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SIX WEEKS TO GO – Brexit: next steps after a UK/EU deal is agreed politically.

"If an EU/UK agreement is soon concluded at a political level, that could be a prelude to an equally turbulent period in December"

Christopher Muttukumaru writes that, if an EU/UK partnership agreement is shortly concluded at a political level, that is likely to be a prelude to an equally turbulent period in December. During that period, the draft agreement will need to be submitted to the European Parliament for its consent (which is itself doubtful so long as the UK persists in legislating to allow UK Ministers to breach the Withdrawal Agreement and thus International Law). Moreover, the agreement will need to have a national legal effect across the EU Member States and in the UK.  That is going to be an uphill struggle in the available time.

  1. This short article pre-supposes that a political agreement between the EU and the UK on a future partnership will be concluded within the next fortnight. Both sides will claim a victory in the negotiations even though the agreement will self-evidently be damaging to both by comparison with the status quo. What will happen next?
  1. UK ratification Signature by the UK Government and ratification in the UK in line with the Constitutional Reform and Governance Act 2010 ought not to result in any insuperable obstacle in the UK Parliament. That is because the UK Government enjoys a large majority in the House of Commons, the elected lower house of the UK Parliament. Even so, in a case like the EU/UK future partnership agreement, the Government might also want to ensure that its domestic implementation regime was safely in place (or could safely be anticipated) before ratifying. But the two legal acts of ratification and implementation operate in different legal spheres and are not necessarily interdependent.
  1. To give legal effect at the national level to the substance of any agreement, there will need to be an act of the UK Parliament. On 21 November 2020, The Times reported that UK officials were preparing a Brexit Bill at breakneck speed. That is hardly a surprise. But there is a far bigger question that arises from the devolution settlements in the UK. In particular, there is going to be a significant political, constitutional and legal stand-off between the Scottish Parliament and the UK Parliament over the question of Scottish consent to a UK-wide bill on a future EU/UK relationship. But that is beyond the scope of this article.
  1. EU ratification The EU process is going to be far more complicated. By contrast with the UK, the EU (all the Member States and the European Parliament) will have to familiarise themselves with several hundred pages of draft treaty text within a fortnight. There may be no time for translation in view of the UK’s attitude so far, which is to refuse to accept any extension of the transition period.  This is not a wise way to adopt a treaty of such importance.
  1. Here is a brief summary :
  • Article 207/TFEU concerns the making of free trade agreements between third countries and the EU, acting within the framework of the common commercial policy;
  • The common commercial policy is based on the conclusion of tariff and trade agreements relating to trade in goods and services, as well as the commercial aspects of certain other matters such as intellectual property or the achievement of uniformity in measures of liberalisation.
  • It is difficult to know what the parties are aiming for. The UK seems to be seeking a free trade deal akin to the EU/Canada Comprehensive Economic Trade Agreement (CETA). This is a more complex model than the simpler deal agreed with Singapore. But the Canada deal shows that much can be achieved within the scope of Article 207.
  • Alternatively, the depth of the relationship that the parties may be seeking could (whether or not the UK is politically happy with it)  be closer to an Association Agreement under Article 217 of the TFEU. Article 217 states, so far as relevant: “The Union may conclude with one or more third countries …agreements establishing an association involving reciprocal rights and obligations, common action and special procedure”. The essence of an association agreement could imply greater depth and closer ongoing cooperation with the EU. But it might be anathema to the hard-line  Brexiteer wing of the Conservative Party.
  • Article 218/TFEU provides for the procedure for the negotiation of a free trade agreement. I will not dwell on the negotiating mandates that the Council has already given to the Commission.
  • The Council must authorise the signing of agreements on a proposal from the negotiator and, if necessary, the provisional application of the agreement in advance of entry into force (Article 218(5)). The Council must also conclude the agreement on a proposal from the negotiator.
  • The Council must act by a qualified majority vote under the procedure (Article 218 (8)). Accordingly, 72% of the 27 Member States, representing at least 65% of the total population of the Member States,  must agree. But if the agreement covers matters such as trade in services or trade in social, education, or health services, the Council must act unanimously.
  • Before adopting the decision concluding the agreement, the Council must obtain the consent of the European Parliament.
  • If the agreement is a mixed agreement because the Member States, as well as the EU, have competence in respect of the subject matter of the agreement, then the Member States will also have to ratify the agreement according to their national constitutions or other applicable laws. But this will only be necessary in respect of those parts of the agreement falling within national competence. In the past, the EU’s solution has been to give the agreement “provisional application” . That means that those parts of the agreement falling within EU competence are given effect and the rest follows once ratification in line with national constitutional procedures is complete.
  • It is not possible to say whether the agreement will be a mixed agreement. The EU-Canada CETA, the UK’s preferred model, was adopted as a mixed agreement.
  1. Role of national parliaments If ratification is needed in national parliaments of the EU, there is an obvious risk that that will not be possible before 31 December 2020. Since the UK has said that it will not seek an extension of the transition period and, in any event, is out of time to seek it under the EU/UK Withdrawal Agreement , there will have to be an imaginative alternative  solution to prevent a cliff edge exit with a resulting chasm in legal certainty. The no deal plans for both sets of parties will need to be implemented on both sides of the Channel.
  1. Role of European Parliament When the deal goes to the European Parliament for consent, the outcome cannot be predicted. Moreover, there is already a significant obstacle to consent which most commentators have failed to notice. Whatever defeats the House of Lords (the upper house of the UK Parliament) continues to inflict on the UK Internal Market Bill, the  UK Government currently asserts that it will not amend the provisions of the Internal Market Bill which will grant power to Ministers to act in breach of the UK’s obligations under the Northern Ireland Protocol . That would be a clear and flagrant contravention of International Law.
  1. On 11 September 2020, a statement was issued by the UK Coordination Group and the leaders of the political groups of the European Parliament. It said:

“ EP political group leaders and UKCG members … met today to assess the impact of the United Kingdom Internal Market Bill… [M]embers are deeply concerned that and disappointed that [the Bill] … represents a serious and unacceptable breach of international law…. The Internal Market Bill gravely damages the trust and credibility that the European Parliament has already said is an “essential element of any negotiation”….

Should the UK authorities breach – or threaten to breach- the Withdrawal Agreement , through the United Kingdom Internal Market Bill in its current form or in any other way, the European Parliament will , under no circumstances , ratify any agreement between the EU and UK”.

  1. If that were to happen in the European Parliament, the UK Government would  have some serious thinking to do. It might calculate that it could amend the Bill (or withdraw its unlawful provision) if it reaches a satisfactory deal with the EU. But brinkmanship by the UK has its limits. Its credibility as a supporter of the rule of law in International Law  is already in jeopardy.

Christopher Muttukumaru CB DL
Barrister and chair of FIDE’s International Academic Council.  He is a consultant to Eversheds-Sutherland (International) LLP. He is a Bencher of Gray’s Inn. In his earlier career, Christopher was General Counsel to the UK Department for Transport, where he was chief legal adviser to eight successive Secretaries of State, as well as a member of its Executive Board. His other UK Government roles included being Secretary to the  independent  Inquiry by Lord Scott into arms exports to Iraq and principal legal adviser to the UK Attorney-General on EC Law issues. After leaving government service , he became  a member of Monckton Chambers in London. 

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