A no-deal Brexit is more likely than you think, because of a piece of legislation which you’ve probably never heard of and which you’ve almost certainly not seen. In hushed tones in Westminster, Whitehall, think tank corridors and university seminar rooms, it is called the European Union (Withdrawal Agreement) Bill—the “WAB.” If it is not passed by the House of Commons and the House of Lords and given Royal Assent by the Queen, Britain cannot leave the European Union with a deal, on 29th March, or at any point. And regardless of what happens next month, the fact that the WAB has not yet been published is a democratic and constitutional outrage.
For all the talk on rolling 24-hour news channels, live blogs and social media about the meaningful vote on the prime minister’s deal with the EU, securing a House of Commons majority for the Withdrawal Agreement painstakingly negotiated with Michel Barnier and his team is only half the battle for the government. Those hard Brexiteers who are comfortable with a no-deal Brexit have an additional means of securing their objective.
Hiding in plain sight in the European Union (Withdrawal) Act 2018 are two conditions which must be satisfied before the government can ratify the Withdrawal Agreement and leave the EU with a deal: first, the meaningful vote; second, legislation to implement the Withdrawal Agreement.
Let that sink in for a moment. Even if the House of Commons approves the Withdrawal Agreement, Britain still cannot leave on 29th March (or at any time) without passing the implementing legislation. For Britain to leave with a deal, the WAB must leave the dusty desk drawer in which it is languishing and be scrutinised and passed by both Houses of Parliament.
This is, to say the least, unlikely to happen soon. The WAB is legislation of the highest political, legal and constitutional significance. It will provide for the payment of the “divorce bill” negotiated with the EU. It will also provide for the continuing supremacy of EU law over UK law during the transition period (which will run into the early part of the next decade). Given the absence of consensus amongst lawyers and politicians on how this can be maintained, there will have to be debate and discussion about how the WAB can achieve what it needs to achieve.
Just as controversially, the WAB will provide for Britain to be subject to the jurisdiction of the Court of Justice of the European Union during the transition (and, as far as EU citizens’ rights are concerned, for even longer). The rights of EU citizens will also have to be entrenched, so that they cannot be removed by parliament in the future. It is not difficult to imagine, for instance, a law passed after Brexit giving priority in public sector hiring to UK workers, discriminating against EU citizens. Entrenching rights has never been done before, not even in the Human Rights Act 1998, itself a hugely controversial constitutional innovation—the WAB will have to go much further.
For hard Brexiteers this legislation will be absolutely toxic. The WAB will seek to qualify the sovereignty of the UK parliament. You can write the headline for the ERG press release: “UK Vassalage Provided for by UK Law.”
There are long-serving Members of Parliament who have railed for years against the supremacy of EU law and the jurisdiction of the Court of Justice. Will the likes of Peter Bone and Peter Lilley roll over to have their tummies tickled when the WAB, which seeks to cement supremacy and the Court of Justice in UK law, is introduced?
In any event, between now and 29th March there is insufficient time to give the fundamental questions here the scrutiny they deserve. To put it mildly, it is outrageous that the WAB has not yet been put in the public domain. Many lesser pieces of legislation—dozens of them in fact—have been published in draft form before being introduced in parliament for pre-legislative scrutiny by a parliamentary committee, civil society, the media and members of the public.
If and when the meaningful vote succeeds, Brexiteers’ howls of outrage about the WAB will be entirely justified—and anyone concerned about constitutional norms should join their mournful chorus. The WAB should have been published months ago, when the Withdrawal Agreement was concluded. Not to have done so—presumably because of fear of Brexiteer backlash—was an omission of grave constitutional and political impropriety.
No wonder ministers have started to float the possibility of delaying Brexit beyond 29th March to allow time for the WAB to be passed. But even if the EU member states consent unanimously to a delay, there is no guarantee that parliament will ultimately agree to pass the WAB. If it doesn’t, a no-deal Brexit awaits.
Paul Daly teaches public law at the University of Cambridge, where he is a Fellow of Queens’ College