Ratification delay, and avoiding a No Deal Brexit – we’re not yet out of the woods

One of the consequences of leaving it so late – 24 December 2020 – to agree The EU-UK Trade and Cooperation Agreement (TCA) was that ratification could not be completed before the Agreement entered into force on 1 January 2021. The European Parliament stated it would not have the time to scrutinise the text adequately, and hence Provisional Application would be needed – essentially everyone behaves as the Deal is in force, but formal ratification happens afterwards.

This is explained on Page 429 (although weirdly it’s Page 416 of the PDF) of the TCA – emphasis is mine:

Article FINPROV.11: Entry into force and provisional application

1. This Agreement shall enter into force on the first day of the month following that in which both Parties have notified each other that they have completed their respective internal requirements and procedures for establishing their consent to be bound.

2. The Parties agree to provisionally apply this Agreement from 1 January 2021 provided that prior to that date they have notified each other that their respective internal requirements and procedures necessary for provisional application have been completed. Provisional application shall cease on one of the following dates, whichever is the earliest:
(a) 28 February 2021 or another date as decided by the Partnership Council; or
(b) the day referred to in paragraph 1.

28 February is 18 days away, and ratification is not complete, and the date might hence need to be extended. How would the Partnership Council do that? Page 437 (Page 425 of the PDF) – again emphasis is mine:

Rule 9

Decisions and Recommendations

1. In the period between meetings, the Partnership Council may adopt decisions or recommendations by written procedure. The text of a draft decision or recommendation shall be presented in writing by a co-chair to the other co-chair in the working language of the Partnership Council. The other Party shall have one month, or any longer period of time specified by the proposing Party, to express its agreement to the draft decision or recommendation. If the other Party does not express its agreement, the proposed decision or recommendation shall be discussed and may be adopted at the next meeting of the Partnership Council. The draft decisions or recommendations shall be deemed to be adopted once the other Party expresses its agreement and shall be recorded in the minutes of the next meeting of the Partnership Council pursuant to Rule 8.

So there are two options.

Either the European Parliament completes ratification by the end of February. Or the EU side requests a lengthening of the period of Provisional Application, and tables this request to the Partnership Council, possibly in writing rather than convening a meeting. This is something that, at the time of writing (10 February), the EU side has not done. There is some sort of delay in the Commission proposing to the Council to begin ratification (see Steve Peers here), although reading between lines of this from Bernd Lange MEP we might know more about the precise timetable EU side later this week.

What is clear is that the European Parliament has pretty much no intention of wrapping up all of this by the end of February – indeed there is not even a plenary scheduled between tomorrow (11 February) and the end of the month (calendar here). So why is the European Parliament rather unperturbed about all of this? Because it has been accepted, EU side, that an extension is going to be needed for some weeks now. Brussels journalists Dave Keating and Tony Connelly were tweeting about this on 18 January, more than 3 weeks ago, and the FT covered it on 22 January.

But then David Frost speaking at yesterday’s Lords EU Committee (9 February) stated he had “just heard” about the idea that the EU was likely to request an extension, and that this is something that Michael Gove had told the equivalent Commons committee the day before that he was not expecting. This is clearly bullshit – even if Frost and Gove do not read Twitter or the FT, they have a team of officials that do. Frost and Gove are deliberately lying about this. The question is why they are.

Anton Spisak examines another aspect of it – that the UK is dragging its feet getting around to appointing someone to the Partnership Council. Spisak sees two possible reasons for the delay – that Ministerial responsibility in Whitehall has not been settled, or Gove is seeking to maximise his political leverage vis à vis Šefčovič.

I would add a third possible reason, and a more Cummings-esque one – that the UK wants to try to scare the EU that they are still toying with the idea of a No Deal Brexit. By delaying an appointment to the Partnership Council, they want to delay the formal start of the Partnership Council’s work, and while – as stated above – the extension request could be agreed by written procedure, you still need to know the who the responsible person UK side is, for a decision to be taken. If the deadline for provisional application is not extended, the TCA falls – you get No Deal Brexit.

Dave Keating meanwhile has a further theory – that the UK wants all of this done and dusted as swiftly as possible, so the UK can then use Article 16 of the Northern Ireland Protocol as soon as it can, safe in the knowledge that the whole TCA would not be in danger (an interplay I examine in this earlier blog post).

What then do I think is going to happen?

We will probably know more about what the EU is planning with regard to ratification later in the week – I presume the request will be for a two month extension of Provisional Application up until the end of April. There will be plenty of grumbling about this, UK side – repeating the erroneous line that the UK only knew about this now. And probably some more brinkmanship with regard to the Partnership Council. “How can it be,” Gove will gurn on the Andrew Marr show, “that the European Commission could be sooooo hasty to contemplate Article 16 for vaccines, but sooooo sluggish on this?” And then, having made a big song and dance about it, and having once more sought to portray the EU as the bad guys in all of this, the UK will grant the extension.

The line, EU side, is a pretty simple and clear one: this is a complex Agreement, and unlike the House of Commons, we need to take a little time to scrutinise it. And there is no downside to doing that. An extension is simple, and has no cost. If the UK threatens to refuse the extension, that should be the line the EU uses – No Deal would be completely the UK’s fault, as the extension makes obvious sense and has no downsides (unless of course the UK does want to trigger Article 16 as soon as possible and wants the TCA in force as soon as possible so as to do that).

I do not think the chances of No Deal are high here, but we are not out of the woods quite yet.

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