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.
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