Negotiations between the UK and the EU on a future relationship agreement are currently ongoing. The Brexit transition period provided for in the UK-EU withdrawal agreement is due to end at 11pm on 31 December 2020. If the two sides do not agree a deal by then, by default the UK and the EU will trade on WTO terms and tariffs from 1 January 2021. Some things will change at the end of the transition period, whether or not a new UK-EU deal is in place. The House of Commons Library has produced a series of briefings covering these changes across different policy areas.
The House of Lords adjourned for its Christmas recess on 17 December 2020. As things currently stand, the House is not scheduled to sit again until 5 January 2021. However, announcing the recess, Baroness Evans of Bowes Park, Leader of the House of Lords, said that “if developments are such that we are required to meet again before 5 January, the necessary arrangements will be made, whatever they may be”.
This article examines how the House could be recalled and what the role of the Lords would be in ratifying any deal that might be agreed between the UK and the EU.
House of Lords’ role in ratification
What is ratification?
Ratification is the final stage in the process of concluding an international treaty before the treaty formally enters into force. The Max Planck Encyclopaedia of Public International Law (£) explains the usual sequence as follows:
There is, first of all, the pre-negotiation stage: domestic actors need to acquire the approval of the competent domestic authorities to engage in negotiations. Then follows the negotiation stage: representatives of the entities involved, duly empowered by their respective authorities, sit down together in order to reach agreement. The text of the said agreement will typically be authenticated, adopted, and signed. In some cases, signature acts as the final expression of consent to be bound; in such case, the treaty can be said to enter into force upon signature. In other cases—often the politically more sensitive ones—the text itself will specify that ratification or a similar procedure will still be required. In such a case, the municipal authorities are expected to submit the treaty to some domestic body for approval; often this will be a parliament. Once approval has been given, the competent domestic authority can proceed to ratify the treaty, after which it may enter into force.
Constitutional Reform and Governance Act 2010
The Constitutional Reform and Governance Act 2010 (CRAG) contains requirements about what must happen in UK law before the Government can ratify a treaty. The usual process, as set out in section 20(1), is that a treaty cannot be ratified unless:
- a minister has laid a copy before Parliament;
- the treaty has been published in a way that the minister thinks appropriate; and
- a period of 21 sitting days has elapsed since the day after the treaty was laid before Parliament, without either House resolving that it should not be ratified.
Should the Commons resolve against ratification, the minister may lay a statement indicating that the minister is of the opinion that the treaty should nevertheless be ratified and explaining why. A second period of 21 sitting days is then triggered, during which the Commons may resolve again against ratification. Similarly, the minister may then lay another statement. In such a way the Commons theoretically has the power to delay ratification indefinitely.
The House of Lords does not have this power. Should the Lords resolve against ratification and the Commons not resolve against ratification, then the treaty may be ratified “if a minister of the crown has laid before Parliament a statement indicating that the minister is of the opinion that the treaty should nevertheless be ratified and explaining why”.
While CRAG gives the Commons, at least in theory, the ability to delay indefinitely the ratification of a treaty, it does not require either House to debate or vote on or actively approve a treaty before it can be ratified. The Government is under no legal obligation to make time for a debate to take place in the House of Commons on a motion to resolve against the ratification of a treaty. Since CRAG was passed in 2010, it has not been used to reject ratification of a treaty. There has been some criticism recently about the level of scrutiny provided by the CRAG procedures. This is covered further in the Lords Library briefing, ‘Parliamentary scrutiny of treaties: Debate on committee reports’.
There are ways in which ratification can take place without following the usual process laid out in section 20 of CRAG. One way is provided for in CRAG itself: section 20 can be disapplied using provisions of section 22 “if a minister of the crown is of the opinion that, exceptionally, the treaty should be ratified without the requirements of that section having been met”. Section 22(3) requires the minister to explain in a statement why they are of that opinion. However, this exceptional procedure cannot be used if either House has already resolved against the treaty being ratified.
