Clause 9: Implementing the withdrawal agreement

(1) A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day.

(2) Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).

(3) But regulations under this section may not—

(a) impose or increase taxation,

(b) make retrospective provision,

(c) create a relevant criminal offence, or

(d) amend, repeal or revoke the Human Rights Act 1998 or any
subordinate legislation made under it.

(4) No regulations may be made under this section after exit day.

Amendment 7, in clause 9, page 6, line 45, at end insert –

“, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union.”

– – – – – – – – – –

Let’s be clear about what the Commons did and didn’t vote for yesterday evening, when the Government was defeated for the first time on the EU Withdrawal Bill.  The sequence of events going forward will be as follows.

If a deal is agreed between the Government and the EU, Ministers pledge that it will be subject to a “meaningful vote” in the Commons.  They presumably intend this to be a take-it-or-leave-it one, but the motion in question will be amendable.  This raises the possibility that pro-EU MPs will indeed try to amend the motion both in order to send Theresa May back to Brussels to get a better deal, and to seek an extension of the Article 50 process under the terms set out within it.  It might be in these circumstances that the Prime Minister would declare herself opposed to such amendments, and to declare the vote on them to be a matter of confidence.

But either way, readers will see from the text of Clause Nine of the Bill above, and of Dominic Grieve’s successful amendment Seven (also above), which the Government opposed and on which it was defeated, that neither had anything to do with the “meaningful vote”.  Both the clause and the amendment were concerned with what will happen after a take-it-or-leave-it “meaningful vote” is passed.

In these circumstances, the Government will, prior to the date of Brexit, introduce a bill to approve, as Grieve’s amendment put it, “the final terms of withdrawal of the United Kingdom from the European Union”.  To reiterate: such a Bill will not be introduced as a consequence of the amendment being carried.  Ministers were committed to bring one forward in any event.

The amendment, rather, will prevent the Government from moving the statutory instruments referred to in Clause Nine until after the Bill setting out the final terms has been passed.  Ministers were committed to not moving these SIs until after the “meaningful vote”, a position they took recently as a concession to Grieve.  This wasn’t good enough for him; he wants the final terms Bill passed first.  The Government conceded very late, during the debate on Grieve’s amendment, that a commitment not to move the statutory instruments in question until after the final terms Bill is passed would be written on to the face of this present EU Withdrawal Bill.  Grieve responded that this was “too little, too late” – and his amendment was carried

Five points follow.

First, one must grasp at the start that some Remain and Leave supporters outside Parliament have a mutual and self-reinforcing interest in talking up the significance of any Government defeat on the withdrawal bill.  These Remainers yearn to believe that defeats will bring about a soft Brexit – or perhaps halt it altogether.  And these Leavers seek to see pro-EU Conservative MPs who oppose the Government disciplined, or even deselected.

Second, however, readers will see that Grieve’s amendment does not halt Brexit. It does not change the date of Brexit.  It does not prescribe a soft Brexit.  It does not provide a means by which the Commons can reject any final deal that the Government and the EU agree, and seek to send Theresa May back to Brussels to negotiate a new one.  It does not impose a Bill about any final deal on the Government; Ministers were committed to one in any event, as we say.  It does not enshrine a “meaningful vote” in the Bill (contrary to the implication of some reporting today).  So talk of Parliament “taking back control” is exaggerated.

Third, all the amendment does is to constrain the Government on the timing of SIs concerning Brexit.  It is not clear how many of these Ministers intend to introduce, or what their effect will be.  But both they and Brexiteer backbenchers agree that, although Grieve’s amendment makes a smooth Brexit less easy to achieve, it is unlikely to produce a chaotic one.  When the Prime Minister suggested otherwise at PMQs yesterday, she was making a tactical gambit to frighten off potential Tory rebels.

Fourth, it follows that although the Prime Minister will indeed be embarrassed by the Government’s defeat when she arrives at the EU summit today, its effect on her negotiating stance is likely to be limited.  The Commission and the EU27 already know, regardless of Grieve’s amendment, that her position is fragile.  But the main threat to any deal is not his amendment, but the “meaningful vote” – and the former, as we have seen, is nothing to do with the latter.  Claims that those pro-EU Conservative rebels have dynamited the Government’s negotiating position are exaggerated.

Fifth and finally, it therefore also follows that May, Ministers, the Conservative Party and Tory Brexiteers should keep calm and carry on.  It may well be that Grieve and his supporters, having tasted blood for the first time, will want more next week, when the Brexit leaving date will be debated.  But overstating the effect of the Government’s defeat yesterday, and calling for deselections of “mutineers” and “saboteurs”, only puts more wind in the sails of those extra-Parliamentary remainers – the A.C.Graylings of this world, whose Twitter musings are such a daily delight.  Local Party activists will take their own view, but whips and CCHQ should keep out of it.  Jacob Rees-Mogg rightly said yesterday that pro-Brexit Tory MPs, some of whom rebelled very frequently in their time, should be very polite indeed about the motives of their pro-EU colleagues.

Grieve’s amendment may be overturned at Report Stage.  The Government could perhaps, as Oliver Letwin and Rees-Mogg both advised during yesterday’s debate, seek to remove Clause Nine from the Bill altogether.  But whatever it does, it needs to review its Bill management.  DExEU and the whips have coped well to date.  None the less, there are questions to be asked about why yesterday’s concession was offered so late, and whether it is sustainable for a Chief Whip to threaten to sue some of his colleagues.