We are told that today, a motion is to be moved for the House of Commons to approve the negotiated Withdrawal Agreement between the UK and the EU. This will be for the third time of asking that the Agreement has been brought before the House of Commons.
Whilst the motion may be politically significant, it does not have the same legal meaning as the previous motions on the Agreement (twice defeated). If passed, it will not be the meaningful vote writ into law.
For the Withdrawal Agreement to be ratified and become effective, Section 13 of the European Union (Withdrawal) Act 2018 requires that:
- a statement that political agreement between UK/EU has been reached
- a negotiated withdrawal agreement; and
- a framework for the future relationship between the EU and UK after withdrawal
have all been laid before Parliament and that the Withdrawal Agreement and Framework have been approved by a resolution of the House of Commons and an Act of Parliament passed containing provision for the implementation of the agreement. That is what is needed for ratification.
So, with only one of the ingredients for ratification being tabled on the motion, if passed, it will not have legal effect under the Act.
What is being done today may well be a way for the Government to negotiate its way around the Parliamentary conventions that do not permit a motion to be brought before the House that is substantially the same as a previously defeated motion (who would have thought that the words Erskine May would find their way to the front pages of our tabloid press). And if the motion is passed, it might also meet the EU’s conditions for an extension of the Article 50 notice period to 22 May 2019; however, unless the 2018 Act conditions for ratification are amended by a new Act of Parliament, then the constitutional requirements for Parliamentary approval of the Withdrawal Agreement will still need be followed in the days ahead….including, another ‘meaningful vote’.
Nothing is straightforward in the governance of the UK at the moment.
Dominic Hopkins is head of Disputes and Litigation at Hewitsons and an Associate Member of the UK Constitutional Law Association. For more information please contact Dominic Hopkins on 01604 233233 or click here to email Dominic.