A brief comment on the idea of “decoupling” HoC approval of the Withdrawal Agreement from its approval of the political declaration.
As a matter of domestic law, s.13 of the EU Withdrawal Act is the key.
Note that that section (see subsection (1)(b)) requires the HoC to have approved *both* the WA and the PD (“the framework for the future relationship”) before the WA can be ratified.
But NB too that it is also a condition of ratification that Parliament has passed an implementation Act (subsection (1)(d)).
There is the way out: if the Implementation Act repeals or amends s.13(1)(b), then the requirement for HoC approval of the PD vanishes and the WA can be ratified.
What about HoC control of the future relationship negotiations?
This is in my view critical: we are in the present mess precisely because May failed to get approval from the current HoC for her objectives (no doubt assuming she could bounce the HoC into agreeing what she came back with).
So the HoC should ensure that the Implementation Act contains provisions requiring the Govt to get HoC approval at the outset for its objectives (including changes in the PD) and for any change in those objectives, and to adopt any changes to those objectives made by the HoC.
That’s U.K. law: what about the international level?
Well, the WA refers to the PD (Article 184). But referring to it doesn’t mean that changing the PD is tantamount to changing the WA.
Indeed, the EU has made it clear that the PD could be changed if the U.K. changes its red lines.
If the U.K. had any specific proposal now, the PD could in principle be rewritten now.
But if the UK wanted to say “look, we need a few months to think about what we want” I can’t see why the EU and the UK couldn’t just record that the current PD would be reopened if the UK wished to enter into a materially different type of relationship than that set out in the PD
(The reality, anyway, is that the EU won’t be doing any serious negotiating until the new EP and Commission are settled in ie the autumn.)
On that basis, the UK could I think sign the PD even though it hadn’t been agreed by the HoC.
NB whether it’s wise for the HoC to approve the WA and not the PD (a “blind Brexit”) is another question.
FWIW, and as noted above, it should only be considered if it is clear that the HoC will, as a matter of law, be in control of the Govt’s negotiating position from now on.
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