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

3Implementation and ratification of EU exit agreements

66.The United Kingdom is a dualist legal system, which means that any international agreement ratified by the UK will not be directly applicable domestically. To grant legally enforceable rights in domestic law, the UK must enact domestic legislation to give legal effect to the international agreement. The constitutional requirement for implementing domestic legislation provides Parliament with an opportunity to refuse implementation, which could prevent ratification of the agreement in question.

67.In his written statement of 13 December, the Secretary of State explained this process in relation to Parliament’s approval of the Withdrawal Agreement and bringing it into force:

If Parliament supports the resolution to proceed with the Withdrawal Agreement and the terms for our future relationship, the Government will bring forward a Withdrawal Agreement and Implementation Bill to give the Withdrawal Agreement domestic legal effect. The Bill will implement the terms of the Withdrawal Agreement in UK law as well as providing a further opportunity for parliamentary scrutiny.84

68.This follows a similar process to the UK’s accession to the European Communities. After the House of Commons had approved in October 1971, through a vote on a motion, the principle of joining the European Communities, the Government introduced in the Commons, on 25 January 1972, the European Communities Bill. Following the three-day second reading debate in the Commons, the Prime Minister, Edward Heath, announced that the vote would be one of confidence in his Government, which was won by 8 votes.

69.We heard from the Secretary of State that the second reading of the Withdrawal Agreement and Implementation Bill (WAIB) would be a second opportunity for the House to reject the Withdrawal Agreement:

In other words, if the House rejects the proposed negotiation then that negotiation will fall. There are two chances of that, because of course you will then have the second reading of the Withdrawal Agreement and Implementation Bill, which will incorporate all of that, which will also be another test. In that case, of course the Government have absolutely no choice constitutionally.85

70.Consideration of the Bill will not, however, provide a realistic opportunity for Parliament to amend the Withdrawal Agreement itself. As the House of Commons Library explains, the debate on implementing legislation is not on the text of the treaty itself, but rather on the legislative provisions which would implement the agreement.86 This was evidenced during the Committee Stage of the European Communities Bill in 1972 when the Chairman of Ways and Means ruled that since the purpose of the Bill was not to approve the basic treaties, “amendments designed to vary the terms of those treaties are not in order, and I have no option to rule otherwise.”87

European Union (Withdrawal) Act

71.The European Union (Withdrawal) Act, introduced in the House on 13 July 2017, contained a power in Section 9 to implement the Withdrawal Agreement through secondary legislation. Following debate around the appropriateness of using secondary legislation for this purpose, the Government announced its intention to bring forward a Withdrawal Agreement and Implementation Bill (WAIB), a piece of primary legislation “to enshrine the Withdrawal Agreement between the UK and the EU in domestic law”88; an announcement welcomed by this Committee.89

72.We were told by DExEU Minister Steve Baker that it was not the purpose of the European Union (Withdrawal) Act to implement the transition / implementation period.90 The transition / implementation period, currently set out in green in the draft Withdrawal Agreement as being agreed in principle between the European Commission and the UK Government, provides that EU law will continue to be applicable to the UK. This brings into question the EU (Withdrawal) Act’s provisions both in Section 1 to repeal the European Communities Act 1972 (ECA), effectively ending the application of EU law on exit day, and in Section 6 which ends CJEU jurisdiction in the UK on exit day. The Government has not been clear on how it will deal with the contradictions between the commitments in the Withdrawal Agreement and the EU (Withdrawal) Act. It is not yet clear whether the EU (Withdrawal) Act will provide the foundations for the transition / implementation period, or whether it will be the WAIB alone, or a combination of the two. Swee Leng Harris of the Hansard Society has asked that the Government be clearer as to whether the EU (Withdrawal) Act remains relevant:

in the interests of the rule of law the government needs to provide greater clarity and certainty about the next steps in legislating for Brexit and the relationship between the provisions in the EU (Withdrawal) Bill and the proposed WAI Bill.

Without this clarity, MPs and Peers risk spending many hours in the coming weeks scrutinising legislation that will shortly need to be amended or will be superseded.91

Withdrawal Agreement and Implementation Bill

73.The Institute for Government has argued that the Withdrawal Agreement and Implementation Bill (WAIB) can be expected to have three main parts:

74.The Government published its proposals on 7 June for a temporary customs arrangement between the UK and the EU. The expectation is that it will last from the end of the transition / implementation period until the end of December 2021.93 This backstop is intended to meet the commitments made in the Joint Report agreed in December 2017 to avoid a hard border between Northern Ireland and the Republic of Ireland. Provisions for an agreed “backstop” solution for the Northern Ireland land border will be included in any Withdrawal Agreement. We did not take evidence on how the backstop would be given legal effect in the UK.

75.On the issue of whether the backstop will be time-limited, by definition it will last until such time as it is replaced by other arrangements that maintain an open border between Northern Ireland and the Republic of Ireland.

