Parliamentary scrutiny and approval of the Withdrawal Agreement and negotiations on a future relationship Contents

Conclusions

Parliament’s vote on the Withdrawal Agreement and the terms of the future relationship

1.The conclusion of a Withdrawal Agreement between the UK and the EU27 and its accompanying Political Declaration on the framework for a future relationship will initiate a series of proceedings in Parliament which will need to be concluded by 29 March 2019, the date on which, under the terms of Article 50 of the Treaty on European Union, the UK becomes a third country. Even under the most optimistic scenario of full agreement at the October Council, Parliament will have barely more than five months to consider a motion to approve both documents (the “meaningful vote”), to complete consideration of the Withdrawal and Implementation Bill, and of any delegated legislation and any other primary legislation required by exit day, and to complete procedures required under the Constitutional Reform and Governance Act 2010 for treaty ratification. (Paragraph 39)

2.This Committee’s scrutiny of the deal will be important to the “meaningful vote”. The Secretary of State has committed to give evidence to us following the October Council and we would expect a similar commitment if final agreement is deferred to the December Council or an even later date. We will expect the Secretary of State to be prepared to give evidence to us as soon as practicable after the Council at which any agreement is reached. We recommend the Government allow sufficient time between the Secretary of State appearing before us to give evidence and the scheduling of the “meaningful vote” to ensure that we have the opportunity to report to the House, as appropriate, on the final deal. We note that the Institute for Government suggested that parliamentarians should be given two weeks at the very least to consider the Withdrawal Agreement and Political Declaration before the debate is held. However, we recognise this timetable would need to be condensed in certain circumstances. (Paragraph 40)

3.The debate on the motion for approval of the Withdrawal Agreement and Political Declaration will be one of the most significant parliamentary debates in a generation. We note the precedent of five days spent debating the motion to approve the UK’s decision to join the then European Communities in 1971. Five days would therefore be the minimum time that would be appropriate on this occasion. (Paragraph 41)

4.The Secretary of State indicated to us that the motion to approve the Withdrawal Agreement and Political Declaration will be amendable. Given the significance of the debate on the motion it would be unconscionable if the House of Commons was not provided with the opportunity both for the fullest debate and to enable a clear expression of its opinion. It is essential that debate is organised through a Business of the House motion to ensure that it is possible for the Speaker to select a series of different amendments for consideration. The Government must ensure, so far as it is within its powers to do so, that these procedures allow the decision on the Withdrawal Agreement and Political Declaration motion to reflect, as far as possible, the view of the House as a whole even if this differs from the Government’s preferred wording. The means of doing this is a matter on which the House would benefit from the expertise of the Procedure Committee and we request that that Committee give it consideration. (Paragraph 42)

5.We do not accept that a refusal by the House of Commons to approve the Withdrawal Agreement and the Political Declaration would mean that the Withdrawal Agreement would fall and that the UK would therefore leave the EU on 29 March 2019 without a deal. Consideration of the approval motion will give the House the opportunity to ask the Government to renegotiate terms, if the EU agreed to do so, or to seek to put its own conditions on approval. The House will expect that, in such circumstances the Government would re-submit the motion following any renegotiation sought by Parliament or having considered the terms set by the House. We call on the Government to provide for a second parliamentary vote to approve the Withdrawal Agreement and Political Declaration in such circumstances. (Paragraph 43)

6.It is possible that a renegotiation may be required in the event of either the UK Parliament or the European Parliament rejecting the Withdrawal Agreement or Political Declaration. However, the terms of Article 50 mean that, without an extension of Article 50 negotiations by the UK and the EU27, the UK is due to exit the EU on 29 March 2019 with or without an agreement. (Paragraph 44)

7.We reiterate the recommendation from our Third Report that the Government should be prepared to seek a limited extension to the Article 50 period if substantive aspects of the future relationship remain to be agreed. This would allow Government to meet its objective that negotiations on substantive aspects of the future relationship should not continue into the transition / implementation period. A limited extension to Article 50 may also be required to prevent the UK leaving the EU on 29 March 2019 without an agreement in the event that parliamentary consent to the Withdrawal Agreement is delayed by either side of the negotiations, although it is by no means certain that the EU would respond positively to such a request. (Paragraph 45)

