23rd December 2020
A week tomorrow, on 31st December 2020, the Brexit transition period comes to an end.
This transition period has artificially kept in place most of the substance of membership of the European Union for the United Kingdom (other than representation on various institutions) even though as a matter of law the United Kingdom departed the European Union on 31st January 2020.
There is still no agreement in place for the future relationship.
There is still, it seems, not even an agreed draft text in final form.
And there certainly has not been ratification by the European Parliament.
(In the United Kingdom, parliament does not need to ratify an international agreement though parliament may need to legislate so as to implement what has been agreed.)
According to one well-connected and reliable commentator the current version of the agreement is two thousand pages long.
19/ And, wait for it, one official raised the possibility that the text is now 2,000 pages long, including annexes
— Tony Connelly (@tconnellyRTE) December 22, 2020
This is not a surprise, given the scope of what needs to be addressed in the agreement – the new ongoing relationship of the United Kingdom and the European Union on trade and other matters.
There are also news reports that the negotiators have missed the deadline for any agreement to be voted on by the European Parliament before the end of the year.
But even if somehow the European Parliament can reconvene before end of the year, there is not enough time for anyone other than those directly connected with the negotiation (and so will be familiar with the text) to scrutinise the agreement.
Today is a Wednesday – Christmas Eve and Christmas Day block out tomorrow and Friday, and then it’s the the weekend, and then it is the Boxing Day holiday on Monday.
That leaves only three full days to do everything.
The situation is ludicrous.
*
A legal instrument is a complex thing.
Legal texts are not linear documents – you do not start reading on page one and go through to the end, and then stop.
A legal text is more akin to a computer program – law codes and computer coding are remarkably similar things.
Each provision – indeed, each word – in a legal instrument has a purpose.
Each provision has to, in turn, cohere with all the other provisions elsewhere in the text – so Article 45, for example, needs to fit with Article 54, and so on.
In an international agreement such as this relationship treaty, each provision also has to cohere with hundreds – perhaps thousands – of other provisions in other legal instruments.
(This is especially true of an agreement entered into by the European Union, which is a creature of law.)
Each provision also has to be capable of working in practice – and so needs to be assessed from a practical as well as a legal(istic) perspective.
And – perhaps most importantly – any significant legal instrument needs to be examined and approved by political representatives.
This last requirement is particularly important when the agreement will have huge consequences for people and for businesses.
*
And there is something else.
The United Kingdom government has now twice – in a rush – signed up to something so as to ‘get Brexit done’ and then regretted it.
The first was the ‘joint declaration’ in withdrawal agreement negotiations, and the second was the withdrawal agreement itself – which the United Kingdom government sought to legislate so that it could break the law.
This means that nobody can have any real confidence that government ministers have any proper understanding of what they are signing up to.
If any agreement needs proper scrutiny, this one does.
*
Charles Dickens in A Christmas Carol makes it so that all three visitations are packed into a single evening.
But not even an imagination as vivid as that of Dickens could make it plausible that a two thousand page agreement of such immense importance could be properly examined as a matter of law and for practicality, and to receive proper political scrutiny, in the few days available before the end of the year.
Brace, brace.
*****
This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.
Each post takes time, effort, and opportunity cost.
If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.
Or become a Patreon subscriber.
You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.
Scrooge has four visitations; from the Ghosts of Christmas Past, Christmas Present, and Christmas Yet To Come. The first apparition, though, is his deceased former partner Jacob Marley.
And yes, Tony Connelly is probably the best informed and most incisive Brexit commentator.
Marley is not a visitation – if you read the text, Marley has never left.
“How it is that I appear before you in a shape that you can see, I may not tell. I have sat invisible beside you many and many a day.”
Let’s not quibble about the number of apparitions, David.
It’s more appropriate to recall the two waifs under the great green robe of Sir Christmas; the girl who was Want and the boy who was Ignorance and on whose brow the Ghost saw “that written which is Doom”.
Ninety-nine years after A Christmas Carol was published, Sir William Beveridge added Disease, Squalor, and Idleness to make the Five Giant Evils.
How are 2,000 pages of dense legalese actually going to improve this?
‘The easiest deal in human history’ according to Liam Fox.
David, is there any legal and practical way in which scrutiny can be undertaken? Tony Connelly’s @tconnellyRTE excellent thread https://twitter.com/tconnellyrte/status/1341482445808537604?s=21 sets out a sort of timetable at the European end (given the need for the agreement to be translated etc) which runs through to at least March/April.
What are the practical implications if the UK signs off on a deal but the EU has not completed its ratification process?
Marry in haste, repent at leisure.
From the beginning I think the government has an expectation that nothing is agreed until everything is agreed, and that a final and favourable agreement on the last items would only come at the last possible moment, yet so-called deadlines have been broken time and again. We are well beyond the last possible time for the agreement to be properly agreed, reviewed and ratified before the end of this year. The UK government may ram this through Parliament, with its Commons majority and new peers in the Lords, but (ironically) the EU parliament, derided as a talking shop, is not so easy to railroad. We may need a short extension of the transitional period, or informal implementation of the new agreement before it is formally ratified. And, like it’s leader, this government has already shown it considers itself to be “free of the network of obligation which binds everyone else”. Brace, indeed.
And somehow Bleak House comes to mind!
2021 The year of the mother of all unintended consequences.
Like Cassandra, you have an uncanny knack of stating the unpalatable truth. Best wishes.
