Yesterday, MPs kicked off five days of debate on whether or not to accept the terms of the Brexit deal negotiated by the government. The action yesterday (4 December) centred around two main points.


The first was the failure by the government to disclose its full legal advice on the withdrawal agreement despite having been required to do so by a particular form of Parliamentary motion, called a ‘humble address’, passed on 13 November. A humble address is considered binding under Parliamentary procedure. However, the government later declined to publish the full advice, publishing instead what it described as a summary of it (but which was in fact little more than something like an explanatory note to the withdrawal agreement).

In the face of that refusal, all of the opposition parties wrote to the Speaker of the Commons to request a debate on whether or not the government was in contempt of Parliament. Findings of contempt are how the Commons holds MPs to account, particularly where actions or inactions obstruct the business of the House. A finding of contempt can result in a reprimand, suspension or expulsion of a particular MP (and even theoretically imprisonment in the clock tower of Big Ben). Questions of contempt can either be dealt with on the floor of the Commons or hived off to the Standards and Privileges Committee which makes a recommendation that the House then votes on.

The government attempted to have the question referred to the Committee (as a way of kicking it into the long grass beyond the vote next Tuesday). MPs’ refusal to do so was the government’s first defeat of the day. Having retained the decision to themselves, MPs then voted to confirm that the government was indeed in contempt and that the advice should be published immediately. The government has now done so and we will be commenting on that separately.

There is little in that advice that we don’t already know. The main issue is its confirmation that there is no way for the UK to get out of the backstop on Northern Ireland (if that comes into force) without the agreement of the EU. That point is made in blunt terms and the fact that it is in an Attorney General’s legal opinion will diminish the government’s ability to spin that politically.

The Grieve amendment

After the debate on contempt, MPs began their actual debate on the terms of the deal. The government’s third defeat of the day came through an amendment tabled by Dominic Grieve to the business motion which sets out the way in which the current debate will be conducted. This is potentially of much greater significance than the legal advice.

Under section 13(4) of the EU (Withdrawal) Act, if MPs vote down the deal then the government must come back to the House within 21 days with a proposal for how it plans to move forward. MPs then vote on that proposal. However, the Act states that they will be voting on a ‘neutral motion’. Under standard Parliamentary procedure a neutral motion cannot be amended by MPs. This means that they would vote on a simple motion stating that they have only considered the government’s Plan B, but not whether or not they agree. They would have no ability within that vote to tell the government to do something different where they disagreed with the proposal.

Dominic Grieve’s amendment basically means that MPs will be able to amend the motion and thus gives them the ability to give instructions to the government as to what Plan B should be.

On the one hand that will embolden MPs who do not like the current deal to vote it down in the knowledge that they will then be able to control what happens next (as against the government narrative that it is a choice between this deal and no deal). On the other, it gives the government a line which says that if this deal is voted down the danger is that Parliament will vote through a softer Brexit (or a second referendum).

So the amendment has the ability to change the Parliamentary arithmetic – but it’s hard to say at this point how the effect on each camp balances out.

The other factor that could affect the arithmetic is the Wightman case which concerns whether the UK can unilaterally withdraw the Article 50 notice. We may not get the final decision from the CJEU before the vote next Tuesday, but the Advocate General’s opinion, which we discussed in a blog published yesterday, is that we can unilaterally revoke. Again, that emboldens remainers to vote against the deal. It also means that if MPs vote for a general election or a second referendum, and the EU does not extend the Article 50 timeframe to accommodate that (and an extension would be needed to make either option possible), we could withdraw the notice to give ourselves some breathing space. Indeed, our ability to do so may make the EU more willing to extend time under Article 50, rather than having us revoke and possibly remake the notification.

Also in terms of Parliamentary arithmetic, the three government defeats yesterday show just how bad a position the government is in without the support of the DUP.

+ posts

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.