Despite Westminster’s convulsions over Brexit, now that a draft Withdrawal Agreement is on the table, the next stage of the process governing the UK’s exit from the European Union has been set in motion. But what actually needs to happen next for the different parts of the Brexit deal to get ratified, and what role do different parliaments have in the process?
The Draft Withdrawal Agreement that was published on November 14 lays down the rules for the first two of three phases of Brexit: the UK’s actual withdrawal from the EU on March 29, 2019 and a transition period until the end of 2020 – with one possible extension.
The third phase is the new future trade relationship between the EU and the UK, a short outline for which was published in an accompanying political declaration. This political declaration is not legally binding, but would be the subject of a second agreement on the future that would require its own ratification process.
The UK parliament must approve both agreements. But the role of the EU parliament and the parliaments of each of the 27 member states differs in ratification of the Withdrawal Agreement and the future trade agreement.
Getting the divorce agreed
The Withdrawal Agreement is an international agreement or treaty. Treaties are typically negotiated by the government or executive branch, in this case the UK government on the one side and the EU’s chief Brexit negotiator, Michel Barnier, acting on behalf of the Council of the European Union. The Council represents member states’ interests in the institutional architecture of the EU, and is made up of ministers of the member states.
In the UK, treaties must be laid before parliament under the so-called Ponsonby rule before the government ratifies them. This process was codified in law in 2010 and means parliament can object to a treaty within 21 parliamentary sitting days and delay its ratification indefinitely.
However, for both the Withdrawal Agreement and the framework for the future relationship agreement, parliament’s role has been enhanced and MPs will have a “meaningful vote” on the content of both documents. This was put into law under Section 13(1) of the European Union (Withdrawal) Act 2018, which requires the draft agreement to be put to both houses of parliament. MPs must approve it and at the same time pass implementing legislation.
The EU parliament, including the MEPs from the UK, must consent by simple majority to the Withdrawal Agreement – but does not have the power to amend it. In this case, the Council of the EU needs to adopt it by super-qualified majority. This means it needs to get support of 72% of the 27 participating member states (or 20 member states), and the support must also represent 65% of the population of the 27 member states. Although the UK is still a full member of the EU with full rights in the Council of the EU, it is not participating or taking part in the council’s decisions concerning Brexit.
But there is no role for national parliaments of the 27 member states in the context of the Withdrawal Agreement, meaning for example that the French, Spanish or Polish parliaments do not have to agree to it.
The future relationship
A full agreement governing the future relationship between the UK and the EU, that puts into the law the short outline published in mid-November, is still some years away. It can only be negotiated once the UK has left the EU, as only then will the UK regain its power to conclude international trade agreements.
When it comes to any future trade agreements, it is unclear whether the UK parliament will get the enhanced involvement in ratifying it that it has in the context of the Withdrawal Agreement, or whether only the ordinary rules relating to treaties apply, as the government has implied. The House of Commons Committee on Exiting the European Union has been critical of this, calling the ordinary process “inadequate” as it does not guarantee “a debate or vote on a treaty before it is ratified.”
However, the situation on the EU side is constitutionally more complex than with the divorce part of the Brexit process. In addition to the EU parliament, which must consent to the future trade agreement, all 27 member states will need to ratify it according to their national constitutional provisions.
This is because the future trade agreement between the UK and the EU would be a mixed agreement, dealing with some matters for which the EU is responsible and with some matters which fall into what’s called “shared competence” between the member states and the EU. For example, the Court of Justice of the EU (CJEU) ruled in 2017 that provisions relating to investor-state dispute settlement procedures and non-direct foreign investments fall into areas of shared competence.
The exact process depends on the constitutional requirements in each member state, but comprehensive free trade agreements have to be approved by all national parliaments. There is a risk that a single member state may not ratify the deal and so could block the agreement from coming into effect. This risk became reality in the case of the Canada-EU Trade Agreement (CETA), when one of the regional parliaments of Belgium, the parliament of Wallonia, rejected the deal in 2016. Italy also threatened not to ratify CETA, while Austria and Germany delayed ratification pending the outcome of judicial proceedings. CETA’s full ratification is still pending.
All this means that while the biggest hurdle for the Withdrawal Agreement remains getting it agreed by the UK parliament, ratifying the future trade agreement will be a much more complex process that could be rocky and take years. For the UK parliament it is a potential opportunity for an increased role in international treaty making.