The UK’s post-Brexit transition period expires at 11pm GMT on 31 December 2020. The UK and EU are in negotiations to agree a new treaty-based relationship before then, so that co-operation in key areas can continue in mutually beneficial ways. However, unless one or more treaties can be ratified before the end of 2020, many of the current arrangements automatically end.
This Insight explains that, although the UK Parliament normally has a statutory period to scrutinise and potentially debate any new UK-EU treaty, it won’t necessarily vote on whether to approve it. The UK Government could also reduce or remove that scrutiny period if it wished.
CRAG: The Constitutional Reform and Governance Act 2010
Treaty-making is a prerogative power. This means the UK Government, rather than Parliament, negotiates on behalf of the UK in the international arena. However, prerogative powers are exercised subject to statutory constraints.
Part 2 of the Constitutional Reform and Governance Act 2010 (CRAG) provides a limited role for Parliament in the ratification of treaties.
Treaties must be laid before Parliament
Before a treaty can be ratified, a copy must be laid before Parliament. This allows MPs and Peers to see what has been negotiated, for committees to take expert advice on its contents (should they wish), and for parliamentarians to reach an informed view on the treaty’s overall merits. At this stage it is too late to amend the treaty.
A treaty must also be accompanied by an ‘explanatory memorandum’. This explains its provisions and the Government’s reasons for pursuing ratification.
Section 20: The default process of 21 sitting days
The default rule under section 20 of CRAG is that, after a treaty has been laid, both Houses are given time to scrutinise its contents and, potentially, to object to ratification (by passing a resolution).
This period begins on the first sitting day after the treaty has been laid, and ends after the 21st sitting day. A day only counts as a sitting day if both the Commons and Lords are sitting.
A minister can extend the 21 sitting day period, but Parliament cannot force them to do so.
Can MPs and Peers block ratification?
The Lords has no power to block or delay the ratification of a treaty beyond the 21 sitting day period. If it passes a resolution objecting to ratification, the Government can proceed anyway, provided it explains why in a statement.
The Commons can in theory delay the ratification of a treaty. If it passes a resolution against ratification within the 21 sitting day window, a treaty cannot then be ratified. However, the Government can then repeatedly “reset” the 21 sitting day window to make further attempts. It does this simply by explaining in a statement why it thinks the treaty should be ratified despite the Commons’ disagreement.
Neither House has, since CRAG was passed, debated or voted on a motion objecting to the ratification of any treaty.
Crucially, CRAG doesn’t guarantee a debate or vote in either House before a treaty is ratified. MPs depend on either the Government holding a debate, or (for example) a motion being moved on a designated Opposition day. The Government has a significant degree of control over when Opposition days happen.
Is there time for ratification?
If the Government laid a UK-EU treaty on Wednesday 18 November 2020, and Parliament sat on every Monday to Thursday up to and including Christmas Eve, that treaty could be ratified from Christmas Day. It could therefore come into force at the end of transition.
If a deal were to be reached later, however, further sitting days would be needed. These could be on Fridays, Saturdays or Sundays and/or between Christmas Day and New Year’s Eve.
Section 22: “Exceptional” cases and speeding up the process
Sometimes governments want a treaty to come into force more quickly than CRAG would normally allow. CRAG allows them in “exceptional” cases to dispense with the section 20 requirements. However, this exception cannot be used if either House has already resolved against the ratification of that treaty laid under CRAG.
If the UK and EU only reached agreement on a treaty in late November or early December (for example) the waiting period could make it harder for the UK to ratify a treaty before 2021. Section 22 is one way the Government might get around that problem, but it would leave Parliament less time to scrutinise the treaty text, and could prevent a vote on the treaty itself from taking place.
Disapplying CRAG with implementing primary legislation
Another way the ratification process might be shortened is through primary legislation.
If there is a Bill implementing the UK-EU Treaty, it could provide an opportunity, if Parliament is content, to disapply CRAG. A similar arrangement was reached for the UK-EU Withdrawal Agreement in January 2020 (section 32 of the EU (Withdrawal Agreement) Act 2020). The ratification of the treaty would then depend entirely on the speed with which the Bill passed, rather than on CRAG.
Lord Frost, the Government’s chief negotiator, told the Lords EU Committee in early October that the Government “assumes” there will be primary legislation to implement “at least some of” any UK-EU treaty’s provisions in domestic law, but nothing further is yet known about this.
Could there still be debates and votes on the treaty?
Even if section 22 is invoked, or the intention is to disapply CRAG in primary legislation, there could still be prior debates in both Houses.
The Government might, for example, want to secure political approval for the treaty itself before making any attempt to legislate for its implementation.
The Government has yet to set out its proposals for a ratification process and timetable, or to indicate whether there will be a debate and vote. A timetable might only be forthcoming if and when a UK-EU treaty is agreed in principle.
Parliament’s role in ratifying treaties, House of Commons Library, February 2017.
Oral Evidence: Progress of negotiations on the future UK-EU relationship, House of Lords European Union Committee, October 2020.
About the author: Graeme Cowie is constitutional law researcher at the House of Commons Library.