Scrutiny of the Withdrawal Agreement

Some paragraphs in this section have been updated, added or deleted since the publication of the current edition. The most recent updates, made August 2021, can be highlighted by clicking ‘Highlight updates’ below. Read a summary and schedule of latest updates here.

32.2The European Union (Withdrawal) Act 2018 set out arrangements for parliamentary approval of the outcome of the negotiations with the EU. It provided that the Withdrawal Agreement could be ratified only if:

  1. a Minister of the Crown had laid before each House of Parliament:
    1. a statement that political agreement had been reached;
    2. a copy of the negotiated Withdrawal Agreement; and
    3. a copy of the framework for the future relationship;
  2. the negotiated Withdrawal Agreement and the framework for the future relationship had been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown;
  3. a motion for the House of Lords to take note of the negotiated Withdrawal Agreement and the framework for the future relationship had been tabled in the House of Lords by a Minister of the Crown and:
    1. the House of Lords had debated the motion; or
    2. the House of Lords had not concluded a debate on the motion before the end of the period of five Lords' sitting days beginning with the first Lords' sitting day after the day on which the House of Commons passed the resolution mentioned in paragraph (b), and
  4. an Act of Parliament had been passed which contains provision for the implementation of the Withdrawal Agreement.

It also provided that, so far as practicable, the Government should arrange business so that the House of Commons considered the motion to approve the Withdrawal Agreement and framework for the future relationship before the European Parliament decided whether it consented to the Withdrawal Agreement (s 13(2)).

The Act provided that if the House of Commons did not approve the motion, a Minister had to make a statement in writing setting out how the Government proposed to proceed in withdrawal negotiations.1 If such a statement was made, a Minster had to move a motion in neutral terms to the effect that the House had considered the statement within seven sitting days beginning with the day on which the statement was made.2 Similar provision required a take note motion in the House of Lords.

The Act also required debates in the Commons and the Lords if before the end of 21 January 2019 the Prime Minister made a statement saying that no agreement in principle could be reached on the arrangements for withdrawal and the framework for future agreement, and required those debates to be held within five sitting days in the Commons and seven sitting days in the Lords. Similar arrangements were prescribed if there was no agreement in principle in negotiations at the end of that date, although the time limit in this case was reduced to five sitting days.3 A statement was made on 24 January 20194 and debates were held in the Lords on 28 January and in the Commons on 29 January.5

These provisions did not affect the requirements set out in the Constitutional Reform and Governance Act 2010 relating to the ratification of treaties, which also applied in relation to the Withdrawal Agreement.6

The Government twice brought forward motions pursuant to s 13(1)(b) of the Act, but the House of Commons declined to approve the negotiated Withdrawal Agreement and Future Framework on both occasions, even after supplementary declarations had been secured seeking to interpret the provisions of the Withdrawal Agreement applying to the Northern Ireland/Republic of Ireland border.7 On a subsequent occasion, the House was invited to approve the Withdrawal Agreement alone and declined to do so.8 On 27 March 2019, the House of Commons approved a Statutory Instrument to amend the definition of ‘exit day’ in the European Union Withdrawal Act.9

The process in the House of Commons was notable in that backbenchers were repeatedly successful in making amendments to Business of the House motions.10 On some occasions, such amended motions removed Government control of the Order Paper on specified days, and allowed the House to determine the conduct of business. On two such occasions, backbench attempts to use a series of indicative votes, conducted by use of ballot papers, under arrangements supervised by the Speaker, similarly failed to establish a majority in favour of any of the options for the future relationship between the UK and the European Union put forward for the ballot and selected by the Speaker.11

On 3 April 2019, the House of Commons passed the European Union Withdrawal (No 5) Bill, after agreeing to take all stages in the same day.12 This provided for the House of Commons to agree to an extension of the period specified in Article 50(3) of the Treaty on European Union to a period ending on a date to be specified in a motion to be moved by the Prime Minister the day after the Bill received Royal Assent. On 4 April 2019, the Bill was given first and second readings in the House of Lords, after a Business Motion was agreed to enable all stages to be taken in a single day.13

The European Council agreed to extend the Article 50 period to 31 October 2019; this was further extended to 30 January 2020. On 23 January 2020, the European Union (Withdrawal Agreement) Act 2020, the legislation giving effect to the Withdrawal Agreement negotiated between the EU and the UK, received Royal Assent. The UK withdrew from the EU on 30 January 2020, entering into an 11-month transition period during which an agreement was negotiated setting the parameters for future trade and co-operation between the EU and the UK.

The interplay of parliamentary procedure and statute in these proceedings raises interesting constitutional issues; the interpretation of statute law is a matter for the courts, but not only does article IX of the Bill of Rights prevent impeaching and questioning of proceedings (see Chapter 13), each House has exclusive cognizance of its own proceedings and power to determine its own procedures, as Bradlaugh v Gosset showed (see para 16.3 ).

Footnotes

  1. 1. Section 13(4).
  2. 2. Statements under s 13(4) were made on two occasions: see HC Deb (21 January 2019) 653, c 4WS; and ibid (15 March 2019) 656, c 40WS.
  3. 3. All time limits began with the day on which the relevant statement was made.
  4. 4. HC Deb (24 January 2019) 653, 25WS.
  5. 5. HL Deb (28 January 2019) 795, c 916; HC Deb (29 January 2019) 653, c 688.
  6. 6. European Union (Withdrawal) Act 2018, s 13(14). Section 36 of the European Union (Future Relationship) Act 2020 stipulated that s 20 of the Constitutional Reform and Governance Act 2010 did not apply to several agreements reached with the EU.
  7. 7. See House of Commons Votes and Proceedings 15 January 2019, 12 March 2019.
  8. 8. House of Commons Votes and Proceedings 29 March 2019; HC Deb (29 March 2019) 657, c 695; non-statutory motions were also brought forward in the Commons on 13 March 2019, 14 March 2019 and 14 February 2019.
  9. 9. House of Commons Votes and Proceedings, 27 March 2019. Motion to approve the draft European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019, HC Deb (27 March 2019) 657, c 429; HL Deb (27 March 2019) 796, c 1843.
  10. 10. House of Commons Votes and Proceedings, 4 December 2018, 29 January 2019, 25 March 2019, 27 March 2019, 1 April 2019 and 3 April 2019.
  11. 11. House of Commons Votes and Proceedings, 27 March 2019 and 1 April 2019.
  12. 12. House of Commons Votes and Proceedings, 3 April 2019; HC Deb (3 April 2019) 657, c 1058.
  13. 13. HL Deb (4 April 2019) 797, c 230 ff. Although the Business Motion was agreed to, the House adjourned after second reading.