21 October 2019

As the government prepares to bring forward legislation to implement its renegotiated Brexit deal, Raphael Hogarth sets out the political battles that lie ahead.   

On Wednesday 22 May 2019, Theresa May promised Parliament that she would publish the Withdrawal Agreement Bill within days. Things did not go to plan. At the end of the week, she addressed the country from the steps of Downing Street to announce her resignation.

Exactly five months later, Boris Johnson will finally publish a Withdrawal Agreement Bill. He will be hoping it does not doom his premiership as it doomed his predecessor’s, but he will not be able to avoid some tricky flashpoints.

Flashpoint 1: Is the government trying to ram the bill through Parliament too fast?

Parliament’s first big decision will be on timings. On Tuesday, MPs are expected to vote on a 'programme motion', which would timetable the stages of the bill to ensure it could complete its passage through Parliament by 31 October.

However, this is a bill of considerable constitutional significance and it would be unprecedented for Parliament to wave through a bill of this kind so quickly. Now that the prime minister has requested an extension of the Article 50 period from the EU, a row over the timetable for the bill is likely.

Flashpoint 2: Will Parliament amend the bill to force the government to negotiate a closer long-term economic relationship with the EU?  

The bill will implement the Withdrawal Agreement. The future relationship has yet to be negotiated, so there is no future relationship to implement. However, the Political Declaration, agreed alongside the Withdrawal Agreement, does signal the direction of travel that the government favours for the future: a relatively loose economic relationship with the EU, along the lines of a traditional free trade agreement.

MPs are likely to try to amend the bill to compel the government to negotiate a closer economic relationship: a customs union, membership of the Single Market, or both.

MPs may also amend the bill to try to guarantee that the UK keeps pace with EU labour and environmental standards. Theresa May’s deal contained some binding provisions to stop the UK rowing back on those standards after Brexit, but Boris Johnson’s deal does not.

Flashpoint 3: Will Parliament amend the bill to force the government to hold a second referendum?

The Labour Party’s official policy is now to hold a referendum on any Brexit deal. Therefore, MPs may try amend the bill to force the government to hold such a referendum: a “confirmatory vote” on the deal. However, government opposition will make it difficult for MPs to bring about a referendum.

Flashpoint 4: Will Parliament try to make payment of the divorce bill conditional on a trade deal?

The Withdrawal Agreement Bill will give ministers powers to make payments to the EU under the financial settlement or “divorce bill” in the Withdrawal Agreement. Previously, some Conservative MPs have suggested that any such payments should be made conditional on getting a trade deal.

Amendments could be put down on this issue, although it is not clear that they would get voted on. Since they could prevent the UK from complying with the treaty and would therefore negative the principle of the bill, which is to implement the treaty, the Speaker might decide that such amendments are wrecking amendments and not select them.

Flashpoint 5: Will Parliament accept the ongoing supremacy of some EU law and a role for of the ECJ?

The Withdrawal Agreement provides that the treaty itself, along with any EU law incorporated into it, has supremacy over UK law. It also gives the European Court of Justice (ECJ) the final say on the meaning of any EU law in the treaty, and provides for references from UK courts to the ECJ on citizens’ rights issues for several years.

The bill will therefore lay down a new framework for the relationship between Parliament, the courts and the EU institutions that could have huge long-term ramifications for the UK constitution. Even if parliamentarians accept these provisions in principle, there is likely to be disagreement over the detail.

Flashpoint 6: Will Parliament accept wide ministerial powers to change the law?

The bill will not implement all aspects of the Withdrawal Agreement, not least because some of the agreement has only just been negotiated and civil servants will not have had time to work up implementing legislation. The new protocol on Northern Ireland, for instance, is complex and is unlikely to be implemented in full by the bill.

The bill is therefore likely to give ministers some wide powers to change the law at a later date. Just as when parliamentarians scrutinised the EU (Withdrawal) Bill in 2018, they will need to make sure that there are procedures for scrutiny of those powers, and that they are no wider than necessary.

Flashpoint 7: Will Parliament try to take control of what happens at the end of transition?

In the first instance, the transition period will last until the end of 2020. At that point, there are three possibilities. First, the UK and the EU could enter a new negotiated trade arrangement, as the prime minister wants. Second, if there is no such arrangement, the UK could leave the transition with no deal. Former Chancellor Philip Hammond has argued that the new agreement is a “heavily camouflaged no deal”, for this reason. Third, if the UK and the EU make a joint decision to this effect before 1 July 2020, the transition period could be extended once by up to two years.

MPs may try to amend the bill so that they can determine which of those paths the UK seeks to take.

If Boris Johnson publishes a Withdrawal Agreement Bill and remains in post by the end of the week, then he will have succeeded where Theresa May failed. But if he is to keep his "do or die" pledge to take the UK out of the EU by 31 October, then he has some more battles to fight.

Comments

Article 126 of the WA states 'Notwithstanding Article 126, the Joint Committee may, before 1 July 2020, adopt a single
decision extending the transition period for up to 1 or 2 years.'

But presumably the Parties could amend this Article at a later date, and extend it further?