On Monday 10 December, the Prime Minister told the House of Commons she would no longer be asking it to vote on the motion to approve her deal with the EU on Tuesday 11 December.
The House had been expected, under the Business Motion it approved the previous week, to debate the approval of the negotiated withdrawal agreement and framework for the future relationship for two further sitting days and to vote on it on the evening of Tuesday 11 December.
The Prime Minister is now seeking further “assurances” from the EU as to the legal status and effect of the Northern Ireland backstop provision, which means it is not clear whether the Government believes that it still has “political agreement” with the EU.
So where are we now in terms of the approval process? This Insight looks at what might happen next.
A frozen debate, but no decision
The House did not formally take any decision on either the Government’s approval motion or any amendments to it. By deferring the debate, but not specifying when it will resume, the Government has effectively “frozen” that debate. No resolution has been adopted, but equally no motion or amendment has been rejected. Simply put, the Commons has not taken a decision.
This means that section 13(4) of the Withdrawal Act is not (yet) engaged: the Government does not currently have to make a statement as to any contingency plans it has in the absence of Parliamentary approval for its negotiated deal.
What significance does “political agreement” have?
Under the Withdrawal Act, the presence or absence of “political agreement” or “agreement in principle” between the UK Government and the EU is important for two distinct reasons.
Firstly, if the Government wishes to ratify a withdrawal agreement, one of the things it must first do is make a “statement that political agreement has been reached” for the purposes of section 13(1)(a) of the Act. This is one of three documents that must be laid before Parliament, alongside the “negotiated withdrawal agreement” and the “framework for the future relationship”. The Government made a statement that political agreement had been reached on 26 November 2018.
Secondly, if the Government concludes that “no agreement in principle can be reached”, or if we reach 21 January and “no agreement in principle has been reached”, then the Government must make a statement as to how it intends to proceed, and then hold a debate for the Commons to discuss its implications. This is also, separately, what the Government must do if the Commons formally decides not to approve the deal (as explained earlier).
Do we still have “political agreement” between the UK Government and the EU?
Given that the Prime Minister is now seeking further “assurances” from the EU as to the legal status and effect of the Northern Ireland Backstop provision, it is not clear whether the Government believes that it still has “political agreement” with the EU for the purposes of section 13(1)(a).
If it does still have that agreement, and its statement of 26 November to that effect still holds, it suggests that the Government is not legally required, as things stand, to make any statement on 21 January 2019 in the absence of further political developments. Any commitment to make a statement to the House on contingency plans before or by 21 January would be a political one, not the result of a legal obligation.
However, in both the Prime Minister’s remarks on 10 December and those of DExEU Minister Robin Walker on 11 December, the Government appears to be attaching continued legal significance to the deadline of 21 January 2019. Theresa May mentioned “21 January” on four occasions in the Chamber, and during the Urgent Question debate, Robin Walker said the following (emphasis added):
“In the unlikely and highly undesirable circumstances that, as of 21 January, there is no deal before the House, the Government would bring a statement to the House and arrange for a debate, as specified by the law.”
The fact that the Government is still treating the 21 January 2019 as a legally relevant deadline as regards what it must do in Parliament implies that political agreement may already have lapsed. Alternatively, it may suggest that such agreement could lapse (depending on the outcome of the Prime Minister’s further discussions with the EU) at some point between now and 21 January 2019.
If political agreement has lapsed and is not re-established what must happen?
If political agreement has lapsed, and no new statement of political agreement is reached, the Government must, within five calendar days of 21 January, make a statement setting out how it proposes to proceed. It must then move a motion for debate on its statement within five sitting days of 21 January.
When might the Government bring back a deal?
The Government could, legally, bring back a proposal to approve a deal any time before the UK formally leaves the EU. At the moment, that would mean any time before 29 March 2019. However, there are other requirements the Government must meet before it can ratify any deal. Most importantly it must also procure the passage through Parliament of the proposed EU (Withdrawal Agreement) Bill to implement the deal in domestic law. The Withdrawal Act 2018 requires this legislation to be passed before the Government can ratify the withdrawal agreement.
The Government has, however, suggested that it will bring back any deal it wishes Parliament to approve “before 21 January”. DExEU Minister Robin Walker said on Tuesday (emphasis added):
“Put simply, in keeping with the clear intention of the European Union (Withdrawal) Act 2018, the Government will ensure that the question whether to accept an agreement is brought back to this House before 21 January. If Parliament accepts that deal, we will introduce the European Union (Withdrawal Agreement) Bill to implement the withdrawal agreement in domestic legislation.”
This is a political commitment that goes beyond the legal requirements of the Withdrawal Act. The Act does not require a “meaningful vote” to take place on any deal before the 21 January.
For example, the Government could, legally, have made a statement that political agreement has been reached on 20 January and then scheduled a “meaningful vote” for some point in February or March. This would have superseded any requirement to make a statement on its contingency plans, even though the Commons had not expressed a view on that deal by 21 January.
There are only two hard constraints on the holding of the “meaningful vote”, whether by resuming the frozen debate or bringing forward a new one. The first is that the Government must “so far as is practicable” seek to hold that vote before the European Parliament votes on whether to consent to the deal (we had expected them not to do this until early March). Secondly, the vote must take place before the UK formally exits the EU, since the withdrawal agreement must be ratified before then.