Another way is for primary legislation to disapply the CRAG requirements for a particular treaty. This is what happened with the withdrawal agreement negotiated between the UK and the EU. Section 32 of the European Union (Withdrawal Agreement) Act 2020 provided that section 20 of CRAG did not apply to the withdrawal agreement.
Passing implementing legislation
The Government is expecting it would need to pass primary legislation to implement aspects of a future relationship agreement with the EU. This is because the UK is a dualist state. That means international treaties do not automatically become part of domestic law. UK courts have no power to enforce treaty rights and obligations unless legislation is passed to implement the relevant treaty provisions into domestic law. For example, the European Union (Withdrawal Agreement) Act 2020 was the primary legislation passed to enable provisions of the withdrawal agreement to be implemented in UK law. The Government has also made statutory instruments (secondary legislation) under that act and other ‘parent’ acts to implement provisions of the withdrawal agreement in domestic law.
Foreign and Commonwealth and Development Office (FCDO) guidance on treaties says that if domestic legislation is needed to enable the UK to give effect to its obligations under a treaty, the legislation should be in place before the treaty comes into force, so that the two can come into operation at the same time. The FCDO therefore usually insists that any necessary UK legislation is in place before a treaty is ratified or acceded to.
The House of Lords’ usual powers with regard to passing legislation would apply to any primary or secondary legislation brought forward to implement provisions of a future relationship agreement. This would include the power to amend an implementing bill. However, amending a bill would not amend the future relationship agreement itself. The House of Commons Library explains this relationship between domestic and international law:
Parliament can amend any government bill relating to a treaty, and as long as it does not hinder the Government from fulfilling its obligations under the treaty this will not block ratification. For example, Parliament might insist that the Government report to Parliament on the implementation of the treaty, even if there is no such requirement in the treaty itself. This of course does not amend the treaty itself.
Jacob Rees-Mogg, Leader of the House of Commons, was asked on 15 December 2020 whether, if a deal was agreed on 31 December 2020, Parliament could consider it retrospectively. He said:
Normally you would expect a treaty to be ratified before it comes in to force, but if both sides accept that ratification is done in a different way, that is theoretically possible, but you get into the issue of the domestic legal effects of an international treaty. The UK, as you know, is a dualist system, so things that we agree at the international level don’t have the force of law at the domestic level unless they are enacted so if you propose that, you would have a gap in the domestic legal effect of the treaty. And what does that mean? Well, you could retrospectively correct it, you could I suppose theoretically ignore the law for a week, but that’s pretty unconstitutional territory, and if anyone took it to court, I think you’d find yourself in considerable difficulties.
He suggested that a bill to implement an agreement might require a day in the Commons, a day in the Lords and a day for royal assent but argued this could be “squeezed” if necessary. He pointed out that legislation dealing with the abdication of King Edward VIII passed through both Houses and received royal assent in 24 hours.
What about a ‘meaningful vote’?
There is no legal requirement for Parliament, or the House of Commons, to have a ‘meaningful vote’ on a future relationship agreement, in other words a vote to approve or reject a deal outright. No such vote is required under the terms of CRAG.
There was originally a statutory requirement to hold a what became known as a ‘meaningful vote’ on the ‘divorce’ agreement agreed between the UK and the EU. This was because of special provisions in the European Union (Withdrawal) Act 2018. Section 13 specified that a deal could not be ratified unless both the withdrawal agreement and a framework for the future relationship were approved by the House of Commons, and a take-note debate had been tabled in the House of Lords. However, in the event, the Government was able to ratify the withdrawal agreement without ever winning a ‘meaningful vote’ in the Commons. This was because the European Union (Withdrawal Agreement) Act 2020 (the legislation passed in January 2020 to implement the withdrawal agreement in domestic law) repealed section 13 of the 2018 act.