8.The negotiations on the UK’s exit from the EU are unlike any other in that a “no deal” scenario does not maintain the status quo but has significant implications for the UK and the EU from the moment that the EU Treaties would cease to apply to the UK at 11pm on 29 March 2019. In the circumstances that a deal is not reached (or a deal is not reached that Parliament is prepared to approve), it is important that Parliament is able to express its view clearly and advise the Government on how to proceed. The provisions in the European Union (Withdrawal) Act 2018 provide a framework for Parliament’s role in that scenario. Were this situation to arise, we would expect the Government to provide an opportunity for both Houses to express their views, as the Secretary of State told the House they would. In such circumstances, the country would expect more than that its elected representatives simply “took note” of the situation. (Paragraph 46)

The Political Declaration

9.Notwithstanding the constraints of the Article 50 process, which sets out the procedures for a country exiting the EU rather than a country establishing a new relationship, the House of Commons will expect a high level of detail in the Political Declaration accompanying the Withdrawal Agreement if it is to be able to give its approval to both. We call on the Government to seek the inclusion of the Political Declaration as an annex to the Withdrawal Agreement in order to give its contents greater force. (Paragraph 64)

10.The section on the financial settlement in the text of the draft Withdrawal Agreement published after the March Council was highlighted in green, indicating that it had been agreed in principle by both sides. The UK’s agreement to pay the financial settlement estimated at between £35 billion and £39 billion will be legally binding under international law once the Withdrawal Agreement is ratified by all parties concerned. The Withdrawal Agreement will be considered by the UK Parliament alongside a non-binding Political Declaration. A legally binding agreement on the UK’s future relationship can only be agreed once the UK is a third country. If the UK Government wishes to make the payment of the financial settlement conditional on reaching a binding agreement on the future relationship, it would need to secure the agreement of the EU27 to inserting text to this effect in the Withdrawal Agreement. We note that the Government has not yet secured a clause in the Withdrawal Agreement linking the financial settlement to the satisfactory conclusion of negotiations on the framework for the future relationship. We call on the Government to confirm whether the inclusion of such a clause is one of its negotiating objectives. (Paragraph 65)

Implementation and ratification of EU exit agreements

11.If the House of Commons agrees the motion to approve the Withdrawal Agreement and Political Declaration, the Government will then introduce the Withdrawal Agreement and Implementation Bill to give effect to relevant provisions of the agreement in UK law and to allow for the exercise of delegated powers under Section 9 of the EU (Withdrawal) Act 2018. This will not provide an opportunity for parliamentarians to influence or amend the text of the Withdrawal Agreement itself. (Paragraph 82)

12.It is likely that, to secure the legal basis necessary for the standstill transition / implementation period envisaged in the current text of the Withdrawal Agreement, the Withdrawal and Implementation Bill will need to restore (for the limited period of the transition / implementation period) provision for the direct effect of EU law which is to be removed by the European Union (Withdrawal) Act 2018. We call on the Government to clarify the legal basis that will be used to provide for the standstill transition / implementation period. We also call on the Government to clarify how legal provision will be made for any backstop solution agreed for the Irish border and whether this backstop will need to be given provisional legal effect in the Withdrawal Agreement and Implementation Bill. (Paragraph 83)

13.Depending on the outcome of negotiations, the Government will have a large amount of legislation, both primary and secondary to pass before exit day or the end of the transition / implementation period if the transition / implementation period is agreed. It is essential that sufficient time is provided for proper consideration of the legislation required. Indeed, given the volume and complexity of legislation that now needs to be considered in such a short time, the Government should publish details of its intended legislative timetable including the intended publication dates of any proposed White Papers or Green Papers, and any contingency plans for handling a “no deal” outcome including legislative consequences. (Paragraph 84)

