After Letwin amendment & Speaker’s ruling, House turns to Withdrawal Agreement Bill

Last Thursday, after a week-long marathon of virtually non-stop negotiation prompted by the three-hour meeting of British Prime Minister Boris Johnson and Irish Taoiseach Leo Varadkar at Wirral on Oct. 10, the EU and the UK agreed on the provisions of a modified Protocol on Ireland/Northern Ireland contained within the withdrawal agreement and agreed also on a new Political Declaration setting the framework for the future relationship between the EU and UK

The intensity of the negotiation reflected the need to reach an agreement in time for it to be approved by the European Council at its meeting last Thursday, which would enable the British House of Commons to approve it before midnight on Saturday, Oct. 19. Under the terms of the European Union (Withdrawal) (No.2) Act 2019 passed in early September, if the House had not approved either a withdrawal agreement with the EU or the UK’s withdrawal without an agreement by Oct. 19, Johnson would have to send a letter to President Donald Tusk of the European Council requesting an extension of the exit date to Jan. 31, 2020. Johnson certainly didn’t want an extension — he had pledged on many occasions that the UK would leave the EU on Oct. 31 with or without a deal — and there were some in the European Council — most notably, French President Emmanuel Macron — who were opposed to granting another extension.

After the European Council approved the legally-binding withdrawal agreement along with the non-binding declaration, all eyes turned to London and the rare Saturday sitting of the House of Commons. Prognosticators tried to estimate whether, in the wake of the Democratic Unionist Party of Northern Ireland’s decision not to support the agreement because of the new provisions in regard to customs, regulatory arrangements concerning goods, and the consent of the Northern Ireland Executive and Assembly to those arrangements, the government would obtain the 320 votes necessary for approval of the agreement. The estimates varied but one thing was certain: the vote would be very close — only a handful of votes would separate the ayes from the noes.

But the vote didn’t happen. The government put forward the following motion for consideration Saturday: “That, in light of the new deal agreed with the European Union, …. this House approves the negotiated withdrawal agreement…and the framework for the future relationship…as well as a Declaration by Her Majesty’s Government …concerning the operation of the Democratic consent in Northern Ireland provision [Article 18] of the Protocol.” But there were fears among many in the House — even among some who supported the agreement — that, even if the agreement were approved on Saturday, as a result of which Johnson would not be required to request an extension, it was nevertheless possible the UK might leave the EU on Oct. 31 without an agreement, either because of delays in enacting the implementing legislation or because some hardline Brexiters, disenchanted with the deal and concerned for their DUP friends, might block passage of the implementing legislation. Approval of the agreement was obviously important. But it wouldn’t mean anything, legally speaking, unless and until the implementing legislation had been approved and had taken effect.

On Saturday, a cross-party group of MPs led by Sir Oliver Letwin, one of the 21 Conservative MPs thrown out of the party by Johnson after they voted for the bill that became the European Union (Withdrawal) (No. 2) Act 2019, along with Hilary Benn, a Labour MP who had led the group that produced the bill that became that Act, Jo Swinson, the leader of the Liberal Democrats, and Philip Hammond, Theresa May’s Chancellor of the Exchequer and, like Letwin, a Conservative until Johnson threw him out for voting in favor of the Benn bill, put forward an amendment to the government’s motion that deleted most of it and said instead: “That, in light of the new deal agreed with the European Union,…this House has considered the matter but withholds approval unless and until implementing legislation is passed.”

The vote on the Letwin amendment was 322 in favor and 306 opposed. Those supporting it included 231 of the 237 Labour MPs who voted, all 35 SNP MPs, all 19 Liberal Democrat MPs, 17 of the 34 Independent MPs who voted, all ten DUP MPs, all five Independent Group for Change MPs, all four Plaid Cymru MPs and the lone Green MP. Voting against it were all 283 Conservative MPs who voted, 17 Independent MPs and six Labour MPs. Interestingly, nine of the 21 former Conservative, now Independent, MPs voted in favor, meaning against the government, including, in addition to Letwin and Hammond, David Gauke, a former Justice Minister; Dominic Grieve, a former Attorney General, Kenneth Clarke, the “father of the House” (i.e., the longest-serving MP), and Sir Nicholas Soames, a former minister and Winston Churchill’s grandson, while 10 voted with the government and one abstained. In the wake of the vote on the Letwin amendment, the government didn’t proceed to a vote on the amended motion.

