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Analysis

Offer of law to approve Brexit deal doesn’t go far enough

by Nick Kent | 14.11.2017

The government’s promise of fresh legislation on a Brexit deal is a concession. But other developments could make a disastrous hard Brexit more likely.

First the good news…

Ministers have accepted the principle behind the key amendment tabled by Tory backbenchers, and widely supported in the House of Commons, that it should be parliament not ministers that decides whether or not the agreement with the EU is good enough. (See amendment 7).

It also makes sense that the Brexit deal (including what it will cost) and the transitional agreement should be covered by legislation. Unlike a treaty, parliament can amend this.

Legislation incorporating the Brexit deal in UK law may also help reassure our EU partners. It will allow EU citizens in the UK to enforce their rights in the British courts after Brexit. That may help the government persuade the other EU countries to move onto discussing our future relationship at next month’s crucial summit.

Now the bad news…

We have a promise of new legislation on a Brexit deal but no commitment about when it will be published, let alone when MPs will vote on it. The government could delay the new Bill until the last minute, forcing parliament to accept the deal without challenging its contents. It is true that ministers have also promised a separate vote on the deal before legislation but there is no legal requirement for it to happen in time to influence things decisively before we quit the EU.

What’s more, last Friday the prime minister said the Withdrawal Bill would be amended to include the Brexit date. Previously it left this date to be decided and approved later, thus allowing an extension of the negotiating period, as provided for in Article 50. By putting the date of 29 March 2019 in the Bill, ministers have made the timing question even more important. They have also made it more difficult to extend the negotiating period if that is needed because doing so would require primary legislation to be passed.

Finally, twice in recent weeks Brexit Secretary David Davis has emphasised the possibility of the UK leaving without any agreement – the hardest of hard Brexits. He said yesterday that, if parliament rejected the new Bill he’s promised to approve our exit deal, we’d just leave without an agreement. This came on top of his previous, somewhat melodramatic declaration that the UK and the EU might still be negotiating in the final hours before 29 March 2019. That also raised the prospect of leaving without agreement.

Effective parliamentary action has forced ministers to make the important concession of promising legislation on the final deal. But the government hasn’t gone far enough. MPs need to keep up the pressure and drive home amendments that would remedy the remaining defects. Parliament, not ministers, must get to decide whether any Brexit deal is good enough and, if no agreement has been reached, whether the UK should leave in March 2019.

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Edited by Hugo Dixon