Home Flexcit Impact Assessments Monographs Contact Archive

Brexit: ratification complications

2020-11-23 08:32:56

In between putting the story of a dead f*****g dog on its front page, complete with photograph, the Mailygraph also manages to find space for a report about the latest developments (minimal) on the EU-UK talks.

There, at least we are getting a little (minimal) sense over the ratification of any treaty, and some confusion. The paper is saying that there will be little time for lawyers to draw up the final text of a deal, which is fair enough, but it then goes on to say that this is not enough time for "Parliaments of Britain and the 27 EU member states to ratify it".

While the UK Parliament could be made to sit through the Christmas break to pass the necessary legislation, the paper goes on to say, "EU member states have made it clear they would not be prepared to do so". Thus, it says. "Reports of a special sitting in Brussels between Christmas and New Year to ratify a deal have been dismissed as fanciful".

I think, in that final sentence, it's referring to the European Parliament, and that does make sense. I've consistently thought (and written) that it's unlikely that MEPs will agree to break into their Christmas hols, just to return to Brussels for a day, to approve the deal notwithstanding that there are the committee formalities to complete.

But the paper also seems to be suggesting that the EU-27 Member States will also have to ratify the deal. This, in my view, should be the case. From what we've been told of this deal that it includes an agreement on fisheries and security it is a mixed treaty, which does require Member State ratification.

This possibility was rehearsed in Tony Connelly's Saturday piece, the first time outside this blog that I've seen the issue of Member State ratification raised.

Connelly himself is a little confused on the issues, which is unsurprising. They are complex and the treaty provisions are not exactly a model of lucidity. In these cases, it is often best to consult the treaty itself in conjunction with one or other of the authoritative briefing notes, such as this one from the European Parliament.

The trouble with hacks, though, is that they rarely do their own research, and usually rely on a "person with prestige" to explain it to them which explains why they get it wrong so often.

Here, Connelly is hung up on Articles 217 & 218 TFEU, but the briefing note makes it clear that one must also refer to Articles 4 & 5 TEU, the latter stating that the Union can only act "within the limits of the competences conferred upon it by the Member States".

Where the provisions of an agreement fall outside the exclusive competence of the Union (unless subsidiarity applies), Article 4 then states that competences remain with Member States. It is from these provisions the need for Member State ratification stems.

The precise ratification status, therefore, will depend on the content of the treaty, and there is some limited wriggle room. But, on the face of it, a full-blown fisheries agreement will most certainly require Member State ratification, and if the treaty covers any matters of substance on security, then again MS ratification will be needed.

There are other complications, which we need not go into at this stage, but it is a fair guess that for this agreement, in addition to Union ratification, the Member States will also have to be involved.

The process for Member States runs to two stages. Firstly, the treaty must be signed individually by the Member States, but the signatures are subject to ratification. Thus, a signature subject to ratification does not establish the party's consent to be bound. Such an agreement cannot enter into force unless it passes through a domestic ratification procedure.

There is once exception here, in that there can be a provisional application, if provided for in the agreement and agreed upon signature. In that case, the treaty can take effect and will remain in force unless one or other of the Member States refuse to ratify.

Here, of course, ratification procedures are not uniform. They are determined separately and individually in accordance with each of the Member States' constitutional requirements. Mostly, this will require parliamentary ratification and, in the case of Belgium, regional parliaments must also be included. Remarkably, for this country, when all levels are taken into account, the agreement needs to be approved by eight parliaments.

In most of the Member States, there is also the possibility of referendums to consider. Only in Germany and Belgium are they explicitly ruled out by their constitutions. In the majority of states, they are not ruled out and, in two France and Holland they are explicitly allowed.

If there is any doubt as to whether the UK-EU treaty will require Member State ratification, the ultimate arbiter will be the ECJ. In the event of an immediate disagreement, the process could be put on hold until the court has ruled. This, however, would not interrupt provisional application, if agreed.

Overall, the net effect of MS ratification is to give states much more power, affording each a veto over the treaty. And it is not entirely untoward that one or other of the states could say "no". This was predicted very early on by Ivan Rogers.

And then, if Macron or for that matter Rutte wanted a political escape route with an unpopular treaty (with, say, the fishermen kicking off), the buck could be passed by holding a referendum. That holds out the prospect of the UK's deal being brought down by French citizens voting in solidarity with their fishermen.

Either way, the process of ratification could be significantly delayed, adding substantially to the uncertainty of an already uncertain process. Individual parliaments can take many months to go through their procedures and there is absolutely no chance of MS ratification being completed by 31 December, if it is required.

In the meantime, though, it is not even certain that there will be a treaty to ratify. Johnson is said to be preparing a "significant intervention" some time this week, talking to von der Leyen in what could be a final act of theatre once the negotiators have decided that there is a way through to an agreement.

Alternatively, he could be called upon to make concessions that Frost and his team are not empowered to make, putting him on the line if the treaty is opposed by his hard line Brexiteers.

Following any agreement at negotiators' level, the European Parliament takes the next step on the Union side but, as with May's Withdrawal Agreement, it probably won't bother until the Westminster Parliament has done its stuff.

In the UK, legislation will also be required to bring the treaty into force, which means that approval of the legislation will be taken as ratification of the treaty. That means the most urgent deadline is on the UK side. Provided a provisional application is agreed, the Union can take its time.

And that is just as well. With 23 working languages in the EU, the translators are going to be very busy, especially as each version must then be checked out by the Commission lawyers to ensure that there are no local deviations.

With all that, one can imagine that it will be some considerable time before the fat lady is called upon to sing, unless there is some glorious fudge in the making and the Commission finds a creative way of standing Union law on its head.

All we can do is watch and wait, in the one certain knowledge that nothing will be agreed until everything is agreed unless you know otherwise.

Also published on Turbulent Times.