17 May 2019

The Government will make the Withdrawal Agreement Bill as attractive as possible to try and convince MPs to pass it – but, argues Maddy Thimont Jack, those tactics could simply store up problems.

The Prime Minister has announced a fourth attempt to get her Brexit deal approved by Parliament. This time, rather than a simple vote on the Brexit deal, or even the Withdrawal Agreement part of it, she is going to skip the meaningful vote and introduce the Withdrawal Agreement Bill (WAB). This is the legislation that implements the deal – and paves the way to ratification. By tabling it, the Prime Minister will force MPs to confront what putting the Withdrawal Agreement into UK law actually means – and many will find it highly unpalatable.

To avoid a fourth defeat, the Prime Minister needs Labour to be whipped to vote for the bill or to win over two separate groups of MPs: Conservative hardline Brexiteer backbenchers and the 20-30 Brexit-supporting Labour MPs. There are four ways that the Government might tempt these MPs on board – but each brings future risks. And however attractive the bill is made at this stage, a new government, with parliamentary support, could always legislate at a later date to override these guarantees. 

Option 1: Set out a clear role for Parliament during the future relationship negotiations

This was first raised by Lisa Nandy and Gareth Snell. The Labour MPs drafted an amendment to the third meaningful vote which called for parliamentary approval of both the mandate for the future negotiations as well as the final agreement to be included in the WAB. The Prime Minister indicated that the Government would have accepted this if the amendment had been selected by the Speaker.

Including this provision on the face of the bill would show that the Government has been listening to Parliament and would encourage a change in approach to engaging with MPs during the next phase of negotiations. Perhaps this might help to avoid a repeat of the meaningful vote defeats when the final terms are voted on in two years’ time.

Option 2: Indicate a willingness to include negotiating objectives for the future relationship

MPs fundamentally disagree about what the UK’s future relationship with the EU should look like, and the high-level Political Declaration agreed with the EU could still lead to a range of outcomes. Recognising this, and in an attempt to get a deal through, Theresa May told MPs that the WAB could “provide a useful forum to resolve some of the outstanding issues in the future relationship”. 

But amendments dictating what the Government should negotiate with the EU could tie its hands ahead of the negotiations and limit its ability to leverage concessions from the EU.

It could also open a Pandora’s box to other, much trickier amendments, for example making any financial payments to the EU conditional on a specific type of future relationship.

Option 3: Commit to protecting social and environmental rights after Brexit

In March, the Government published draft clauses to address Labour MPs’ concerns that workers’ rights could be reduced after Brexit. But these clauses do very little – requiring ministers to make a statement that any new bill doesn’t remove ‘pre-exit EU workers’ rights’ and the Government to keep Parliament informed of new EU rights which it could vote to incorporate in UK law (although not in any binding way). How to ensure future environmental standards has been raised in cross-party talks between the Government and Labour.

But the Government cannot avoid the problem that it is very difficult to entrench these kinds of commitments in UK law. The best way to prevent a reduction in rights would be to include this in the future agreement with the EU, but this is a negotiating card the Government may not want to play too soon.  

Option 4: Give MPs a vote before entering the Irish backstop

The backstop is a key reason that many Conservative backbenchers oppose the Withdrawal Agreement. It only comes into force if the UK and EU are unable to negotiate a future relationship – but the WAB is going to have to set out how this process will happen.

The Prime Minister could choose to resurrect an idea floated before Christmas: give MPs a vote on whether to enter the backstop at the end of the transition period.

But this would be extremely risky. First, the possibility that Parliament could refuse to enter the backstop may mean the EU refuses to ratify the deal. But even if the EU did agree to ratify, a future government could potentially violate international law if MPs were ever to vote against entering the backstop. This would not only undermine the UK’s credibility on the world stage but would also lead to no deal.

MPs may try to delete the backstop from the bill or, following the January Brady amendment, try to insist on ‘alternative arrangements’ in place of the backstop. Neither approach is likely to win favour with the EU.

Passing second reading is the first hurdle but the entire passage of the bill will be a momentous challenge for the Government

The assurances on the face of the bill may help the Government over the massive hurdle of second reading – though that still looks a bad bet.  

But even if the Government clears that hurdle, it needs to maintain a stable majority to survive a raft of amendments, many of which could block the path to ratification. Third reading, if the bill gets that far, could be even more difficult.