11/01/2019 08:00 GMT | Updated 11/01/2019 15:03 GMT

No-Deal Brexit Can't Be Wished Away – If MPs Really Want To Stop It, Here's How

There's a Parliamentary majority against no-deal, but it remains the default Brexit outcome – here's how Parliament may force the Government to try and prevent no deal

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Events in the Commons this week have shown that there is, as long predicted, a parliamentary majority against no deal. But it is important not to overstate Parliament’s ability to stop no deal from happening. Parliament alone cannot prevent the UK leaving on 29 March, and a no-deal Brexit remains the default position in international and domestic law. Only the Government, with Parliament’s support, can take no deal off the table.

There are only three ways no deal can be ruled out, all of which must be initiated by the Government. First, ministers can bring forward a deal with the EU that commands parliamentary support and is subsequently ratified by both sides and implemented into domestic law through an Act of Parliament. Second, Article 50 can be extended by unanimous agreement of the UK and EU27, with domestic law also needing to be amended to reflect the delay in departure. Third, the UK can unilaterally revoke Article 50, although the Government may need parliamentary authority to do so, and in any case will need to amend no deal domestic legislation to prevent it taking effect.

The real question is whether Parliament can force the Government to try and prevent no deal. Clearly, MPs are willing to put pressure on the Government—and there are several different means through which they can do this.   

First, MPs could try and table amendments to bills that deal with preparations for no deal—as the Commons did on Tuesday, passing an amendment to the Finance Bill that mean the Government’s use of some specific no deal powers will need express parliamentary approval. This showed Parliament is willing to hold some of the Government’s no deal preparations hostage in an attempt to force it into avoiding a no deal. While this specific amendment will have a relatively limited impact, Parliament could yet take aim at the Estimates, which authorise changes to departmental spending – usually dealt with in February.

Second, the Government still has nine Brexit bills to pass, including at least three necessary for no deal. The Trade, Agriculture and Fisheries Bills are all susceptible to amendments, which would be binding on the Government (if the bills pass). This could see Parliament put further conditions on no deal powers- tightening the screws even more. Parliament could also choose to delay or vote against some of the hundreds of pieces of secondary legislation required to ensure UK law continues to function in a no deal. But while this would increase the political cost of no deal, it still would not change the fact that no deal is the current default setting. 

Third, MPs could table amendments to the meaningful vote motion on the Government’s deal, or the ‘next steps motion’ Ministers must lay before Parliament if they lose the first vote. On Wednesday, MPs changed the timetable for the latter, in part so they are less dependent on the opportunities for debate provided by the Government. Dominic Grieve’s amendment to the meaningful vote business motion, controversially selected for a vote, shortened the amount of time the Government has to return to Parliament and outline its next steps if it loses first time. Clearly, Parliament is unwilling to allow the Government to run down the clock towards no deal.

Fourthly, beyond the meaningful vote, MPs can try and find more opportunities for debate. For instance, they could make use of Backbench Business and Opposition Day debates, although the Government could frustrate these by refusing to schedule parliamentary time. Urgent questions and Emergency Debates could also be used, with the Speaker, rather than the Government, deciding whether to grant time- and tending to do so. In any case, such debates would not bind the Government to prevent no deal.

Finally, if none of these options prove effective, MPs could really hold the ministers’ feet to the fire by tabling a vote of no confidence in the Government under the Fixed-term Parliaments Act. The Government would then have 14 days to regain enough support to win a motion of confidence, or face a general election or alternative Government. During the 14-day period, MPs could make their support conditional on avoiding no deal. However, the consequences of holding a no confidence vote are uncertain and holding one will not in itself prevent a no deal.

Parliament is asserting its role in the Brexit process, but the alternatives to no deal require both the Government and Parliament to act in tandem. The Government needs to take the initiative and attempt to change the default, and Parliament needs to lend its support to make any alternative effective. Parliament is beginning to put pressure on the Government to change course, but it has no guarantee it will prove effective.

Joe Marshall is a researcher at the Institute for Government