Avid followers of Brexit will have picked up on the UK Government’s recent announcement of its intention to introduce a Withdrawal Agreement Bill at Westminster before the summer recess. That may have come as a surprise given the ongoing failure by the Government to obtain parliamentary approval of the Withdrawal Agreement in a ‘meaningful vote’. Here we aim to explain this new proposal.

Where we are now

As is well understood, for more than two years 29 March 2019 was the date on which the UK was expected to leave the EU. That date having passed, there is now a series of possible exit dates. In April, the UK and the EU agreed on an extension to 31 October 2019 (at the latest) unless the UK ratifies the Withdrawal Agreement earlier. The extension agreement also states that, if the UK is still a Member State by the time the European Parliament elections take place (23-26 May 2019) it will be under the obligation to hold those elections, or, failing that, to leave the EU on 31 May 2019 without a deal. We blogged about the “Brextension” here and here.

With European Parliament elections taking place this week and no prospect of ratification before then, the UK Government has now announced that it will introduce a key piece of Brexit legislation, giving domestic legal effect to the (still not approved) Withdrawal Agreement, in the House of Commons in the week of 3 June 2019.

The Government is attempting to set a fresh Brexit deadline of Parliament’s summer recess (expected for mid-July). Should the Withdrawal Agreement Bill become law in July, the UK would leave the EU, according to the extension agreement “on the first day of the month following the completion of the ratification procedures” - so 1 August 2019.

With the Withdrawal Agreement rejected three times by the Commons and no cross-party compromise in sight this most recent move needs some explanation.

Why is the Withdrawal Agreement Bill needed at all?

When the UK becomes party to an international treaty, this treaty does not automatically take effect in domestic UK law. Instead, Parliament must pass legislation to give effect to the treaty. Article 185 of the Withdrawal Agreement states that it will not enter into force until these “necessary internal procedures” are completed.

The UK’s “necessary internal procedures” are set in section 13(1) of the European Union (Withdrawal) Act 2018 (the Withdrawal Act). The Withdrawal Act lists four requirements that need to be fulfilled before the Withdrawal Agreement may be ratified:

(1) the Withdrawal Agreement and the political declaration of the framework for the future relationship are to be laid before both Houses of Parliament;

(2) the House of Commons has to approve both;

(3) the House of Lords has to “debate” both; and

(4) an Act of Parliament has to be passed, containing provision for the implementation of the Withdrawal Agreement (the said Withdrawal Agreement Bill).

Following the procedure set out in section 13(1) of the Withdrawal Act, the Withdrawal Agreement, being an international treaty, will also be subject to the provisions of the Constitutional Reform and Governance Act 2010 (if not disapplied in the Withdrawal Agreement Bill).

Once published and laid before Parliament for 21 sitting days, and provided that there has been no resolution against the Withdrawal Agreement, the Government may then proceed with the ratification process. Ratification defines the international act in which a state indicates its consent to be bound to a treaty. In the case of bi- or multilateral treaties, ratification is usually accomplished by exchanging the requisite instruments. In the words of the Withdrawal Agreement, receipt of the UK’s “written notification” by the Secretary General of the Council (the “depositary”) is required.

“Double” parliamentary approval required …

The effect of s13(1) is to require the House of Commons to “say yes” twice to the Withdrawal Agreement, by first approving “the deal” itself and subsequently by passing the Withdrawal Agreement Bill implementing the deal (the House of Lords in turn only has to “debate” the Withdrawal Agreement itself but must pass the Withdrawal Agreement Bill).

Introducing the Withdrawal Agreement Bill before securing Parliament’s approval for the deal first is, at one level, a case of “jumping the queue” and ignoring the procedure required by section 13(1) of the Withdrawal Act. The Government could include a clause in the Bill removing the need for a separate approval motion or it could attempt to progress the Bill’s passage in Parliament in the expectation that by the time it reached its final stages the Commons would have, meantime, approved the deal with a meaningful vote.

… but there is a problem

The Withdrawal Agreement has been rejected three times in the House of Commons. Introducing a Withdrawal Agreement Bill may be viewed as an attempt by the UK Government to put the subject matter of the Withdrawal Agreement before Parliament in a different guise. The Speaker of the House of Commons, John Bercow has made clear that another meaningful vote on the Withdrawal Agreement “without substantial changes” will not be permitted.

Without support for the Withdrawal Agreement, it is inevitable that will be no support for the Withdrawal Agreement Bill. The issues that have prevented Parliament from approving the deal in the last three attempts (in particular the question of the “Protocol on Ireland/Northern Ireland” or more commonly known as the “backstop”) remain obstacles.

If the Commons rejects the Withdrawal Agreement Bill the Government will not be able to bring it back a second time during this parliamentary session. The UK Parliament is expected to rise towards the end of July and to return in early September. While this could mean a “fresh start” for the Withdrawal Agreement Bill, uncertainties still remain. Possibly under a new Prime Minister and only weeks away from the current exit date, it remains to be seen if the Government can secure Parliament’s approval of the Withdrawal Agreement (Bill) in time to avoid a ‘no-deal’ exit on 31 October. With last week’s announcement that the talks between the UK Government and the Labour Party have come to an end without agreement, ratification, be it in this or the next parliamentary session, is moving further into the distance.

Outlook

In line with the EU’s “mantra” of Brexit negotiations that nothing is agreed until everything is agreed, one could say that nothing is certain until everything is certain. A cross-party compromise may be found by 3 June and Parliament may be convinced to approve the Withdrawal Agreement Bill. As matters stand the odds on that do not seem favourable.