Law-making in the UK post-exit, who gets to call the shots?

WAB

As parliament debates the Withdrawal Agreement Bill (WAB) over at least the coming two weeks, one topic that will be hotly contested is democratic scrutiny of the next stages of Brexit.

It is an open question whether it is possible to avoid a ‘no deal Brexit’ at the end of 2020.

The Withdrawal Agreement includes a ‘stand still’ transition period which is also called the implementation period.

The UK will be outside of the EU during this transition period, but UK law would mirror EU law while the UK and EU negotiate the treaty or treaties that will set out the rules for their future relationship after this transition period.

There will be a risk that the UK and EU are not able to reach agreement on their future relationship so that when this transition period ends (as it is due to do in December 2020), the UK would be facing a ‘no deal Brexit’.

Whether the UK ends up in such a ‘no deal Brexit’ depends in part on what decisions the UK makes during that period.

But which institutions in the UK will have the power to make the key decisions? Will parliament — MPs and peers who sit in Westminster — be able to supervise the process and make key decisions?

Or will the executive — ministers and civil servants — have the power to make meaningful decisions, with parliament limited to approving what the executive has decided?

As parliament debates the WAB, you can expect a lot of discussion about what parliament’s role should be in these decisions.

There are good reasons to say that the old approach to treaty-making needs to be updated.

Treaties are now so significant for public policy that there should be democratic scrutiny of treaty negotiations through parliament, instead of remaining fully within the power of the executive.

As the House of Lords Constitution Committee observed in a report on Parliamentary Scrutiny of Treaties published in April 2019, over the course of  EU membership this imperative has increased, as ‘the nature of treaties changed fundamentally—broadening from areas largely associated with international affairs—peace settlements and security alliances—to wide-ranging economic and trade agreements, encompassing diverse public policy issues’.

There are two kinds of decisions that will be important for whether the UK has a no deal Brexit at the end of transition:

  1. Whether or not the transition is extended from ending on 31 December 2020, because this determines how much time there is for negotiations; and
  2. Decisions on the negotiations of the future relationship in terms of:
    1. The negotiating objectives;
    2. Conduct of negotiations; and
    3. Ratification of any treaty that is negotiated.

Clause 30: deciding whether to extend transition

The Withdrawal Agreement treaty allows only one decision to extend the transition period, and that decision must be made before 1 July 2020 as a joint decision by the UK and EU through what is called the Joint Committee.

At the moment, the WAB would require parliament to sign off a decision to extend the transition period, but the executive would have the power to decide whether or not to agree an extension: at the moment, there is no process in the WAB for parliament to initiate a request for an extension.

The House of Commons would, under clause 30 of the WAB, have the power only to approve or veto a minister agreeing to an extension.

If the Commons wanted ministers to seek an extension and ministers did not want to, the WAB would leave the Commons powerless to require ministers to act.

Clause 31: decisions on the negotiations of the future relationship

Clause 31 of the WAB would provide parliament with more power and oversight over UK-EU negotiations than has hitherto been the case.

It would resolve some concerns as to the current arrangements for parliamentary oversight by requiring that the House of Commons approve the negotiating objectives for the future relationship, and regularly reporting on negotiations to the House of Commons.

However, there could be some shortcomings in the proposed new section 13C from parliament’s perspective. The executive is not legally required to conduct or publish any impact assessments on their envisaged future relationship.

It is not clear on the face of it that the (in section 13C(4)(a)) proposals would allow the House of Commons to change the negotiating objectives for the future relationship.

There would be no requirements for the government to publish its negotiating texts as the EU presently does.

Instead, proposed new section 13C(7) – (8) gives a minister discretion to determine that agreement in principle has been reached with the EU and in which case lay a copy of the negotiated treaty.

Finally, the executive would be required to report only on a quarterly basis (every three months).

Given that the government proposes to negotiate the whole of the future relationship within 14 months, this is remarkably infrequent.

By Swee Leng Harris, Visiting Senior Research Fellow at The Policy Institute at King’s College London, and Head of Policy and Public Affairs at The Legal Education Foundation

This blog is the first of two on the European Union (Withdrawal Agreement) Bill 2019 (WAB). The second will consider some of the changes the WAB proposes to UK law that will have major constitutional significance.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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