UK PM is taking his proposal to EU but has not proposed to his own parliament - can he legally bypass the UK parliament?

Question

According to latest Brexit news, UK is offering a 'compromise' to EU. An article on Bloomberg quotes the British PM as saying

“I hope very much that our friends understand that and compromise in their turn,” Johnson told his audience in Manchester, northern England, on Wednesday.

But so far one of the greatest roadblocks to an agreement has been the internal disagreements in UK parliament about what kind of agreement is acceptable.

So from that perspective it looks like the PM should probably present this latest compromise to his own parliament first and get an agreement from them.

But it seems that the approach now is for the UK government to bypass the parliament and negotiate only with the EU in a take-it-or-leave-it fashion. This article quoted a senior British government official as saying:

The EU is obliged by EU law only to negotiate with member state governments, they cannot negotiate with parliament, and this government will not negotiate delay.

Question:

Can the UK PM legally bypass the parliament when making a decision with EU based on the reason that "EU is obliged to negotiate directly with the UK government"?

Answer 1

He can negotiate and sign agreements without involving parliament yes, but Parliament will need to ratify the agreement once signed for it to come into force. So far he's negotiating with the EU just as Theresa May did. Once his negotiations were complete and an agreement was signed, it would then need to be brought to Parliament. In May's case she managed to negotiate and signed an agreement with the EU, but in her case Parliament refused to ratify it.

Whether it's wise for him to present negotiating points when he has no idea whether or not Parliament will ratify them is another matter, but he can certainly legally do it.

Answer 2

Specifically in the case of the Brexit process things are a bit different, Section 13 of the EU withdrawal act requires a meaningful vote

1. The documents and an associated statement have been published.
   
2. “The negotiated Withdrawal Agreement and the framework for the future relationship have been approved by a resolution of the House of Commons on a motion moved by a minister of the Crown”.
   
3. A subsequent debate has taken place in the House of Lords.
   
4. Parliament has passed legislation to implement the Withdrawal Agreement.

This means the UK parliament must approve, not simply vote to block, the Withdrawal Agreement. But they must have something to vote on. This is not the PM bypassing Parliament, he must bring a deal approved by the EU Council to Parliament for a vote before it can be enacted

More generally in the UK the Government makes treaties.

Ratifying Treaties

The UK Government is responsible for negotiating, signing and ratifying the 30 or so international treaties involving the UK each year.

The starting point for treaty ratification in the UK is that the Government has the power to make international treaties under its prerogative powers. But this cannot automatically change domestic law or rights, and – as the Supreme Court recently ruled in the Miller case – it cannot make major changes to the UK’s constitutional arrangements without Parliamentary authority.

With regards to the Article 50 process, as mentioned in the quote, this is complicated by the fact it cannot arbitrarily change domestic laws or constitutional law. What this means in general is unclear (to me) as usually a governing party has a majority such that changing domestic law is trivial after concluding a treaty agreement and few treaties include changes to constitutional arrangements.

Further to this, whilst parliament cannot ratify a treaty itself it can prevent ratification under the 2010 Constitutional Reform and Government Act by voting against ratification within 21 days of the treaty being put before it.

If within those 21 sitting days either House resolves that the treaty should not be ratified, by agreeing a motion on the floor of the House, the Government must lay before Parliament a statement setting out its reasons for nevertheless wanting to ratify.

This is a rotating clock, giving the house 21 sitting days to so resolve, then following a Government statement another 21 days to reiterate its opposition continuing on indefinitely.

Answer 3

Not only is Johnson’s procedure legal, it is in no way ‘bypassing parliament’ and it is the proper way to negotiate international agreements. The same procedure will be followed with every single trade, cooperation or foreign policy deal in the years to come. It is also the way how significant international agreements are negotiated (think of the Kyoto Protocol or the Paris Agreement—whatever your position may be on the negotiated results!). Rather than delegations of individual parliaments (legislative) gathering, the executive leaders or their respective countries negotiate. It’s conceivable that a parliament would require its country’s government to not step down on certain points but as far as I’m aware that’s quite the opposite of the general rule.

After such a deal has been negotiated, common procedure requires it to be presented to the relevant parliaments which then get to vote on whether they accept the agreement. If parliament agrees, this is generally termed a vote of ratification (although note that technically the vote is one permitting the executive to ratify).

It is entirely possible for an agreement to be negotiated by never ratified by parliament. That is, in essence, what happened to May’s Brexit deal. For a less recent example, see the Kyoto Protocol, which was signed by the United States (i.e. then President Clinton participated in the negotiations and put his signature under the deal) but never ratified (the Senate never voted to agree to the agreement and consider it binding). Thus, the Kyoto Protocol never entered into force with respect to the US.

Answer 4

In parliamentary regimes such as the UK, the government is really the representative of Parliament. So they negotiate on behalf of Parliament (because you can't send 650 people to the negotiating table), and ratification should then be a piece of cake if the government is in sync with their own majority: they usually consult the members of their majority during the negotiations to ensure all – or at least enough – MPs agree with what is on the table.

Issues arise when there's a split in the majority (more often in a coalition, but sometimes even inside the majority party), and the government has negotiated something that not all members of the majority (or at least not enough) can agree on.

Sometimes the government will know this in advance, and just not move forward with the agreement, because they know they can't get it ratified. Lots of negotiations just end up with nothing in the end, or with a very limited scope compared to what the government(s) would have liked.

Here, the UK really needs an agreement, so Theresa May moved forward even though she probably knew it would be a hard sell in Parliament (there's a reason why she didn't want Parliament to have their say initially), hoping to find a compromise acceptable to all (which apparently it wasn't).

It's unclear what Boris Johnson's real goal is, but if he really wants a deal, yes, he needs to negotiate the agreement with the rest of the EU first, and then bring it to Parliament for ratification. But before that, he consulted with members of his coalition (including the DUP) to see what would be acceptable to them (and he will probably continue to do so while discussing with the other EU member states).

Whether he's sure he will get a majority for his proposed scheme (if ever that is accepted by the EU, which is unlikely) is another matter.

In the case of the US (which is a presidential regime), things are more complicated. The executive is elected separately from Congress, so they can (and often have) different political affiliations.