OK, it can be avoided no more. Understanding and explaining the complexity of Brexit negotiations right now is one of the most complicated conundrums I have faced.
But this issue really matters. Business, possibly even lives, depend on getting this stuff right.
If negotiations had gone to plan, it would have worked thus:
1️⃣ 🇬🇧 & 🇪🇺 agree a Deal, politically
2️⃣ That is then turned into a legally ratifiable text
3️⃣ Both sides then ratify – on 🇪🇺 side Member States and the European Parliament, 🇬🇧 side the Commons and Lords
4️⃣ Deal enters into force 1.1.2021
The problem: we do not have 1️⃣ yet. And with just over 16 days to go – including 🌲 – we do not have time for 2️⃣ and 3️⃣ and hence there can be no 4️⃣.
We *might* have time for 2️⃣ – and that could prove to be significant (see below), but definitely not 3️⃣ on 🇪🇺 side.
Essentially, by having spent so long talking (I think 🇬🇧 tactic has been to run down the clock – see this blog post) the path to a normal ratification is now closed. Now ratification becomes harder – legally, politically, practically – with every passing hour.
And the most obvious stumbling block is…
… the European Parliament!
Parliamentary sovereignty, eh? A topic for another time.
Anyway, the European Parliament has said it will not vote on a Brexit Deal this year.
Pretty clear again speaking to Mep's they won't countenance debating or ratifying any EU-UK trade agreement before December 31st #Brexit— Shona Murray (@ShonaMurray_) December 15, 2020
Mep's are pretty annoyed at the very suggestion that it would be provisionally applied and the ratification would be a simple rubber stamp.
So even if 1️⃣ happens (🇬🇧&🇪🇺 agree politically in the next few days), you cannot achieve 3️⃣ that both sides ratify.
But what about 2️⃣ – that there even is a text to ratify?
Here is where it gets interesting.
If there *is* a legal text available to ratify, 🇪🇺 Member States can approve by written procedure (i.e. swift), & 🇬🇧 Lords and Commons can pass primary legislation in a day if they need to.
But the European Parliament says it won’t be bounced into doing that. It takes scrutiny seriously.
So what’s the solution?
Provisional Application of the Treaty is an option – i.e. meaning that the approval of the European Parliament would come after 1 January. The Council (i.e. the Member States) can decide whether to take that route.
But of course the European Parliament refuses that – as it would just have to rubber stamp a Deal under duress and after the fact.
The European Parliament might, after some howling, do it, but its MEPs are not happy.
Also were European Parliament to decide after the fact… what about other players?
This aspect has been a bit murky – it looks like Member States have OKed the idea a Deal would be an EU-only agreement, not a Mixed Agreement needing 27+ national ratifications.
But if the European Parliament can decide after the fact, and time is then not so important, why shouldn’t everyone *else* have their say then too?
Basically: Provisional Application is a headache.
And there is another 🤕
Provisional Application only works if you have a text ready to ratify. And currently we do not… and we know that the Deal will be 600+ pages long.
I presume the non-controversial bits of the text have been translated already, but from agreement to ratifiable text… needs some time.
If there is no agreement by end of this week, perhaps start of next week at the *very latest*, forget this route as well.
Then we get to some even more 🤯 options.
Steve Peers has mused whether Retroactive Application could work – essentially a Deal after 1 Jan, but the costs incurred (e.g. tariffs) in the interim reimbursed.
Retroactive application is a different issue though.— Steve Peers (@StevePeers) December 14, 2020
This one would be a practical nightmare – especially if it were not known how long that period would last. And businesses would have to make all their tariff calculations *anyway*.
And you could combine Retroactive Application with Provisional Application to shorten the interim period.
Or, perhaps more importantly, do you think Boris Johnson understands this?
Also Retroactive Application essentially means a period of No Deal, although if it were known that a Deal were forthcoming that might limit the likely panic.
… trade nerds to the rescue!
Another way to bridge the period of No Deal could be to use GATT Article XXIV 5(c) – to not apply tariffs in this interim period.
I hate to be that guy, but what if, following signature, tariff-free trade continued on January 1st prior to ratification as an interim measure justified on the basis of … GATT Article XXIV 5(c).— Sam Lowe (@SamuelMarcLowe) December 14, 2020
And you would probably not need an agreed legal text for that – both sides agreeing they would be OK with this would probably be OK.
Right – deal done; just not gone through internal EU-pre council sign off process— Sam Lowe (@SamuelMarcLowe) December 14, 2020
But both sides would still have to want to do it…
Using GATT Article XXIV 5(c) could also be complemented by the Contingency Measures proposed by the European Commission (these need to be approved by the European Parliament as well – vote 18 Dec)
Another solution would be a sort of Standstill Arrangement – i.e. a couple of paragraphs Treaty (that, yes, would have to be provisionally applied – FTW!) that would essentially buy all the institutions some more time.
Detail scarce on this so far
So a new treaty between the EU-UK allowing for some sort of extension of current arrangements will be drawn up until the deal is ratified by the parliament.— Shona Murray (@ShonaMurray_) December 15, 2020
So what do we conclude here?
FIRST, time still matters – getting an agreement ASAP would keep the Provisional Application route open. Waiting until 🌲 to agree closes that route.
SECOND, any of these options is fraught with complexity and difficulty, and some combination of the 5 of them (Provisional Application, Retroactive Application, GATT Article XXIV 5(c), Contingency Measures and Standstill Arrangement) could be needed.
There might, just might, be a way through all of this yet…
… and all of this is because the man in 10 Downing Street is too scared to take a decision.