As a result, on Saturday evening Johnson sent Tusk a copy of the two-paragraph letter, drafted by those who wrote the Benn bill and included as a Schedule in the European Union (Withdrawal) (No. 2) Act 2019, requesting the three-month extension of the exit date he was required by the Act to request in the event the House had not approved either a withdrawal agreement or withdrawal without an agreement by midnight on Oct. 19. He also sent a longer, less impersonal letter, addressed “Dear Donald” and copied to all of the members of the European Council, in which he expressed his deep gratitude to Tusk and European Commission President Jean-Claude Juncker for their statesmanship and statecraft and to the EU’s chief Brexit negotiator Michel Barnier and his team for their imagination and diplomacy. In the letter, he made it clear the government would press ahead with ratification and introduce the necessary implementing legislation this week, expressed his confidence the process will be completed by Oct. 31, but offered to come and answer any questions on the position of the government and its progress in the ratification process if Tusk decides it is necessary to convene another European Council meeting.

As the Saturday sitting of the House concluded, Jacob Rees-Mogg, the Leader of the House, announced the government would bring forward another motion to approve the withdrawal agreement yesterday. The motion stated: “That this house approves for the purposes of section 13(1)(b) of the European Union (Withdrawal) Act 2018 the following documents laid before the House on 19 October 2019,” and listed the same three documents mentioned in the motion before the House on Saturday — the negotiated withdrawal agreement, the framework for the future relationship, and the unilateral declaration by the UK on the Democratic consent in Northern Ireland provision of the Protocol.

However, it was not at all clear the government would in fact be able to bring the motion forward for a vote yesterday; there is a long-standing parliamentary convention dating back to 1604 that the same question can’t be brought forward for a vote a second time in the same parliamentary session. Whether a motion constitutes the same question as one that has been previously considered in a session is a matter that is decided by the Speaker of the House. Addressing the House yesterday, Speaker John Bercow said whether the motion could be brought forward depended on two issues — whether it was the same in substance as the one that was decided Saturday and whether the circumstances were substantially the same as those that existed on Saturday. He said that, after studying the matter, he had concluded the motion brought yesterday was the same in substance as the one considered on Saturday and that, notwithstanding Johnson’s subsequent request for an extension, the circumstances were substantially the same as those that existed Saturday. Therefore, he ruled the motion would not be debated.   

Following that decision, the government published and conducted the first reading of the Withdrawal Agreement Bill (WAB). The WAB is a 110-page document that, if approved, will give legal effect to all of the provisions in the nearly 600-page withdrawal agreement negotiated by the UK and EU that includes not only the 63-page modified Protocol on Ireland/Northern Ireland but also all of the other provisions related to the UK’s departure from the EU, including, among others, the provisions pertaining to the rights of EU citizens in the UK and British citizens in the EU and those pertaining to the settlement of all future financial obligations of the UK to the EU. The government, desperate to leave the EU on Oct. 31, notwithstanding Saturday’s mandated request for an extension, has announced an exceptionally compressed schedule for consideration of the WAB. The second reading will take place today. If the House rejects the bill, the process is finished and there would in all likelihood be an election. If the House approves the bill on second reading, MPs will be asked to approve the programme motion, which will set out a highly compressed timetable for consideration of the specific provisions of the WAB. It’s expected the government will propose that all stages of the legislative process, including the committee stage, in which the WAB can be amended, the report stage, and the third reading, at which the bill as amended would either be approved or rejected, be completed this week. If approved, the amended WAB would then go to the House of Lords, where it could also be amended, and, if amended, would come back to the House of Commons and then return to the House of Lords with the latter’s amendments either accepted or rejected.

Many MPs have objected strenuously to the highly-compressed schedule for consideration of one of the most important pieces of legislation to ever come before the House. If the WAB is approved today in the second reading — something that’s by no means assured — it wouldn’t be surprising if the government were forced to modify the programme motion, although Johnson has said if that the government’s timetable is not approved he’ll withdraw the bill and call an election. But if that motion, whether modified or not, is approved, the legislative process will then proceed through the committee and report stages to the decisive third reading, at which the WAB, and with it the UK’s negotiated withdrawal from the EU, will be approved or rejected. If approved, the bill, perhaps amended, will then go to the House of Lords, where it can be amended and, if amended, would then come back to the House of Commons.

David R. Cameron is a professor of political science and director of the MacMillan Center’s Program in European Union Studies.