The final constitutional steps to withdrawal

Posted on 06 Feb 2020 by Brick Court

Emily MacKenzie

At 11 pm GMT on 31 January 2020, the UK left the EU. But what final steps had to be taken for this to happen lawfully?

Once the Withdrawal Agreement had been agreed in negotiations in October 2019, both parties to it – i.e. the UK and the EU –  had to complete the proper processes for ratifying it in accordance with their constitutional requirements. So what did those comprise?

UK ratification

In the UK legal order, the government ratifies treaties in accordance with its prerogative powers. However, before the government could ratify the Withdrawal Agreement, an Act of Parliament was needed.

One reason why this was the case was that Parliament had made this a requirement in the European Union (Withdrawal) Act 2018 (“EUWA”), which it enacted in June 2018.

Section 13 EUWA (which came into force immediately) was headed “Parliamentary approval of the outcome of negotiations with the EU”. This was the provision requiring the so-called “meaningful vote” on any withdrawal deal. Section 13 provided that a withdrawal treaty might only be ratified if certain conditions were met. The conditions were that (i) a statement that “political agreement” had been reached, together with copies of the agreement and the framework for the future relationship, were laid before both Houses, (ii) they were approved by a resolution of the House of Commons, (iii) a motion for the House of Lords to “take note” of them was tabled and debated (or the five-day time-limit for concluding that debate had expired) and (iv) a further Act of Parliament was passed to implement the agreement.

Therefore, for the government lawfully to ratify the Withdrawal Agreement, either these conditions needed to be met, or section 13 of the EUWA needed to be repealed.

In the end, the repeal option was taken. The European Union (Withdrawal Agreement) Act 2020 (“2020 Act”) received royal assent on 23 January 2020 and, by section 31, it repealed section 13 EUWA. The explanatory notes to the Bill state that this was done “to ensure that the Withdrawal Agreement can be ratified in a timely and orderly manner, and to remove provisions that are no longer needed” (para 319).

It also dealt with a further potential hurdle: section 32 of the 2020 Act disapplied section 20 of the Constitutional Reform and Governance Act 2010 in relation to the Withdrawal Agreement. This provision ordinarily (although it permits exceptions) prevents the government from ratifying a treaty unless a copy of it is laid before Parliament and 21 sitting days are given to allow for Parliamentary scrutiny of the treaty. The explanatory notes to the Bill state that this was disapplied in relation to the Withdrawal Act to “[avoid] any delay that could be created by the 21 day process” (para 322). The notes go on to clarify that any future modifications of the Withdrawal Agreement may still have to go through the section 20 process.

So the passing of the 2020 Act permitted the government to proceed to ratify the Withdrawal Agreement. The Prime Minister signed the Withdrawal Agreement on behalf of the UK, using his prerogative powers, on 24 January 2020. The UK’s EU ambassador then gave written notification confirming the UK’s ratification of the Withdrawal Agreement to the European Council on 29 January 2020.

EU ratification

On the EU side, the requirements for ratifying the agreement were set out in Article 50(2) TFEU. That provides that an agreement must be “concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament”. The European Parliament had said that it would only give its consent once the UK ratification process was complete. It therefore did so on 29 January 2020. The Council gave its vote of approval the following day, using the written procedure.

Implementing the Withdrawal Agreement in domestic law

Because the UK is a “dualist” state, the mere fact that a treaty has been ratified does not mean that it takes effect in UK law. The entry into force of the Withdrawal Agreement at 11 pm on 31 January 2020 meant that the UK was bound by that Agreement on the international plane, but domestic rights and obligations would have remained unaffected absent domestic legislation to give effect to the Agreement in national law.

This was also the role of the 2020 Act. It gives effect to the Withdrawal Agreement in UK law, including by amending the EUWA, although how it achieves this is not straightforward and will have to be the subject of a future post.