On the face of it, the two arguably most significant pieces of Brexit legislation passed in the last few years look rather similar.
Both are lengthy and complex: their first published drafts run to 62 and 100 pages respectively. Both implement aspects of withdrawal: the EU (Withdrawal) Act 2018 brought EU law onto the UK statute book, whilst the EU (Withdrawal Agreement) Act 2020 implemented the Withdrawal Agreement.
They are similar enough in topic that large portions of the 2020 Act directly amend the 2018 text.
The stories of their progress through Parliament, though, are very different. The 2018 Act (the EUWA or, before Royal Assent, the EUWB) took 11 months to pass through Parliament.
The government suffered multiple defeats and made major concessions; the bill was amended so heavily that its final text was two thirds longer than its first version.
Initially, it looked as though the second bill (the WAB – after Royal Assent, the WAA) would have a similar experience. The first WAB was introduced in October 2019: it passed its second reading, but the government abandoned the bill after its programme motion was defeated.
A second version, introduced after the 2019 general election, had a far smoother passage through Parliament. It passed in just five weeks, including a two-week recess. A handful of defeats in the House of Lords were easily overturned in the Commons and, remarkably for a bill of such complexity and constitutional significance, not a single amendment made it into the final text.
The circumstances of the two bills were, of course, very different. Theresa May introduced her EUWB into Parliament mere weeks after the 2017 election, with her majority gone and her personal authority severely compromised.
It was always likely that she would have to offer substantial concessions to get her legislation through Parliament – and indeed, much of her other Brexit legislation, including bills on trade, immigration and agriculture, stalled as the government ran into increasing difficulty.
Boris Johnson, conversely, introduced his second WAB immediately after a landslide election victory, at the probable height of his popularity in his party, and claiming a strong personal mandate for his version of Brexit.
The time pressures of 2017-18, too, were fundamentally different to those of early 2020. The EUWA’s passage nine months before the original exit day of 29 March 2019 may have seemed tight at the time, but it was nothing compared to the WAB’s December introduction, a mere six weeks before the 31 January 2020 deadline.
With a swift parliamentary timetable, there was little opportunity for would-be amenders of the bill to canvass support. And with the Commons select committee system not yet up and running after the election a key source for expert analysis was missing. In this context, it is hardly surprising that the WAB passed unamended.
But what did the nature of their passage mean for the final contents of these two Acts? Perhaps the most striking difference between them lies in their approach to Parliament’s future role.
The final provisions of the EUWA reflected a Parliament which was increasingly in revolt against Theresa May’s ‘no running commentary’ approach to Brexit scrutiny. The statutory meaningful vote, forced upon the government by Conservative backbenchers in both Houses, gave Parliament an unprecedented role in ratifying an international agreement – an area where its influence has, traditionally, been very limited.
When the Commons rejected May’s deal, the meaningful vote mechanisms contained in the EUWA then laid the ground for further procedural innovation which resulted, ultimately, in Parliament legislating against the government’s will (as discussed in Daniel Gover’s contribution).
And this was not the only area in which Parliament asserted itself in the EUWA: it also, unusually, put negotiating objectives (on a customs arrangement and unaccompanied child refugees) into statute, as well as establishing new scrutiny mechanisms for delegated legislation (for which, see Brigid Fowler and Ruth Fox’s contribution).
The first version of the WAB, published under minority government, afforded Parliament a similarly central formal role. It included a parliamentary vote on both the negotiating mandate and the final treaty on the future relationship, and committed the government to give Parliament regular progress updates during the negotiating period.
Indeed, in key respects it actually gave Parliament a more significant role than had the EUWA – building in ongoing parliamentary oversight presumably to reduce the risk of Parliament ultimately rejecting the deal, as had happened with May’s Withdrawal Agreement.
The second, post election version of the WAB, however, stripped out these provisions – and none appear in the final Act.
In formal terms, then, the difference between the two Acts is stark. The negotiation has been taken back into executive hands. Parliament will have little formal say in shaping the mandate or monitoring the negotiations – though select committees will certainly play a role – and there will be no meaningful vote on the future relationship.
Such a conclusion, though, would be too simplistic – even accounting for the very different circumstances in which the Acts were passed.
By the time the EUWB was making its way through Parliament, trust between May and her backbenchers was at such a low ebb that Conservative backbenchers forced the meaningful vote into statute – bringing their disagreements with May, at the time and thereafter, into the public arena of the Commons chamber.
The WAB’s smooth passage may, by contrast, appear to herald a return to a ‘normal’ state of affairs in which the government inevitably gets its way. But the reality of backbench influence has always been more complex.
Much parliamentary influence takes place behind closed doors, not least through the crucial negotiations between a government and its own backbenches. Public dissent over the Huawei and HS2 decisions has shown that the parliamentary Conservative Party, notwithstanding Johnson’s large Commons majority, has more diverse views than might have been assumed.
And, as Philip Lynch’s contribution notes, decisions about the future relationship could have a major economic impact upon some Conservative constituencies – meaning that government backbenchers will almost certainly want to have their say.
The WAA may not give Parliament a formal role in shaping or approving the future relationship. But behind closed doors backbenchers will, as always, no doubt be keen to exert pressure – and may have more opportunity for influence over ministers than some external observers might assume.
By Lisa James, research assistant at the Constitution Unit. This piece forms part of our Parliament and Brexit report.
