Parliament still has responsibility to scrutinise the Withdrawal Agreement Bill properly

In October, the Commons gave second reading to the EU Withdrawal Agreement Bill – but rejected the prime minister’s timetable. With a working majority of 87, the prime minister can be confident his bill can pass unamended. But MPs should still properly scrutinise the government’s plans and what implications this bill will have for the UK.

There are five key issues.

Issue 1: Commitment not to extend the transition period

Number 10 is already briefing that there will be changes in the Withdrawal Agreement Bill (WAB) compared to the version introduced in October. It will remove the (pretty meaningless) provisions on workers’ rights and add a commitment not to extend the transition period beyond December 2020.

It is not clear how the government intends to enshrine this commitment – whether it will just write the date of the ‘IP completion day’ onto the face of the bill (as Theresa May’s government ended up doing with ‘exit day’ in the EU Withdrawal Act) – or whether it will involve an additional clause. It has also been suggested that, since the EU could also ask for an extension, a legal prohibition on an extension would conflict with the Withdrawal Agreement.  

In truth, since the prime minister could always use his majority to reverse this provision in the future if he wanted more time to negotiate, this is little more than a gesture that he is to be trusted with taking the UK out of the EU by 31 December. A good briefing line – but a pointless piece of law in current circumstances.  

Issue 2: Parliamentary oversight

To persuade backbenchers to support the Withdrawal Agreement Bill in October, the government included a commitment to hold key votes in Parliament on the initial negotiating mandate and the final future relationship treaties that the UK will negotiate with the EU. With a majority, it could very easily strip out that part of the bill.

But needing to get parliamentary approval for a deal could be a useful tool in negotiations – as the government could point to backbenchers as a reason not to compromise. And MPs should think about what kind of precedent it would set for future trade negotiations, by any future government, if Parliament is cut out.

Issue 3: Citizens’ rights

The Withdrawal Agreement Bill gives the broad framework for the settled status regime set up to ensure EU citizens who live in the UK can continue to access their rights after Brexit – including a firm deadline for applications.

Amendments tabled to the bill in October looked to ensure EU and EEA citizens maintained their rights under the Withdrawal Agreement even if they failed to apply for settled status by the government’s deadline. But MPs and government need to think through the consequences, if they stick with their current policy, for the inevitable tens or even hundreds of thousands of people who will have failed to apply by that deadline – and consider the case for some flexibility before they end up with a big problem down the line.

Issue 4: Use of ‘Henry VIII’ powers

The version of the Withdrawal Agreement Bill published in October gave sweeping powers to ministers to implement all aspects of the Withdrawal Agreement – this is unlikely to change. While it is not necessarily surprising that the government has opted to use delegated powers (statutory instruments) to implement the deal – not least as parts of the deal still haven't been worked out, including aspects of the Northern Ireland protocol – MPs and peers should seriously consider the implications of the use of those powers as statutory instruments receive little scrutiny in Parliament.

During the passage of the EU Withdrawal Act, MPs amended the bill to establish a ‘sifting process’ for statutory instruments amending UK law. Committees in the Commons and the Lords could recommend ‘upgrading’ the level of scrutiny from the negative to the affirmative procedure which involves a vote in both Houses before a statutory instrument becomes law.

MPs and peers should consider amending the WAB to ensure the same process applies to statutory instruments passed under the bill as well. It would, at the very least, provide a mechanism for Parliament to engage with implementation choices the government makes.

Issue 5: Relationship with the devolved administrations

The result of the general election has already set the stage for a constitutional clash between Westminster and the Scottish government. But the Withdrawal Agreement Bill could exacerbate the breakdown in relations. Both the Scottish Parliament and the Welsh Assembly indicated they would not give consent, under the Sewel Convention, for the previous version of the Withdrawal Agreement Bill.

There has been little indication, so far, that this will change. Passing the legislation without consent – which the government would be forced to do to meet the 31 January deadline – will only add to the devolved governments’ grievances.  

Above all, the government needs to remember that while it can use its majority to treat Parliament as a rubber stamp, it will suffer down the line if bad legislation makes it onto the stature book. MPs and peers should try to make sure it does not – and the government should listen.