Why implementing a deal could be Johnson’s biggest challenge

In the run up to the Conservative Party conference, Boris Johnson has maintained that his preferred Brexit outcome is to leave the EU with a deal on 31st October. But agreeing a deal with the EU is only the first step to delivering his goal. If the UK is to leave the EU in an orderly fashion on Halloween, then any deal will need to be implemented in UK law. The supreme court ruling on prorogation doesn’t change this.

Under the EU Withdrawal Act (passed in summer 2018) the government can only ratify an agreement with the EU if MPs have approved it in a “meaningful vote” and passed a Withdrawal Agreement Bill (WAB) to implement the deal. But the timings this October will be very tight.

The European Council meeting is due to be held on 17th and 18th October—when we are most likely to find out whether Johnson has been able to successfully renegotiate aspects of the deal. But the deadline for passing a meaningful vote in the “Benn Act” is 19th October—otherwise, Johnson will be forced to go to Brussels to ask for an extension to Article 50. So the prime minister will need to hold a vote on the deal almost immediately to avoid the delay to Brexit he has repeatedly ruled out.

Even if MPs do approve a deal, getting the WAB through will not be easy. The bill will be long, complex and contain controversial powers. Ministers will need to be able to make payments to the EU under the “divorce settlement,” the bill will need to allow EU rules to continue to apply to the UK during the transition period, and it will need to include provisions to implement the Northern Irish backstop—or whatever replacement Johnson can find. MPs who are willing to support the deal in principle may change their mind when they see what it means once implemented.

There is also the very practical time challenge of scrutiny. Parliament spent 273 hours scrutinising the EU Withdrawal Act in 2017 and 2018 (the government’s flagship Brexit bill which copies EU law into UK law), closely looking through the extensive powers which the legislation gave to ministers. But between 19th and 31st October there are only eight scheduled sitting days.

It is technically possible for the bill to pass in this time—providing not too many tweaks are needed to the bill drafted under Theresa May. The government can programme time to get the bill through the Commons, and the Lords are unlikely to hold up the bill if it has been approved by MPs. But this will be at the cost of proper scrutiny.

From a political perspective, the government may see the lack of time available to pass the bill as an advantage. Approving a meaningful vote will have removed the need for Johnson to ask for an extension, so the government will be legislating against a ticking clock. Failure to pass the bill would, even if parliament had voted in favour of a deal, lead to a no-deal exit on 31st October—and this deadline could put pressure on those MPs opposed to no deal to vote with the government.

But the government will need to win multiple votes on the bill—at each stage of its passage as well as on amendments tabled by backbenchers. These could try to address negotiating objectives for the future relationship (for example additional protections for workers and the environment), or parliament’s role in the negotiations.

There is still a risk that the bill won’t pass. MPs in favour of no deal could choose to pass the meaningful vote—to avoid an extension to Article 50—but then oppose the passage of the WAB to get to no deal. Depending on the numbers, the government may need to find a different majority to get the bill through.

That is one reason the EU insists not just that the UK government agrees a deal, but that it can show it has a “stable majority” to get a deal through parliament. May’s experience showed that a deal with the EU is no guarantee of parliamentary passage, particularly if MPs think their preferred outcome (no deal, a referendum or revocation) is still on the table.