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Parliament’s vote on the Withdrawal Agreement negotiated between the UK and the EU

The Government’s Position

On 17 January 2017, the Prime Minister announced in her Lancaster House speech that the Government would put “the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament, before it comes into force”. The Government also confirmed that the votes in Parliament would be held before the European Parliament votes on the Withdrawal Agreement under the terms required by Article 50 TEU.

On 13 December 2017, the Government announced that the proposed votes on the agreements, expected in Autumn 2018, would have the following features:

  • The votes would be held on the same motion in both Houses of Parliament;
  • The motion would ask each House to approve both the Withdrawal Agreement on the terms of exit from the European Union (a legally binding treaty) and the Political Declaration on the Framework of the Future Relationship (a political declaration attached to the Withdrawal Agreement);
  • The Government would only introduce the Withdrawal and Implementation Bill (the WAI Bill) after the motion was passed in both Houses;
  • The votes would be held “as soon as possible” after the negotiations are concluded.

The Government has also said that if the Commons fails to approve the agreements, the UK will leave the EU on 29 March 2019 without a deal. More detail on the Government’s position on giving Parliament a meaningful vote can be found here.

The EU (Withdrawal) Bill

The House of Lords debated Parliament’s role in April, resulting in two widely publicised amendments to the EU (Withdrawal) Bill that will potentially change the role Parliament will play in the UK leaving the EU.

First, on 18 April, Lord Kerr’s amendment to clause 1 of the EU (Withdrawal) Bill passed with 348 votes for and 225 votes against – a defeat for the Government. This vote sent the bill back to the House of Commons with the following text:

(3) The condition in this subsection is that, by 31 October 2018, a Minister of the Crown has laid before both Houses of Parliament a statement outlining the steps taken in negotiations under Article 50(2) of the Treaty on European Union to negotiate, as part of the framework for the United Kingdom’s future relationship with the European Union, an arrangement which enables the United Kingdom to continue participating in a customs union with the European Union.

Then on 30 April, Day 4 of Report Stage, Viscount Hailsham proposed the following amendment (number 49), to precede clause 9 of the EU (Withdrawal) Bill.  It passed with 335 votes for and 244 votes against, resulting in the adoption of the following text:

Parliamentary approval of the outcome of negotiations with the European Union

(5) Her Majesty’s Government must follow any direction in relation to the negotiations under Article 50(2) of the Treaty on European Union which has been— (a) approved by a resolution of the House of Commons, and (b) subject to the consideration of a motion in the House of Lords.

If they are adopted by the Commons, these amendments mean that the Government will then need to account to Parliament for its position in the Brexit negotiations. They could also mean that the Government may need to change its negotiating position in light of Parliamentary instruction.

Domestically, the significance of these proposed amendments cannot be understated.  They propose restructuring the relationship between the Government and Parliament in international relations. Historically, all international negotiations have been the sole arena of the executive under the royal prerogative. Through these amendments, Parliament could make clear that it wishes to steer the directions of these negotiations, not unlike how the European Parliament carries out its information and veto functions vis-à-vis the Council and the Commission in EU international relations. This would set a precedent significantly expanding the role Parliament currently has in relation to treaties, as set up by the Constitutional Reform and Governance Act 2010.

Effect of the Parliamentary vote

The EU’s Role

The overall impact of these amendments is not solely dependent on their adoption by the House of Commons. Parliament can in principle instruct the Government to pursue certain ends in the negotiations via these amendments, and the pressure created by such instructions could have an effect on the EU’s willingness to accommodate those ends.

However, reports that these amendments ‘effectively take… No Deal off table’ and that Parliament is now forcing the Government to ‘negotiate a deal which keeps Britain in the customs union’ are somewhat misleading: while Parliamentary pressure to pursue a particular outcome is likely to work as leverage in negotiations with the EU, the EU’s negotiating position is not dictated by the UK Parliament.

In other words, while these amendments have the potential to give Parliament a significantly enhanced role in shaping the Brexit negotiations – it is too much to say that they would result in Parliament being able to control the outcome of the Brexit negotiations.

Effects of Possible Parliamentary Instructions

Parliament can instruct the Government however it sees fit, in light of its sovereignty. Different instructions, however, would have the Government returning to the EU with different requests.

If Parliament instructs the Government to seek specific amendments to either the Withdrawal Agreement or the Political Declaration on the future relationship, this would result in the UK simply needing to reopen negotiations under the Article 50 TEU process, if there is time remaining under Article 50 TEU for further negotiations. This would require agreement to reopen negotiations from the EU, but there are no specific Treaty provisions governing the EU’s ability to ‘continue’ existing negotiations.

If Parliament instructs the Government to remain in the EU, and thus revoke Article 50 TEU, or if there is not enough time left before the end of the two-year Article 50 TEU negotiating period to conclude further talks, the Government’s task becomes more complicated. It is not clear from the text of Article 50 TEU if notice can be revoked unilaterally. Some argue it can be revoked unilaterally, which would require a Parliamentary instruction to revoke Article 50 TEU and the Government acting on that instruction. Others argue that, much like asking for an extension to the Article 50 TEU negotiating period, a revocation of the notice the leave the EU will require unanimous agreement from the EU27. The only agreed point among academic commentators is that only the EU’s Court of Justice would be able to give a firm answer to questions of the revocability of Article 50 TEU.

You can read the petition, and the Government’s response, on the e-petitions website.

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