The question (which I asked in the thread) whether this is (a) a final text or (b) a summary of a political agreement is legally rather important. And the legal difference has real political consequences.
Mujtuba thinks it’s (b) (a political statement: think of it as a “heads of terms”, setting out the gist of what is to be agreed but not itself legally binding).
Why does it matter? Well, s.1(1)(a) of the Benn Act explains what is needed to avoid the PM having to ask for an extension.
A minister must put before the HoC “a statement that the United Kingdom has concluded an agreement with the European Union under Article 50(2) of the Treaty on European Union and a copy of the agreement.”
It is clear from the verb “concluded” and the phrase “an agreement... under Article 50(2)” that this must be the agreed binding legal text, not the heads of terms.
So if all that’s agreed are heads of terms, s.1(1)(a) can’t be satisfied. (And any attempt to argue that a motion approving mere heads of terms was enough could be challenged in court: the court could, and in my view would, declare that it was not a motion fulfilling s.1(1)(a)).
So if Mujtuba is right, Johnson will have to get out his pen on Saturday and dutifully write his letter asking for a three month extension.
He could of course ask the HoC to indicate its approval of the heads of terms. That would have no legal effect but would signal politically that the HoC would vote for it when turned into legal text.
Finally, a key practical point: the final version of the Bill implementing a Withdrawal Agreement can’t sensibly be put before Parliament to vote on until the agreement itself is in final form. The Bill will need to refer to and adopt the terms of the final version.
So formal Parliamentary debate on the Bill can’t sensibly start until the legal text of the WA is fixed. (And indeed, until it’s fixed, scrutiny is hard: the answer to questions as to what it means will often be “wait for the text”.)
None of that means the Govt shouldn’t publish the draft Bill. May should have done that months ago. But Parliament’s work on it can’t sensibly start until we have a final text of the agreement is is implementing.