76.According to the Institute for Government, the WAIB will raise testing constitutional questions, many of which could generate political opposition in Parliament. For example:

The WAIB cannot give legal effect to transition in the UK, for instance, without keeping in force or effectively replicating the European Communities Act 1972 for the duration of that transition. In addition, the Government’s promise, in text now agreed as part of the draft withdrawal agreement, to use this legislation to entrench EU citizens’ rights in domestic law, will be complex for parliamentary draftsmen to navigate. Because the UK Parliament is sovereign, entrenchment is difficult–any Parliament can, as a general rule, reverse what any previous Parliament has done.94

77.There will be time constraints on the passage of the WAIB. The legislation cannot be written and introduced until the Withdrawal Agreement has been negotiated and then approved by Parliament. The Bill must then complete its passage through Parliament and receive Royal Assent by the date of the UK’s departure from the EU. Otherwise, the UK will leave the EU and be bound by the Withdrawal Agreement without the domestic legislation needed to implement that agreement. This would put the UK in breach of its obligations under international law. It would also create legal uncertainty for businesses and citizens who will be unsure whether the terms of the Withdrawal Agreement will apply to them or not. The European Union (Withdrawal) Bill took over 11 months to complete its parliamentary journey95 while, if negotiations go to plan and there is agreement at the October Council, the Government will have only five months (180 calendar days) to get the WAIB through Parliament.96

Other Brexit Bills

78.In addition to the EU (Withdrawal) Act and the Withdrawal Agreement and Implementation Bill, there are a number of Bills related to the UK’s withdrawal from the EU making their way through Parliament. Asked about the slow progress of those Bills, the Secretary of State told us that it was a challenge to put 45 years of law into the UK’s legal system in three years. He noted that some of the legislation would need to be passed before the UK leaves the EU, but the majority would be needed towards the end of the transition / implementation period.97 He told us there were six Bills in play at the moment and he would expect between 800 and 1000 statutory instruments to derive from the powers in those Bills.

79.The passage of this legislation would become much more urgent in the event of “no deal” as there would be no transition / implementation period. As we heard from DExEU Minister Suella Braverman, consideration of legislation including the Nuclear Safeguards Bill, the Haulage Permits and Trailer Registration Bill, the Sanctions and AntiMoney Laundering Bill has commenced that makes provisions for frameworks that could be set up in the event of a “no deal”.98 Other domestic legislation including the EU (Withdrawal) Bill, the Taxation (Cross-border Trade) Bill, the Trade Bill, the Fisheries Bill and the Agriculture Bill would be needed to construct a domestic legal framework where there was an EU one previously, to avoid a legal vacuum.99

Constitutional Reform and Governance Act 2010

80.The Constitutional Reform and Governance Act 2010 (CRAG) formalises a convention that dates from 1924, known as the ‘Ponsonby Rule’. It says the Government must lay international treaties before both Houses of Parliament at least 21 days before the intended date of ratification. If neither House raises objections in that period, the deal is ratified. However, Section 20(1)(c) of the Act sets out that a treaty is not to be ratified if the House of Commons has ‘resolved, within [21 days], that the treaty should not be ratified’. If the House of Commons does vote against the treaty, a minister must lay a statement before Parliament explaining why the treaty should nevertheless be ratified. That triggers a further 21-day scrutiny period, after which the Government can ratify if neither House raises objections. Whilst the House of Lords has only one opportunity to object, this process can be repeated indefinitely in the House of Commons. In theory, therefore, the House of Commons could stop the Government from ratifying a CRAG-applicable treaty indefinitely. However, it has yet to use this power to delay a treaty ratification. In fact, treaties are often not debated and voted upon at all. CRAG does not oblige the Government to allocate time to a debate, even if parliamentarians have registered objections to ratification.

81.With regards to the Withdrawal Agreement, it is unclear exactly when the CRAG process would commence. DExEU Minister Steve Baker told the House of Lords European Union Select Committee that it would likely be “at some point during the passage of the Withdrawal Agreement and Implementation Bill.”100 We heard from Jill Barrett that because time will be tight, the CRAG process and the Withdrawal Agreement and Implementation Bill will likely take place in parallel.101 DExEU Ministers would not confirm whether there would be a vote on the Withdrawal Agreement if a resolution is tabled against it during the 21 day CRAG process.102

82.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.

83.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. 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.

84.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.

85.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.

86.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.

84 Department for Exiting the European Union HCWS342, Procedures for the Approval and Implementation of EU Exit Agreements, 13 December 2017

86 HC Library briefing paper CBP 8321, Parliament’s role in approving and implementing agreements with the European Union, 23 May 2018, pp11–12

87 HC Deb 29 February 1972 col 269

88New Bill to implement Withdrawal Agreement”, Department for Exiting the European Union press release, 13 November 2017

89 Committee on Exiting the European Union, First Report of Session 2017–19, European Union (Withdrawal) Bill, HC 373, 17 November 2017, para 85

90 Oral evidence taken on 26 October 2017, HC (2017–19) 373, Q184

92 Institute for Government, Voting on Brexit, April 2018, p13

94 Institute for Government, Voting on Brexit, April 2018, p5

96 Institute for Government, Voting on Brexit, April 2018, p14

99 Institute for Government, Voting on Brexit, April 2018, p32

100 Oral evidence taken before the House of Lords Constitution Committee, Parliament’s role in relation to the terms of Brexit, 18 April 2018, Q5

102 Qq1899- 1904 [Mrs Braverman]

Published: 28 June 2018