Withdrawal Agreement Bill: Will Johnson now let parliament do its job?

Bringing the European Union (Withdrawal Agreement) Bill back before parliament, and using his majority to pass it, will be among Boris Johnson’s new government’s first business. This means that parliamentary scrutiny of the Bill is once again a pressing constitutional issue. The nature of that scrutiny and of the government’s engagement with it will not just be significant for the way in which Johnson’s Withdrawal Agreement is incorporated into domestic law. It will also be a significant early indicator of the new government’s approach to parliament’s functions of scrutinising the executive.

While the Bill initially passed its second reading in the House of Commons in October, MPs rejected the government's plan to restrict further consideration in the Commons to only three days. The Bill “fell” when parliament dissolved for the election and is now expected to be reintroduced later this week to restart the process of parliamentary scrutiny from the beginning. The planned timetable for scrutiny of the reintroduced Bill was uncertain on election night—Andrew Marr reported plans for a "ferocious acceleration" including sittings in the House of Commons on Saturday and the House of Lords between Christmas and New Year. Laura Kuenssberg predicted a more measured approach with the bulk of work on the Bill being postponed until the New Year. More detail on scheduling should become clearer today. Still, any timetable which results in a January Brexit will entail extremely quick passage of the Bill through parliament and therefore attenuated scrutiny of its provisions.

Scrutiny of the Bill is not the same as scrutiny of the Withdrawal Agreement itself. The WA is an international agreement. The WAB is the piece of domestic law which makes provision for the UK’s commitments within it. The success of this translation into the domestic context, rather than of the content of the agreement itself, will be the primary focus of parliamentary scrutiny of the Bill. Although it may well be that it is the first time some aspects of the WA are properly aired or widely appreciated, these issues are secondary to the process.

Parliamentary scrutiny of a Bill like this is not simply a safeguard that the legislation faithfully translates the substance of the international agreement into domestic form. It also involves parliament in the political choices which have to be made wherever there are multiple ways to institutionalise the agreement. Parliamentary scrutiny should ensure that government policy is achieved both successfully and appropriately.

The political choices inherent in the WAB will probably yield the first parliamentary skirmishes of the new government's term. In particular, the Bill (as previously published) included controversial choices on the scrutiny mechanisms for delegated legislation, on institutional arrangements for any extension of the transition period, on the ways in which new EU law would be scrutinised in the UK during that transition, on parliamentary involvement in the negotiating mandate for talks on the future relationship, and on the ratification requirement for that future relationship. Further areas of controversy are likely to be identified during the Bill’s passage through parliament—indeed, this is part of the point of the scrutiny process. When it is reintroduced, some of these aspects of the Bill may have been tweaked, but controversy will no doubt remain. Some will argue (wrongly, in my view) that the government’s proposals on the rules regulating any possible extension of the transition period are protected by the Salisbury convention, a constitutional rule which bars the House of Lords from obstructing legislation giving effect to government manifesto promises. There will be plenty to discuss.

A parliamentary majority—even a new one—is not a license to circumvent this process and no government should treat it as one. A majority government has significant power in parliament—effectively a license to dominate and control this scrutiny process. There is a resounding electoral mandate and substantial political pressure (not just domestically) to get the WAB through parliament in time for a January Brexit. But this should not entail under-scrutiny. Parliament has a constitutional duty to scrutinise the Bill and the government a corresponding duty to cooperate. The WAB might be the most significant piece of legislation in a generation. This makes it particularly important—for people across the political spectrum—that parliament gets it right. Just because it is oven-ready doesn't mean it should be under-cooked.

The government's willingness to engage properly will be a very important signal of its approach to the established institutions of UK democracy and its willingness to defend and (if appropriate) change its policies in parliament. The approach taken to these issues is—in our system—an important element of any government's legitimacy. The next few weeks will be crucial to the health of the post-Brexit constitution.