22 October 2019

The government knows that MPs cannot  agree to its unrealistic timetable for the Withdrawal Agreement Bill, argues Hannah White.

The government’s proposed timetable for Commons scrutiny of the Withdrawal Agreement Bill (WAB) would be deeply inadequate for any major piece of government legislation. For a constitutional bill which makes probably the most significant changes to the UK’s position in the world that the Commons has been asked to consider for decades, it is extraordinary. The government must know this, but it is asking MPs to agree the timetable or be seen to be thwarting Brexit. 

The government’s proposed timetable sees MPs asked to decide on the principle of whether to legislate (by voting on second reading) today, little more than 12 hours after seeing the bill for the first time. Remember, this is a bill dealing with highly contentious issues including the divorce payment, the transition, Northern Ireland and arrangements for negotiations on the future relationship between the UK and the EU. 

MPs are being presented with a timetable which increases the risk of ineffective legislation 

The House will also have to discuss the programme motion itself. If it doesn't pass, the government might pull the whole bill after concluding that it won't get the legislation through by 31 October – or try again with an amended motion or carry on relying on so-called closure motions to bring debates to an end. Even if the programme motion does pass, any time the Commons spends voting on amendments will cut into time for detailed line-by-line scrutiny of the bill at committee stage. 

That's because the government is proposing that the WAB should also begin its committee stage scrutiny today – requiring MPs to conceive and table amendments for line-by-line scrutiny fewer than 24 hours after the bill was published. This timetable will limit opportunities for MPs to see the amendments that others are proposing and will restrict their ability to organise to support them. But while that may be useful for the government in terms of getting the bill through, rushing line-by-line scrutiny also heightens the risk that it will fail to get an effective and legally watertight statute in place.  

The programme motion says that committee stage debates on Clauses 1 to 4 of the bill – which deal with the fact EU law will continue to apply during the transition period – will have to finish three hours after the proceedings on the programme motion begin. That could mean these crucial provisions about the applicability of EU law to the UK being debated for little or no time after decisions on the programme motion have cut into the time available – if MPs agree the programme motion.

On Wednesday, the proposed breakneck timetable continues through a 12-hour sitting. There will be three hours to consider 12 clauses, two schedules and any new clauses and schedules relating to them. Then any divisions will eat into the next three hours available to debate the next 10 clauses and two schedules. And so on. That leaves one day for the remaining stages and, if amendments are proposed by the Lords – which they surely will be – a single hour to consider them.

Anyone who claims meaningful legislative scrutiny is possible on this timetable is – at best – misguided.

Parliamentary scrutiny of Brexit legislation has been deliberately constrained by the government 

The government’s strategy of pushing negotiations up against the wire of the 31 October deadline may have helped persuade the EU to come to a deal. But it has inevitably constrained Parliament’s opportunity for scrutiny, as the government knew it would. The prime minister’s assertion in September that there would be plenty of time for scrutiny of any deal – even with a five-week prorogation – appeared disingenuous at the time. The proposed programme motion further undermines his assurances.

And more measured scrutiny of much of the bill was possible. Although some provisions in the WAB have only been drafted in recent days, following the conclusion of negotiations with the EU, much of it has been ready in draft for ages. If it had wanted to, then the government could have made those clauses available for examination months, if not years, ago. 

Poor scrutiny leads to poor legislation. Without adequate time to reflect and consider what the government is proposing, flaws and unintended consequences may not be spotted. This scrutiny is about much more than MPs having time to debate the kind of Brexit they want.  

Some MPs would have objected whatever scrutiny timetable the government had proposed. But this proposal seems designed to frustrate and anger MPs and to reinforce Boris Johnson’s pre-election messaging. It may also be designed to allow government to offer some concessions in the hope of persuading MPs to vote for the bill. 

The Commons should not agree to the government’s proposed timetable for scrutiny of its Brexit deal today. It’s hard to believe the government thinks that they will.