Common Paper WAB Ratification – Brexit

Withdrawal Agreement Bill: Ratifying the Withdrawal Agreement

October 22, 2019 Graeme Cowie

The UK Government and the European Union reached agreement on a revised Withdrawal Agreement (a draft treaty text) and Framework for the Future Relationship (a joint political declaration, but not itself a treaty) on Thursday 17 October 2019. However, this was not the end of the approval process: each party must proceed to complete their respective constitutional requirements for ratifying the treaty before the Article 50 process can be brought to an end.

This Insight looks at how treaties are ratified in the UK, what the UK’s ratification requirements are for the Withdrawal Agreement, and how the Government proposes to meet or replace them in its European Union (Withdrawal Agreement) Bill (the ‘WAB’).

What is the default requirement for ratifying treaties in the UK?

In general, treaties do not require proactive Parliamentary approval. Treaties are negotiated, signed and ratified by the UK Government. However, Parliament has a role in the process that varies depending on the context and the type of treaty.

Some treaties need domestic law to be changed to ensure the UK can meet its (new) international obligations. When the UK Government negotiated an accession treaty to the European Economic Community, Parliament passed the European Communities Act 1972. Without that Act, UK courts would not have given effect to Community law, and the UK would have been in breach of its new commitments. If the UK cannot yet implement a treaty, it may be premature to ratify it.

In general, but not for all treaties, Part 2 of the Constitutional Reform and Governance Act 2010 (‘CRAG’) requires the Government to lay a copy of the final treaty text before Parliament. Except in “exceptional cases” (where a Minister can disapply the waiting period), the Government must then wait 21 sitting days to allow Parliament to scrutinise the treaty. If time is made for a debate in the Commons, and MPs resolve against ratification of a treaty, this prevents the Government from ratifying it. However, since 2010 no treaty has been rejected in this way: legally, the Government does not need to make time for a debate to take place.

In the case of treaties concerned with the powers of the EU, domestic law has required an Act of Parliament to be passed before the Government can ratify. For example the (now repealed) section 12 of the European Parliamentary Elections Act 2002 made it necessary to pass the European Union (Amendment) Act 2008 before the UK could ratify the Lisbon Treaty. Although it never had to be used, the European Union Act 2011 additionally imposed a referendum requirement on certain types of EU treaty change before the Government could proceed to ratify.

What are the UK’s requirements for ratification of the Withdrawal Agreement?

In July 2018 Parliament passed the European Union (Withdrawal) Act 2018 (‘the 2018 Act’). Section 13 of that Act states that a Withdrawal Agreement treaty cannot be ratified unless four conditions have been met:

copies of both the negotiated Withdrawal Agreement and the Framework for the Future Relationship have been laid before both Houses, with a “statement that political agreement has been reached”
the House of Commons has, on a motion of a Minister, approved those documents (the so-called ‘Meaningful Vote’
the House of Lords has had the opportunity, on a motion of a Minister, to “take note of” those documents; and
a further Act of Parliament to implement the Withdrawal Agreement has been passed.

On Saturday 19 October 2019 only two of these conditions were met (the laying of documents and the holding of a debate in the House of Lords). MPs withheld approval for the revised Brexit deal, indicating that approval would only be forthcoming if and when the implementing legislation has passed.

Because the UK’s negotiated Withdrawal Agreement is not an exempted treaty under Part 2 of CRAG, the Government must also meet or supersede the conditions set down by that Act.

So why is the Government trying to ratify?

Notwithstanding the vote on Saturday, media reports suggest the Government has concluded it can now persuade a majority of MPs to support its efforts to ratify the Withdrawal Agreement. The fact that one of the approval conditions is the passage of a subsequent Act of Parliament means that, if MPs want to pass the Act, they can effectively override the existing ratification requirements. A core tenet of Parliamentary sovereignty is that a new Act of Parliament can override a prior one. The section below describes how the Government propose to do this.

What does the WAB do?

There are two key clauses in the WAB relevant to ratification: clause 32 and clause 33.

Clause 32 repeals section 13 of the 2018 Act. It makes clear that “none of the conditions” set out in that provision apply to the ratification of the Withdrawal Agreement. Passing the WAB with this clause included might function as a “proxy” for a Meaningful Vote: if MPs want to allow the Government to ratify the agreement, repealing section 13 achieves the same result.

Clause 33 stipulates that Part 2 of CRAG does not apply to the ratification of the Withdrawal Agreement. The Government therefore does not have to lay a copy of the final treaty or wait 21 sitting days for the purposes of that Act. However, it does not prevent the CRAG process from applying to any future treaty to modify the Withdrawal Agreement.

What is the default requirement for ratifying treaties in the UK?

What are the UK’s requirements for ratification of the Withdrawal Agreement?

So why is the Government trying to ratify?

What does the WAB do?

Further reading