a separate Act of Parliament, is very welcome and is complementary to the removal of this dangerous trap door from the Bill. This whole incident reinforces the need for hawk-like vigilance when dealing with the civil service and government legal machine.

Why is it 11pm?

And finally, why 11pm? Since 11pm GMT is midnight in Brussels time, this has been thought to be some sort of concession to Brussels. In fact, where a treaty includes countries in different time zones and it is desired to start or terminate it at the end of a particular day, it is obviously necessary to pick the time zone of one particular place to set the precise time when the agreed day ends. Conventionally, this will be the time zone of the place where the treaty was signed.

In the case of the EU treaties, that place is Rome, where the original Treaty of Rome was concluded. The Italian Republic remains the so-called depository State for receiving ratifications etc both of the Rome Treaty (now renamed the Treaty on the Functioning of the European Union) and of the Treaty on European Union. Therefore we shall be leaving the European Union at precisely midnight, Roman time, at the end of Friday 29 March 2019.