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Government concedes: implementing Brexit Withdrawal Agreement will require another Act of Parliament

15 November 2017

Jurisdictions: United Kingdom

By Charles BrastedAndrew Eaton and Louis Biggs

The EU Withdrawal Bill has now entered the committee stage in the House of Commons.  This is the stage at which Parliament gets into the detail of the Bill, including amending it if necessary. 

Close to 500 amendments to the Bill have been tabled, demonstrating the difficultly of the task ahead for the Government to get this vital piece of legislation passed.  Seemingly in recognition of this, the Government yesterday announced that the EU Withdrawal Bill will include a requirement that the Article 50 Withdrawal Agreement be approved and implemented by a subsequent Act of Parliament. The Government's proposed amendment guarantees that Parliament will have a vote on the Withdrawal Bill, if one is agreed, by enshrining a requirement for such a vote in UK law.  The question is whether it does any more than this.

The Government's proposed amendment to the EU Withdrawal Bill appears to go further than the amendment previously proposed by the former Attorney General, Dominic Grieve, which would have required the Withdrawal Agreement to be approved by an Act of Parliament, but implemented by secondary legislation. The Government's approach could in theory give greater control over that implementation of the Agreement to Parliament, including in terms of scrutiny and amendment of the mechanism.  It could also have implications for the rights provided under the Agreement, such as EU citizens' rights, as these will be given the force of primary legislation, rather than enacted through statutory instruments.

That said, the Government has so far only committed to this in principle and has not published a draft amendment, so, as Grieve commented, we'll need to wait to see the detail of what they are proposing.  There are many ways the requirement for an "Approval and Implementation Bill" in the EU Withdrawal Bill could be formulated, each with implications for the degree of control Parliament could exert over the process.  For example, an "Approval and Implementation Bill" that simply states "the Withdrawal Agreement is hereby approved and forms part of UK law" would provide minimal scope for Parliament to dictate how the Agreement would apply in practice and would therefore amount to little more than a "yes/no" vote.

Another option would be for the Approval and Implementation Bill to provide for a detailed statutory scheme through which the terms of the Agreement are given effect in UK law, which would clearly give much power to Parliament in determining the scheme.  However, such a detailed mechanism would need time to develop, something that will not be in abundance if the Approval and Implementation Bill is to get through Parliament between the end of negotiations of the Agreement (pencilled in for Autumn 2018) and 29 March 2019.

Another important consideration will be what happens if Parliament refuses (or runs out of time) to pass the Approval and Implementation Bill.  The Government's recent commitment to enshrine 29 March 2019 into the EU Withdrawal Bill and its suggestion that Parliament failing to approve the Withdrawal Agreement would result in the UK leaving the EU with no deal could mean that Parliament is still faced with a fait accompli when deciding whether to implement the Withdrawal Agreement into UK law at the end of the negotiations.  In essence, although a significant concession, the jury is still out on whether this development will have a material impact on the negotiations themselves or the prospects of the UK successfully negotiating a deal.