At one stage, Boris Johnson’s Government proposed there would be a formal requirement for a more active role for Parliament in approving a future relationship deal with the EU, separate from passing any legislation required to implement it. The original version of the European Union (Withdrawal Agreement) Bill that was introduced in October 2019 would have disapplied the provisions of CRAG from a negotiated future relationship treaty with the EU. It would instead have required that such a treaty could be ratified only if:
- the House of Commons approved the treaty on a motion moved by a minister of the crown; and
- the House of Lords had not resolved within 14 sitting days that the treaty should not be ratified. However, if the Lords did resolve that the treaty should not be ratified, ratification could still go ahead if the minister laid a statement before both Houses indicating that they were of the opinion the treaty should nevertheless be ratified and explaining why.
However, this bill fell when Parliament was dissolved for the December 2019 general election. When the Government introduced a new version of the bill after the election, it no longer contained this provision. An attempt in the Commons to reinstate a similar requirement was defeated. This is covered in more detail on pages 34 to 35 of the Lords Library briefing on the bill.
Fast-tracking a bill
Standing order 46 (SO 46) of the House of Lords stipulates that no two stages of a bill may be taken on the same day. In order for a bill to be fast-tracked (or ‘expedited’) in the House of Lords, SO 46 must be suspended or dispensed with.
Under SO 46, no two stages of a bill may be taken on one day, except if a bill is not amended in Committee of the whole House, in which case the report stage may be taken immediately thereafter. So, if it is intended to take more than one stage of a bill on one day, other than the report stage of a bill which has not been amended in Committee of the whole House, SO 46 must be suspended or dispensed with; SO 84 requires that notice of this must be given.
The Companion also states that certain minimum intervals between the stages of public bills should be observed:
- two weekends between the first reading (whether of a new bill or one brought from the Commons) and the debate on second reading;
- fourteen days between second reading and the start of the committee stage;
- on all bills of considerable length and complexity, fourteen days between the end of the committee stage and the start of the report stage;
- three sitting days between the end of the report stage and third reading.
Notice of departure from these intervals is given by use of a § symbol against the bill in House of Lords Business. This notice is not required when SO 46 has been suspended or dispensed with.
On 7 July 2009, the House of Lords Constitution Committee published a report examining fast-tracking legislation. The Government responded to the report on 7 December 2009. It also said in a written statement that it would provide an explanation of why legislation needed to be fast-tracked:
The report recommended that where the Government were proposing expedited legislation they should provide an explanation of why the legislation should be fast-tracked. The Government accept in principle the committee’s recommendation that, for all bills which are to be passed with unusual expedition, an explanation of the reasons for using a fast-track procedure should be provided.
The Companion to the Standing Orders states that the explanatory notes to any fast-tracked legislation “will contain a full explanation of the reasons for using a fast-track procedure”.
SO 46 has been suspended to pass other legislation related to the UK’s withdrawal from the EU. For example, on 16 December 2020, the House agreed to suspend SO 46 in regard to the passage of the Trade (Disclosure of Information) Act 2020.
Recall of the House of Lords
The House would need to be recalled from recess if it were to consider a bill implementing a deal between the UK and the EU before 31 December 2020. The Lord Speaker may, after consultation with the Government, recall the House when it stands adjourned, if he is satisfied that the public interest requires it. This is set out in standing order 17. The Senior Deputy Speaker has the power to recall the House in the Lord Speaker’s absence.
The last occasion on which the House of Lords was recalled was 20 June 2016, following the murder of Jo Cox MP. Parliament was in recess at the time in the run-up to the EU referendum that was held on 23 June 2020.
The last occasion on which the House of Lords was recalled to pass legislation was 3 September 1998. All Lords stages of the Criminal Justice (Terrorism and Conspiracy) Bill took place in one day, and the bill received royal assent the same day. It had passed through all its Commons stages the previous day. The Government introduced the bill following a car bomb attack in Omagh on 15 August 1998 that killed 28 people. Tony Blair, who was then Prime Minister, said the bill was intended to “strengthen our anti-terrorist laws to help bring to justice those who are still dedicated to violence”.
Cover image by Pete Linforth on Pixabay.