The Commons votes on January 29 marked the conclusion of the meaningful vote process. Ever since we have been in limbo.
At the very moment when MPs and the government are searching for a way of reaching a consensus to break the Brexit deadlock, it appears our established constitutional procedures, and the ones we have created to deal with Brexit, have failed to rise to the occasion.
Our adversarial system of politics does not appear to be equipped to generate the political consensus needed to give effect to the constitutional change that the UK voted for on June 23, 2016, as I have argued alongside Alan Wager and Matthew Bevington in the latest UK in a Changing Europe and Bingham Centre for the Rule of Law report Resolving the Brexit impasse.
Even if the deal is approved by the Commons through a second meaningful vote before exit day, it is hard to see how the process we are observing can create sustainable long-term constitutional arrangements.
In many constitutional democracies around the world, constitutional change can only be achieved through super-majorities in the national legislatures.
The UK’s constitutional arrangements are famously flexible, and the Brexit deal may only need a bare Commons majority to pass the meaningful vote, but the general principle that major constitutional change should be treated differently is still relevant.
If the deal passes the meaningful vote, parliament will have to scrutinise the EU (Withdrawal Agreement) Bill, which is a more constitutionally significant process than the meaningful vote itself.
It is only when that bill is published that the full extent of the constitutional implications of the withdrawal agreement will become clear.
The bill will have to enable UK courts to give effect to citizens’ rights protections and also provide legal arrangements to enable the backstop to be implemented if it is needed.
The government may also use the bill to fulfil promises to enable the Commons to play a greater role in the negotiations on the future relationship. To get clauses on these matters through parliament will require a sustainable coalition.
A political pact to allow the bill to be fast-tracked through parliament may allow the government to meet the March 29 deadline, but it would not allow the constitutional implications of the withdrawal agreement to be evaluated, debated and understood.
If the withdrawal agreement is to provide the cornerstone of our relationship with the EU, and create the basic rules for how the Commons will scrutinise the negotiations on the future relationship, the robustness of the process of enacting the bill should match its significance.
The meaningful vote process, which was forged in a last-minute compromise between Conservative rebels and the government last June, was designed to ensure that the government would not be able to run down the clock before March 29.
However, the past weeks have shown that amendable motions in the Commons do not amount to an adequate process of constitutional change.
If and when parliament and the government negotiate the arrangements that will apply for the approval and implementation of the future relationship, or indeed for other forms of constitutional changes, let’s hope that the end result is more than an amendable motion.
By Dr Jack Simson Caird, senior research fellow at the Bingham Centre for the Rule of Law.