We really are now reaching the crunch point in the Brexit negotiations: the Irish backstop is the last outstanding issue in the withdrawal agreement. While this remains a major hurdle, reaching agreement with the EU is only one side of the Brexit coin. If Theresa May manages to agree a deal in Brussels, she still has to get it through parliament. What obstacles lie in her way?
There are the familiar political difficulties. Brexit divides both the Conservatives and Labour which would make this process a challenge in any circumstance. But it is a task made much harder with a minority government. The DUP agreed to support the government on Brexit votes last year but its MPs are now threatening to vote against the deal and are sabre rattling over the Budget and the rest of the government’s legislative programme.
On the Conservative backbenches, members of the Eurosceptic European Research Group (ERG), led by Jacob Rees-Mogg, have also said they will oppose the prime minister’s deal. Of the around 80 members, Steve Baker, vice chair of the ERG and former DExEU minister, has said he believes at least 40 would be willing to vote against the government. On the Remainer side, a number of Conservative MPs have come out in support of a second referendum; they may be willing to vote against the government if they believe this would be a possible outcome.
There are reports the prime minister is courting around 30 Labour MPs to get the deal through, on the basis that her deal is a better alternative to no-deal. But if the scale of the revolt on the government benches is as big as it seems, she will need as many of them as she can get.
Needless to say this is not a happy situation. Rarely has parliament been so divided on such an issue of such fundamental constitutional importance.
Yet these political challenges are aggravated by the extremely tight timeframe. The government has promised parliament a “meaningful vote” on the final deal before it introduces a new bill to implement the withdrawal agreement, the EU Withdrawal Agreement Bill (WAB). Only once the WAB has received Royal Assent can the government then ratify the withdrawal agreement. And that is only what needs to happen in the UK: the European Parliament also needs to approve the deal before it can be ratified. This all needs to happen before 29th March 2019 to avoid a cliff-edge exit. If the parliamentary process hasn’t finished, or parliament opposes the government at any of these stages, then the default is that the UK will leave the EU without a deal. 29th March 2019 is the deadline of the Article 50 two-year negotiating period and is the exit date written into the EU Withdrawal Act.
There are around 70 sitting days in parliament between the proposed special summit on 17th and 18th November and exit day, and only 50 if a deal isn’t agreed until the December Council. The Institute for Government recommended that parliament should have two weeks to review the agreement followed by five days of debate ahead of the “meaningful vote.” But this may need to be compressed as timelines get tighter and pressure builds to ensure the WAB is in place.
Previous legislation relating to Treaty changes at the EU level has taken anywhere from 11 to 41 sitting days to pass through parliament before receiving Royal Assent. And parliament approving a motion on the deal (in the meaningful vote) does not mean that it will just wave through the bill. This important point is under-appreciated. Opponents to the deal may see the WAB as another opportunity to influence the process, and other MPs who supported the prime minister in the initial vote may not like how the government plans to implement it. A ticking clock to 29th March 2019 may be a strong incentive for MPs to pass the legislation, but this is not a guarantee. Parliament may need to sit on Fridays, or sit for longer, to avoid running out of time.
Of course all this is based on the assumption that the UK and the EU will actually reach agreement this Autumn. This is far from certain. And if the UK faces a no deal exit, there will be different pressures on parliament’s time. This includes passing the 800 pieces of statutory legislation needed to amend UK domestic law to avoid a legal hiatus after March 2019, as well as a potential new piece of primary legislation to protect the rights of EU citizens living in the UK, as the prime minister has promised. The later it becomes clear the UK will be leaving the EU without a deal, the less time there will be to ensure all the necessary legislation is in place.
The prime minister may find that securing a deal with the EU is the easy part.
