A thread on what (under the Benn Act (BA) and Fixed Term Parliament Act (FTPA)) happens and should happen next if there is an agreement between the EU27 and the UK government as to the terms of withdrawal at the 17-18 October EU Council.
I’ll assume the key vote(s) take(s) place on 19 October.
On 19 October, the HoC would then have to vote on a motion approving the agreement under s.1(1)(a) BA approving the agreement.
The only legal effect of that motion would be to remove the PM’s duty to apply for an exemption.
The putative Withdrawal Agreement could not actually be ratified (and become a legal certainty) until (a) its text is settled (unclear if that could happen by 19/10 even if agreed in principle) and (b) a Withdrawal Agreement Act was passed by Parliament.
For both reasons (or for (b) on its own even if a text of the agreement is settled) MPs should be reluctant to approve a motion under s1(1)(a) BA, even if they are content with the outline withdrawal agreement.
First, as any lawyer will tell you, don’t agree a complex agreement until you see the text. The devil is often in the detail.
And even if the text of the agreement is available, the (equally critical) text of the complex legislation needed to implement it won’t be (or will only just be).
That text, as drafted for the May WA was, disgracefully, kept locked in a drawer by the May government during its attempts to get the HoC to pass its WA.
That legislation will have to do controversial & important things. Eg it will have to reinstate the direct effect of EU law during the transition period. It will (probably) now need to repeal the current statutory block on agreeing that NI is in a different customs area from GB.
It will have to maintain the authority of the ECJ in relation to citizens rights for the agreed period after transition. And it will have to allow implementation of joint committee decisions. Etc. All this will need to scrutinised to see if it is acceptable and works.
Second, approving the motion removes the PM’s duty to get an extension.
And if there’s no extension duty, (i) the PM or extreme Brexiteers could in theory then junk the agreement and go for crash out and (ii) Parliament will face rushed withdrawal legislation with a crash out gun to its head if it dares to query any of it.
Since the withdrawal agreement bill has not been published, and is constitutionally complex and important, rushed consideration would be unwise in the extreme.
So the HoC should refuse approval and force an extension.
Those who want a confirmatory referendum could amend the motion to state that approval would be given only if there is such a referendum.
That would not be approval under s1(1)(a) BA. So Johnson would have to write his letter. But it would have no other legal effect.
Legal force to a referendum would require either stand alone legislation or a successful amendment to the Withdrawal Agreement Bill.
Those unhappy with Johnson’s planned Canada minus minus* final Brexit destination could seek to amend the s1(1)(a) motion to reject approval on that ground and set out a different final destination: but again that has no legal force until expressed in legislation.
(* the minus minus is inevitable if the government seriously means to reject level playing field commitments: the EU has made that clear, and the politics of that are clear and immovable.)
After extension the next question will be an election. That decision is for the HoC - either agreeing by 2/3 a government motion or passing a vote of no confidence in Johnson (and not going for an alternative PM).
Those advocating a 2nd referendum will have to decide whether (1) to put their cause to an election (in which case they vote for one) or (2) to try to get one before an election.
Course (2) involves (a) defeating an election (b) getting a referendum amendment to the Withdrawal Agreement Bill and (quite possibly) (c) getting a further extension agreed to get time for it (Jan 2020 would be too short).
Quite challenging on Parliament numbers: and also the legitimacy of a 2nd referendum agreed by this Parliament will be seriously challenged.
On the other hand, after an agreed deal, the case for a simple choice between the agreed deal and remain becomes a better one: crash out would no longer be an option the government was keeping on the table.
For those seeking not a referendum but a closer arrangement with the EU, the first question is whether there should be an election?
But since no party is offering a soft Brexit without a referendum that option looks unattractive to those who don’t want a referendum.
But the strategy of refusing an election and trying to amend the Withdrawal Agreement Bill doesn’t look promising either: any such amendment would only direct the government’s negotiations and any close deal would then have to be negotiated.
And since an election well before then seems inevitable, any such amendment could simply be reversed by a new Parliament.
In the end a soft Brexit strategy ultimately requires the election of a soft Brexit majority: but that means an election after passage of the Agreement Bill, ratification of the Withdrawal Agreement and Brexit, so that a referendum is off the table.
Footnotes: @Brigid_Fowler reminds me that there actually has to be an agreed text of a withdrawal agreement for Parliament to approve under a section 1(1)(a) BA motion. So the possibility of not having that text doesn’t arise.
But Parliament may well not have the text of the legislation by then. And in either case it will have had no real chance to read and absorb either. So very unwise to assume either are satisfactory at that point.
