Much of this debate has focused on the process by which the Commons would decide whether to approve the Brexit deal: the meaningful vote.
The rejection of the Brexit deal
In the months before the deal was published, there was an assumption that the meaningful vote could be used to enable MPs to engage in a negotiation over the future relationship with the EU. The negotiation over the Withdrawal Agreement could not
be re-opened, but the Framework on the Future Relationship – which under the terms of s 13 of the EU (Withdrawal) Act 2018 also had to be approved by the Commons – was not legally binding. As a result, it was thought that an amendment
proposing a closer long-term economic relationship with the EU could, if it appeared that a majority of MPs might support it, form the basis of some negotiations with the government.
Once the deal was published in November 2018, such was the scale of opposition from MPs on all sides of the Brexit debate that those negotiations never happened. Instead, when the first meaningful vote finally arrived on 15 January 2019 (after the
government’s tactical last-minute delay of over a month) it resembled more of a ceremonial execution than a political negotiation.
The only amendment which had a chance of being approved, tabled by Hilary Benn, was withdrawn at the last minute: ‘It is vital that we now get the clearest expression of view from the house on the government’s deal,’ he explained
on Twitter. Three of the four amendments selected by the Speaker were also withdrawn. The only amendment voted upon by the Commons, tabled by John Baron, stated that the Withdrawal Agreement should be amended to allow the UK to unilaterally leave
the backstop. The Commons overwhelmingly rejected the Baron amendment by 600 to 24.
Next, the Commons voted on the government’s motion on the deal and delivered a historic margin of defeat: 202 MPs voted for the deal and 432 against (a margin of 230). The decision had two direct constitutional consequences: first, the government
could not ratify the Withdrawal Agreement; and second, it triggered a legal requirement that the government should make a statement setting out its response and that the Commons should debate that response.
The vote of confidence
Immediately after the rejection of the deal, Jeremy Corbyn as Leader of the Opposition tabled a statutory ‘vote of no confidence’ in the government. This vote took place the following evening on 16 January. Theresa May won the no-confidence
vote with a majority of 19 (325 to 306). It is worth noting that had she lost, under the terms of the Fixed-term Parliaments Act 2011, this would have activated a 14-day period: where, unless the Commons voted to say that they had confidence in
the government, a general election would have been triggered.
The effect of these two days of debate in the Commons was an extraordinary constitutional crisis. The government of the day, which is a minority administration reliant on a confidence and supply agreement with the Democratic Unionist Party, had its
major policy overwhelmingly rejected by MPs. Prior to the enactment of the Fixed-term Parliaments Act 2011, such a defeat would have been considered a matter of confidence and would almost certainly have led to the Prime Minister’s resignation.
The effect of the 2011 Act was such that the Commons and the government effectively reached a stalemate. The problem is that this is unlike other political stalemates: the ticking clock of Article 50 means that this one could lead to dramatic,
potentially chaotic, constitutional and legal changes in a relatively short period of time.
The post-rejection process
As a result of the controversial amendment to the Business of the House Order made on 9 January (in which the Speaker allowed an amendment to an order which according to the rules of the Commons should not have been amendable), the government was
obliged to table a motion under s 13 of the EU (Withdrawal) Act within three sitting days.
On 21 January, as required by the EU (Withdrawal) Act 2018, the Prime Minister made a statement outlining
how the government intended to proceed after rejection of the deal. Theresa May’s statement concluded with three key changes: a more flexible and inclusive approach to Parliamentary engagement regarding the negotiations on the future relationship
with the EU; more robust assurances on workers’ rights and the environment; and further engagement with concerns over the Protocol for Ireland and Northern Ireland.
"Unlike other political stalemates: the ticking clock of Article 50 means that this one could lead to dramatic, potentially chaotic, constitutional and legal changes in a relatively short period of time."
On 29 January, the House of Commons had the opportunity to give its verdict on the government’s response through an amendable motion on the Prime Minister’s statement. The Commons opted to reject two notable amendments (from Dominic Grieve
and Yvette Cooper) which would have enabled the Commons to have more control over the parliamentary timetable before exit day. The Commons accepted two amendments. The first, tabled by Caroline Spelman, sought to rule out leaving the EU without
a deal. Unlike the Cooper amendment, the Spelman amendment did not seek to provide any procedural means to enable the Commons to demand an extension. The second, tabled by Graham Brady and supported by the government, was undoubtedly the most
significant and sought to require that the Northern Ireland backstop ‘be replaced with alternative arrangements to avoid a hard border’.
It is hard to know what to make of the Commons decision to approve the Brady amendment (317 to 301). For the government it is positive in that it appeared to deliver what they wanted: a message to take to the EU as to what would enable the deal to
be approved. However, since November 2018, the EU and the UK government have maintained that changes to the Withdrawal Agreement were not possible. Further, the substance of the amendment is not particularly clear.
In a sense it appeared that in voting for the Spelman and the Brady amendment, MPs opted to pass responsibility onto the government and the EU to find a way through the deadlock. If the UK and EU do manage to agree something, and it sails through
the Commons, then history will look favourably on the Commons’ decisions on 29 January. However, if the deal fails to pass the second attempt at the meaningful vote (or if a no deal Brexit occurs on 29 March) the Commons could live to regret
its decision not to take the opportunity for greater control of the timetable.
Those who opposed the Grieve and the Cooper amendments argued that they would have upended significant elements of the UK’s constitutional order, namely: the right of the government to control the Commons’ timetable; and the right to propose
legislation. However, in the context of a minority government and constitutional deadlock, it might be argued that giving MPs greater opportunity to debate and decide the way forward may well have been a better solution.