This Insight refers to the previous European Union (Withdrawal Agreement) Bill (October 2019). It does not relate to the bill presented to Parliament on 19 December 2019. Readers should be aware that there are significant differences between the two bills.
The EU (Withdrawal Agreement) Bill (the ‘WAB’) does not just deal with the ratification and implementation of the negotiated Withdrawal Agreement between the UK Government and the European Union. It also makes arrangements for what Parliament’s role should be in the next stage of the Brexit process: the securing of a long-term political, trade, and security relationship with the EU.
This Insight explains what role the Bill proposes to give Parliament in this regard. It is a different role from that which Parliament has:
- for treaties, generally under Part 2 of the Constitutional Reform and Governance Act 2010(‘CRAG’); and
- in the approval of the Withdrawal Agreement, under section 13 of the EU (Withdrawal) Act 2018 (‘the 2018 Act’).
The main clause in the WAB setting out Parliament’s role in the future relationship negotiations is clause 31. It inserts section 13B to the 2018 Act.
Parliamentary approval of negotiating objectives
The WAB’s proposals for Parliament’s role in the future relationship negotiations differ markedly from those in the 2018 Act. One major difference is that the UK Government would not be allowed even to begin negotiations on a future relationship treaty without the explicit approval of the House of Commons. This appears to give Parliament (in that regard) more of a role than it gave to itself when triggering Article 50 under the EU (Notification of Withdrawal) Act 2017. No such approval for objectives existed at all when the negotiations on the exit deal itself began.
An initial Government-proposed “statement on objectives” must be approved by the House of Commons. The Government can revise its negotiating objectives but must first secure MPs’ approval on each occasion. Any statement of objectives legally must be consistent with the terms of the Framework for the Future Relationship agreed by the UK Government and the EU on 17 October 2019.
Government reporting on progress in negotiations
Unlike with the Withdrawal Agreement negotiations, the Government must also report quarterly after the first statement on objectives has been approved. This is to update Parliament on the progress it has made towards a future relationship treaty.
These updates must appraise how closely such a treaty appears likely to be consistent with the statement of objectives, and flag-up any areas where the two are likely to be incompatible. This presumably allows Ministers regular intervals at which they can ask the House of Commons to revise the statement on objectives where required.
This quarterly reporting mechanism plausibly enables Parliament (though mainly the Commons) to scrutinise and respond to key developments in the negotiations. However it does not, as such, allow MPs to take the initiative in forcing a change of the Government’s negotiating objectives, since the moving of a motion to approve a revised statement of objectives must be done by a Minister.
If a Minister were to move an approval motion, however, nothing in this Bill would prevent MPs from amending or rejecting that motion to seek politically to influence the Government’s policy and approach.
Ratification of future relationship treaties
If the UK Government reaches political agreement on a treaty, the “principal purpose” of which concerns the UK’s future relationship with the EU, it must undertake a Parliamentary approval process before ratifying the treaty. Section 13B(10) as inserted by the WAB stipulates that this process takes place instead of the one in Part 2 of CRAG.
There are four essential requirements that must be met before such a treaty can be ratified:
- a Government statement that political agreement has been reached
- the laying of the negotiated treaty before Parliament
- approval of the treaty by the Commons on a motion moved by a Minister; and
- the absence of a Lords resolution objecting to the treaty within 14 sitting days, or a Ministerial statement providing that the treaty should nevertheless be ratified.
This combines elements of the CRAG and 2018 Act processes. In one key respect it is more like the 2018 Act: it requires the treaty to be proactively approved by MPs rather than for them just to “not object” (as is the case under CRAG). However, in other respects it is more like CRAG and actually gives less of a role to the House of Lords. Peers would not need to debate the treaty at all, their period to object is actually shorter than that in CRAG (where it is 21 sitting days), and there is no legal requirement for an Act of Parliament to be passed before the treaty can be ratified.
In practice, it seems likely that (as with the UK’s accession treaty) there will need to be domestic primary legislation to implement a future relationship treaty even if not as such to ratify it. However, that will depend on what kind of treaty arrangement the UK Government is able to reach with the European Union in the future.
What about the devolved institutions?
The quarterly reports must also be provided to the devolved legislatures, the Scottish Ministers, Welsh Ministers, and the First and Deputy First Ministers or Executive Office of Northern Ireland.
However, the devolved legislatures would, under these proposals, have no formal say on the initial or subsequent negotiating objectives of the UK Government. They would also have no formal role in the approval of any negotiated treaty prior to ratification.
However, there will be broad aspects of the treaty on the future relationship, such as agriculture, fisheries and the environment, where devolved administrations will have responsibility for the implementation of international obligations once entered into. The interaction between, for example, the Government’s proposed Trade, Agriculture and Fisheries Bills and any treaty on the future relationship, remains to be seen. It is possible that implementing primary legislation would prompt questions about legislative consent: under the Sewel convention, the UK Parliament will “not normally” legislate on a matter within the devolved competence of a devolved legislature without its consent.
- A User’s Guide to the Meaningful Vote, 25 October 2018
- Parliament’s role in approving and implementing agreements with the European Union, 23 May 2018
- Parliament’s role in ratifying treaties, 17 February 2017
- Withdrawal Agreement Bill: Ratifying the Withdrawal Agreement, 21 October 2019
About the author: Graeme Cowie is a Senior Library Clerk at the House of Commons Library, specialising in Brexit.