Jeremy Miles AM, Counsel General and Brexit Minister

First published:
11 March 2019
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I am today publishing potential draft clauses for the UK Government’s anticipated Withdrawal Agreement Bill if the UK Government were to reopen the Political Declaration to seek a way forward on the UK’s withdrawal from the EU. These are at Annex 1.

The National Assembly has made clear – most recently on 5 March – that it believes ‘no deal’ is an unacceptable outcome to the current Brexit negotiations and that it also rejects the deal which the Prime Minister has put before Parliament.

The Welsh Government has consistently stated that it believes a deal which would be in line with the position set out jointly by the Welsh Government and Plaid Cymru in Securing Wales’ Future could be achieved by changes to the Political Declaration, leaving the text of the Withdrawal Agreement itself untouched. We also believe such an approach could command a majority in the House of Commons in a free vote.

We have also been unequivocal that if Parliament is unable to agree this way forward, the question should be returned to give the people a final say, through a referendum. That remains our position.

A principal difficulty with proceeding by way of amendment to the Political Declaration is

that whereas the Withdrawal Agreement will be enforceable in international law, the UK Government could depart from or renege on important matters agreed in principle through the Political Declaration after the deal had been endorsed by Parliament and the Withdrawal Agreement ratified.

The purpose of our draft clauses is to illustrate how changes to the Political Declaration to reflect our policy objectives – above all, continued participation in a customs union with the EU and the single market – could be anchored in the primary legislation which will be necessary to enact the Withdrawal Agreement in UK law. By rooting in primary legislation the broad negotiating objectives, an obligation on the Government to bring forward a more detailed set of objectives and a requirement for regular reporting to Parliament of progress against those objectives, it would be difficult for the current or any future Government to move away from the intention of Parliament in approving such a deal.

The draft clauses also provide for the National Assembly for Wales (and potentially the other devolved legislatures) to shape the negotiations and for scrutiny by both the National Assembly and by Parliament of the final agreement(s) reached with the EU. Finally, they provide for a process of Parliamentary decision making if it becomes clear that negotiations with the EU have reached an impasse. A point eight months before the end of the expected transition period is set, given the likely requirement for any deal to be ratified by Parliaments across the EU27.

Recognising the clear view of Parliament regarding its role in shaping the relationship between the UK and the EU as reflected by section 13 of the EU (Withdrawal) Act 2018, these clauses draw upon the requirements contained in that provision.

In these draft clauses, we make no provision for Scotland or Northern Ireland, because we feel it is inappropriate to speak on the behalf of their devolved institutions. We would of course support the inclusion within such clauses of parallel provisions in respect of Scottish Ministers and the Scottish Parliament and of any re-established Northern Irish Executive and Assembly.

The clauses we have drafted reflect the priorities of the Welsh Government for a negotiated outcome: but they are intended to illustrate more generally an approach which might be used to embed a renegotiated Political Declaration. We would hope they would help to inform the consideration of the House of Commons on the progress of, and next steps in, the negotiations on 12 (and potentially also 13 and 14) March.

I have written with a copy of this Statement and the draft clauses to the Chancellor of the Duchy of Lancaster as Chair of the Joint Ministerial Committee (European Negotiations) and to the Secretary of State for Exiting the EU copied to other members of that Committee and to leaders of the parties represented in Parliament.