Public Law for Everyone

The Government has confirmed that tomorrow, Friday 29 March, it will lay a motion before the House of Commons seeking its approval of the Withdrawal Agreement — but not of the Political Declaration concerning the UK’s future relationship with the EU. It has further indicated that if the Withdrawal Agreement is approved, it will introduce into Parliament the long-awaited ‘Implementation Bill’, which would be needed in order to give effect in domestic law to the Withdrawal Agreement. As far as the legal implications of this proposed course of action are concerned, three issues are worth mentioning.

Article 50 extension

If the House of Commons approves the Withdrawal Agreement by the end of tomorrow, this will have significant implications for the date of the UK’s departure from the EU. At last week’s European Council, it was decided that the UK would, by default, leave the EU not on the originally scheduled date of 29 March but on 12 April instead. However, it was further decided that if the House of Commons were to approve the Withdrawal Agreement by the end of 29 March, the date of the UK’s departure would be 22 May instead of 29 March. Importantly, the European Council’s decision about extending the Article 50 period did not require the Commons to approve the Political Declaration by 29 March. Thus, approval of the Withdrawal Agreement alone would be sufficient to unlock the longer extension of Article 50 to 22 May. That, in turn, would provide time that could potentially be used to make changes to the Political Declaration — something that the EU has indicated it is open to.

All of this assumes that the EU would be willing to accept that a vote on the Withdrawal Agreement only was sufficient to satisfy last week’s European Council decision regarding the extension of Article 50 to 22 May. A possible difficulty is that Article 50(2) of the Treaty on European Union refers to ‘an agreement … setting out the arrangements for [the Member State’s] withdrawal, taking account of the framework for its future relationship with the Union’. On one view, at least, this might be taken to suggest that the requirement set by the European Council, that the ‘Withdrawal Agreement’ be approved by 29 March in order to unlock the 22 May extension, means that the Withdrawal Agreement including the Political Declaration must be approved by tomorrow. The Government has clearly assumed, and has presumably received legal advice to the effect that, approval of the Withdrawal Agreement alone is sufficient to trigger the 22 May extension. There is certainly room for argument on this point, although the fact that the European Council decision on extending Article 50 distinguishes between the ‘Withdrawal Agreement’ and the ‘Political Declaration’, and goes on to stipulate that only the former needs to be approved by the House of Commons by 29 March suggests that, on balance, the 22 May extension can be unlocked by approval of the Withdrawal Agreement alone.

No-deal Brexit

Even if the House of Commons agrees to the Withdrawal Agreement tomorrow, and even if this unlocks the 22 May extension of the Article 50 period, this will not in itself prevent a no-deal Brexit. Leaving to one side the possibility of a further extension to the Article 50 period, a no-deal Brexit can only be avoided in one of two ways: leaving with a withdrawal agreement or revoking Article 50 and thereby aborting the Brexit process. Crucially, approval of the Withdrawal Agreement by the House of Commons tomorrow would not permit the Government to move ahead and ratify the Agreement — a step that must be taken before the Agreement can have legal effect. The reason why approval tomorrow would not suffice is that section 13 of the European Union (Withdrawal) Act 2018 says that before ratification of the Withdrawal Agreement can happen, both it and the Political Declaration must be approved by the House of Commons. It also says that a further Act of Parliament must be enacted, making provision for the implementation in domestic law of the Withdrawal Agreement. As the law currently stands, therefore, the Government cannot ratify the Withdrawal Agreement until both it and the Political Declaration have been approved in accordance with section 13 of the Withdrawal Act.

Implementation Bill

As noted above, the Government has indicated that if the House of Commons approves the Withdrawal Agreement tomorrow, it will bring forward the Implementation Bill. Some commentators have pointed out, quite correctly, that that Bill might contain a provision dispensing with the need, set out in section 13 of the Withdrawal Act, for the House of Commons to approve the Political Declaration. In legal terms, it would be perfectly possible for that to happen, earlier legislation (the Withdrawal Act) always being open to amendment by subsequent legislation (the Implementation Bill). However, two points are worth bearing in mind. First, merely inserting a provision in the Bill would not dispense with the need for the Commons’ approval of the Political Declaration. The legal requirement for such approval set out in section 13 of the Withdrawal Act would remain in place unless and until the Implementation Bill received royal assent. Second, while it would be legally possible for the requirement for approval of the Political Declaration to be removed by the Implementation Bill, it is hard to see why, in political terms, this would be of any assistance. One the one hand, if the Political Declaration (in its current or future form) turned out to be acceptable to Parliament, dispensing with the need for its approval would be beside the point. On the other hand, if Parliament remained discontent with the Political Declaration, it is difficult to understand why it would be prepared to enact legislation dispensing with the need for its approval.