Another similarity between law and programming is that one can never be sure what it does until it’s tested.
There’s been a huge movement in software to pull that testing forward before “going live” as well as emphasising observability once it has to ensure its operating as intended. It would be really interesting to investigate avenues to do this with legislation.
Absolutely. I’ve been thinking for a long time that whatever function is doing the consistency and rigour analysis is good but not great and that they should open-source it so that an army of retired geeks like me can pick holes in it for free. Look how Linux has become the most trusted platform. Why? Because it has millions of eyes on the code.
Never has what will happen diverged so much from what will happen – at least not since the referendum, the Article 50 letter and all the deadlines that were missed in this sorry saga.
Great piece. Thank you.
Great post – my heart always sinks when a completion is due to happen on a Monday (guarantees weekend working) or anywhere near Christmas (guarantees a ruined Christmas). If I have any say, or ability to control it, completions don’t happen at Christmas and don’t happen on Mondays or Fridays. 31 December is pretty close to being the most stupid date it is possible to pick for anything important that has to happen.
1) On the UK side, do we even have that many MPs left capable of serious scrutiny?
2) On the whole, does it really matter? Of course scrutiny is important, but it seems unlikely that the EU negotiators would sign off on an agreement that is incompatible with EU law, which should be more important than whether an MEP or member state would like something a little different.
And from a UK perspective, compatible with EU law shouldn’t be a hugely negative thing, even if it’s not what MPs, Brexiters or Remainers would want.
Given the consequences, an imperfect deal is better than no deal.
Johnson’s hero Winston Churchill provides us with many memorable quotes, some of which feel particularly apposite today.
The spiv of the ‘forties will be the unscrupulous dealer of the ‘twenties, for “If you destroy a free market, you create a black market”.
Equally, the ERG, et al, will never be happy with anything that is produced by way of an agreement, for “A fanatic is one who can’t change his mind and won’t change the subject”.
Personally, I’m not a Winston fan, but can relate to both quotes. Question is, when Johnson fawns over Churchillian texts, does he learn anything from them? – I’m not sure that his behaviour to date suggests that he does.
I am quite comfortable that all of the ETON and OXFORD intelligentsia are perfectly capable of completing the job in three days.
Really no issue at all.
Yes Mr Green.
Johnson neither understands nor seeks to understand nor cares about this. For him it is all slogans and headlines – immediate satisfaction and d*** the consequences.
You have probably seen Jeremy Vine’s story about Johnson but if not here is a link https://reaction.life/jeremy-vine-my-boris-story/ I suspect Johnson gets a cheap thrill out of being the last-minute, nick-of-time star of the show, which he could get away with writing for the Telegraph, but has caught him out again and again in the Brexit negotiations, and which morevoer makes him utterly unsuited to the role of Prime Minister at any time, but least of all when the country is facing the two worst crises in our lifetimes.
I do fear that we could fall out with No Deal not because he wants it, but simply through his crass incompetence allied to his lack of understanding of what it would mean. Even the bare bones of what it appears his team have negotiated so far is going to do us horrible damage.
Of course Boris wants No Deal. It’s the ERG demand that he delivers it. To walk with a clean WTO situation has always been the aim whatever the Leave campaign promised – and they will get it.
This is my view too
Until it is ratified by both sides, it can be revoked by either side, according to the VCLT. Scrutiny can happen during the period of provisional application.
They took such care with the Withdrawal Agreement, didn’t they.
Everyone who let the time run on knew this. If it is put into effect provisionally, it’s going to be that much harder to work against isn’t it.
The comments on a legal text should be compulsory reading for commentators. Having done my small part negotiating international treaties, I know how much every word is weighed, and how deliberate those intricate interconnections are.
The year is 2020. It’s time to drag the notoriously traditional legal profession kicking and screaming onto a legal equivalent of GitHub*.
Programmers have been using it for quickly and accurately scrutinising changes to code for years.
*Dragon’s Den here I come!
I’ve heard that some lawyers are using AI (artificial intelligence) to construct dense legal texts.
Is there any value in using AI to “deconstruct” them, to ensure they are internally coherent, and to make clear what has been agreed? And where there might be loopholes?
Hopefully someone will remove any ‘Easter egg’ notwithstanding clauses before signing.
Suggestions that the procedures for validating proposed legislation using IT techniques (including mine, above) are naive. IT techniques are designed to expose faults and inconsistencies and fudge, and they depend on a collective agreement that these are always bad.
But sometimes governments prefer fudge to clarity. They can use fudge in the law to avoid owning an unpopular decision. The courts eventually unpack and clarify the fudge and the government can then blame the judges for the result.
If governments have this perverse incentive then they are unlikely to allow open-source validation.
This doesn’t mean that we shouldn’t do it anyway.
Just a minor point (and the impact on your argument is neglible I suspect), but this only applies to the UK I believe:
“and then it is the Boxing Day holiday on Monday.
That leaves only three full days to do everything”
I know for certain (having grown up in Germany) that in Germany if any of the Christmas days fall on a weekend the holiday(s) are not moved to the following weekday(s), that’s why they are called “employers Christmas” (because employers benefit) while if Christmas falls during the workweek it’s called “employees Christmas” (because employees benefit).
I’m not entirely sure, but I believe the same applies to most or even all of continental Europe
It’s the same in Switzerland.