14.Parliament will also need to ratify the Withdrawal Agreement before exit day in accordance with the provisions of the Constitutional Reform and Governance Act 2010 (CRAG) on treaty ratification. We would expect the CRAG process to commence no earlier than the introduction of the Withdrawal Agreement and Implementation Bill in Parliament. The CRAG process should not be triggered when the Withdrawal Agreement is laid in the House ahead of the parliamentary vote unless the timing of events does not allow for this. (Paragraph 85)

15.The Government should give a commitment that there will be a vote on the Withdrawal Agreement if a resolution is tabled against it during the 21-day CRAG process. (Paragraph 86)

Scrutinising negotiations on the future relationship

16.On the basis of the existing text of the Withdrawal Agreement the UK will leave the institutions of the EU on 29 March 2019 and continue in the transition / implementation period until no later than 31 December 2020. This leaves only 21 months to translate the Political Declaration accompanying the Withdrawal Agreement into the legal text for any agreement or agreements on the future relationship, and for the ratification process to be sufficiently completed for key provisions to enter into force. The European Parliament elections in May 2019 and the subsequent establishment of a new Commission will substantially reduce the time available for meaningful negotiations to around 15 to 16 months. There is a possibility that this will not prove sufficient. Therefore, the Government should seek to secure a simple mechanism in the Withdrawal Agreement for the extension of the transition / implementation period if required. (Paragraph 104)

17.Once we leave the EU, the UK Parliament will lose the role it had in scrutinising EU external agreements, including trade agreements, through the European scrutiny processes in each House. Parliamentary scrutiny will be restricted instead to the provisions in the Constitutional Reform and Governance Act 2010 (CRAG) relating to ratification of treaties. CRAG provisions are inadequate, denying Parliament the right to information during negotiations, and not even guaranteeing a debate or vote on a treaty before it is ratified. The Government must ensure that the UK Parliament is given a meaningful vote on the final text of the agreements with the EU that will comprise the future UK-EU relationship. The Government must also commit to scheduling a vote in Parliament if a resolution is tabled against any of the future relationship agreements during the 21-day CRAG process. (Paragraph 105)

18.It is also important to look beyond the treaties we conclude with the EU to the negotiating and signing of any new agreements with non-EU countries, including new trade deals. We recommend that Parliament has a role in the scrutiny of these agreements. The Liaison Committee should examine the role of parliamentary committees in scrutinising treaties after the UK leaves the EU and consider proposals for a dedicated committee on treaties or how existing select committees might best approach this work. (Paragraph 106)

19.The UK’s future trade agreement with the EU and negotiations on trade with non-EU states will have significant impacts on devolved policy areas and interests. As we said in our First Report, there needs to be cooperative, participative mechanisms for joint working between the UK Government and the devolved administrations to ensure that devolved interests are properly considered when entering into and developing new international agreements. We also asked the Government to set out whether it is considering formal structures for inter-governmental relations, including any arbitration system for disputes, so that the views of the devolved governments can be heard. The Government should set out in detail the processes by which the views of the devolved governments and parliaments will be fed into the negotiations on the UK’s future relationship with the EU and on future trade agreements with non-EU states. The Government should also commit to seeking the views of the devolved parliaments as part of the process of seeking approval for the Withdrawal Agreement and Political Declaration. (Paragraph 107)

20.The negotiations on our future relationship with the EU will be a monumental task, touching a wide range of aspects of the political and economic future of this country. It is not yet clear whether changes will be made to the machinery of Government to accomplish this task. However, were the Department for Exiting the European Union to be abolished and this Committee to lose its role, adding the scrutiny of these negotiations to the workload of another existing committee would not be adequate. To ensure the right level of scrutiny of these historic negotiations and an effective role for Parliament in seeking the best outcome for the UK, there must continue to be a dedicated select committee on EU exit during the transition / implementation period to scrutinise and hold the Government to account in negotiating the UK’s future relationship with the EU. (Paragraph 108)





Published: 28 June 2018