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 European Commission’s request to approve an extension of Provisional Application until 30 April is approved by the UK.

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.

[Update 10.2.2021, 1155]
At more or less the same moment as I hit “Save” on this post, the European Commission released the proposal that Provisional Application be extended until April 30. The relevant paragraph has been amended above to cover this development.

9 Comments

  1. Arthur

    What the government want is not the same as what the people want. Many UK people DO want a NoDeal BrExit because it is the only way to properly sever the ties and deliver proper freedom. We don’t blame the EU for everything, that is a poor generalisation. We just want our sovereignty properly re-establishing and protected. Unfortunately sovereignty is not something the EU likes nor respects imo and sadly that is why we did not get BrExit delivered by Boris and instead got BRINO or “perpetual BrExit”. i.e. instead of properly resolving the main issues we just kicked the can down the road for successive government to deal with. We now exist with the EU constantly pointing a gun to our heads saying “you are now a free country, but if you exercise that freedom you will get tariffs”. We have the freedom to go out and strike our own trade deals with other countries but if we exercise that freedom and those deals are better than our trading agreement with the EU then, BAM, down comes the EU hammer.

    NoDeal BrExit was the only way to sort all this nonsense out. We should have walked away completely, finally, definitively, and then and only then invited the EU to a post BrExit negotiating table.

    • Claudio VdA

      I have a question for you.
      UK has a trade deal with EU; if UK does not respect this trade deal, it got sanctions and this is something you cannot tolerate, because it is a violation of UK sovereignity.
      Maybe tomorrow UK will have a trade agreement with India or Japan or Costa Rica or Whateverelse. If UK will not respect this trade deal, it will got sanctions and these sanctions will of course violate UK sovereignty.
      I guess the only way to have full sovereignty is avoiding any kind of deal and being locked inside your country. No trade, no travel, no exchange… but full sovereignty. Isn’t like that?

      • Jams O'Donnell

        Unfortunately, Brexiters don’t do logic (or experts, or even common sense).

  2. Stefan

    Although I work for the german government (partly on international and european issues) and should therefore have reasonably good grasp on Brexit, this blog is the source of about 75 % of all my Brexit-knowledge. Without it, I would be so lost.

    Thanks, Jon! Keep up the good work! 🙂

  3. Claudio VdA

    I hardly believe that UK government wants actually a No-Deal-Brexit. On the other hand, I can perfectly understand that they desperately need to blame EU in order to distract the people from the crude reality: with or without a deal, Brexit ist in any case something able to generate serious issue to UK.
    “It is raining? Dammned Eurobureaucracy: even if we took back control, they are sending us rain because they hate us”

    • Indeed, I agree – I do not think they want it, and hence I do not think No Deal is likely. But it is not *impossible* currently.

    • Arthur

      What the government want is not the same as what the people want. Many UK people DO want a NoDeal BrExit because it is the only way to properly sever the ties and deliver proper freedom. We don’t blame the EU for everything, that is a poor generalisation. We just want our sovereignty properly re-establishing and protected. Unfortunately sovereignty is not something the EU likes nor respects and sadly that is why we did not get BrExit delivered by Boris and instead got BRINO or “perpetual BrExit”. i.e. instead of properly resolving the main issues we just kicked the can down the road for successive government to deal with. We now exist with the EU constantly pointing a gun to our heads saying “you are now a free country, but if you exercise that freedom you will get tariffs”. In practical terms we have seen already how willing and eager the awful EU is to make threats and trigger the rules that mean our free trade agreement terms are removed and tariffs will follow. It is for the UK people, patently ridiculous. We have the freedom to go out and strike our own trade deals with other countries but if we exercise that freedom and those deals are better than our trading agreement with the EU then, BAM, down comes the EU hammer.

      It’s like being in a WW2 POW camp and the Germans removing the fence around the compound and saying “all prisoners are now free, however, anyone who crosses the line where the fence was, will be shot !”

      NoDeal BrExit was the only way to sort all this BS. We should have walked away completely, finally, definitively, and then and only then invited the EU to a post BrExit negotiating table. But of course Boris and co like all those before them are merely doing the bidding of the EU. It’s nothing more than a grand pantomime to create the illusion of democracy.

      • Jams O'Donnell

        Lunacy! “you are now a free country, but if you exercise that freedom you will get tariffs” – that is life outside the EU.If you leave membership of a ‘market’ then you cease to have the advantages of membership. Remember “We will trade ok under WTO rules”? Them’s the rules.

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