Since the UK Government began negotiations over the withdrawal agreement under Article 50, questions have been raised about how Parliament will approve and implement the final agreement.

The Government’s stated position has long been that Parliament will have the opportunity to approve the final agreement through a motion “to be voted on by both Houses of Parliament before it is concluded”. On 13 December 2017 David Davis MP, the Secretary of State for Exiting the European Union, gave details of the procedures for both the approval and implementation of EU Exit Agreements.

He explained that the approval process is separate from the process of implementing the agreement through primary and secondary legislation. This post aims to explain the relationship between approving and implementing the withdrawal agreement and the role that Parliament will play once the negotiations are concluded.

Approving the withdrawal agreement

David Davis proposed that the process of approving the withdrawal agreement will take the form of a resolution in both Houses of Parliament. This resolution will cover “both the Withdrawal Agreement and the terms for our future relationship”. The Supreme Court noted in Miller in January 2017 that such a resolution does not have any legislative effect, but is nevertheless “an important political act”.

One agreement or two?

David Davis’s statement indicated that the resolution would cover at least two agreements. The Government expects that there will be more than one agreement secured through the Article 50 process: the withdrawal agreement itself (which will contain detailed provisions on citizens’ rights, transition, the exit bill and Ireland) and a framework for the future relationship. It is likely that the motion on the resolution will ask each House to approve both agreements together through a single decision.

When will the House be asked to approve the agreement?

The resolution would be put to the House “as soon as possible” after the agreements are concluded, according to David Davis. The amount of time between the publication of the two agreements and a decision on the resolution will have implications for how the agreements are scrutinised in the Commons. There might not be time for select committees to take evidence and comment on the agreements prior to the vote for example. If passed in the Commons, the resolution would then be put to the House of Lords.

A separate process under existing law

This proposed parliamentary approval process for the withdrawal agreement is separate from the procedure specified by the Constitutional Reform and Governance Act 2010 (CRAG). The procedure set out in CRAG enables the House of Commons, by passing resolutions, to indefinitely block the ratification of a treaty. The statement by David Davis acknowledged that the withdrawal agreement could be blocked by this procedure.

Implementing the withdrawal agreement

Parliament must legislate to implement the withdrawal agreement. Only then can it be ratified and come into force in domestic law. David Davis explained that the Government intends to do this, if the proposed resolution is passed in both Houses, through a “Withdrawal Agreement and Implementation Bill” (WAI Bill). This implies that the introduction of the WAI Bill is conditional on both Houses granting approval through the resolution discussed above.

The WAI Bill would need to be passed before exit day 29 March 2019. If it is not passed by then, any provisions in the withdrawal agreement that need to be given legal effect, like transitional arrangements or citizens’ rights, would have no legal basis.

This is because the UK has a ‘dualist system’ in which treaties do not automatically become part of domestic law. It is a constitutional requirement that any treaty obligation that needs to have effect in domestic law and is not covered by existing law in the UK will need legislation to implement it.

Because of this requirement to implement elements of the agreement before exit day, the scrutiny of the WAI Bill, which will be a major constitutional bill, will in practice be part of the parliamentary process of approving, as well as implementing, the withdrawal agreement.

What about the “Grieve amendment” to the EU (Withdrawal) Bill?

On 13 December, the House Commons voted for Dominic Grieve’s amendment to clause 9 of the EU (Withdrawal) Bill to limit the Government’s power to implement the withdrawal agreement. The original version of clause 9 would have enabled the Government to implement the withdrawal agreement in domestic law irrespective of whether Parliament had granted its approval to the content of the agreement through a resolution. David Davis’s statement on the morning of 13 December had offered a compromise by committing the Government to only implementing the agreement through clause 9 of the EUW Bill after a resolution had been passed by both Houses. This was not seen as sufficient by those who supported the amendment.

The relationship between approval and implementation: blurred lines

The Government’s announcement that they will introduce the WAI Bill has blurred the boundary between the approval and the implementation processes. This explains why many associate the Grieve amendment with the process of Parliament approving the withdrawal agreement. In fact, Grieve’s amendment means that the WAI Bill, and therefore the resolution to approve the agreement that will precede it, must be enacted before clause 9 of the EUW Bill can be used to implement the withdrawal agreement.

The amendment would prevent the Government using secondary legislation to implement the agreement in the period after the resolution to approve the agreement has been passed in both Houses but before the WAI Bill has received Royal Assent. In this sense Grieve’s amendment is principally concerned with how and when the agreement is implemented rather than how it is approved.

Historical parallels

When the UK joined what was then the European Economic Community, Parliament had to enact the European Communities Act 1972 before the UK could legally and constitutionally ratify the Treaty of Rome and join the EEC. This was despite the fact that each House had already voted on a motion to approve the UK’s Membership of the EEC.

Edward Heath, the then Prime Minister, made the second reading of the ECA 1972 a confidence vote. He told the House of Commons:

If this House will not agree to the Second Reading tonight and so refuses to give legislative effect to its own decision of principle, taken by a vast majority less than four months ago, my colleagues and I are unanimous that in these circumstances this Parliament cannot sensibly continue. (17 February 1972 col 752)

The Government won the vote by a majority of eight. The Bill was passed without amendment.

Since the Fixed-term Parliaments Act 2011, a second reading vote cannot be turned into a confidence vote in the same way, although in practice the Government would still be able to table a motion calling for an early election if it chose to.

Conclusion: a number of meaningful votes

There will be a number of “meaningful votes” between the publication of the agreement(s), likely to be in Autumn 2018, and exit day on 29 March 2019. If the resolution on the withdrawal agreements is passed in both Houses, there will then be a series of important votes on the WAI Bill, which will provide both Houses of Parliament the opportunity to scrutinise how the withdrawal agreement is implemented. Either House could also use the CRAG procedure to object to ratification of the agreement, and in the case of the Commons, indefinitely block it.

The vote on the resolution to approve both the withdrawal agreement and the framework agreement on the terms for the UK’s future relationship with the EU will be of vast significance. The substance of the framework agreement on the future relationship could be the principal focus of debate before the vote on the resolution, especially as the withdrawal agreement itself will be scrutinised during the passage of the WAI Bill. There will be limited scope for amending the WAI Bill, as amendments cannot seek to change the text of the agreement itself or, presumably, the political declaration on future relations.

This planned vote on a resolution will enable Parliament to give its view on the substance of the long-term relationship between the UK and the EU, which is expected to come into force after the end of the transitional period. If Parliament did not pass either the resolution approving the agreements or the WAI Bill, it is possible that on 29 March 2019 the UK could leave the EU with no withdrawal agreement.

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