The House of Commons rises today for the Christmas break, but MPs have been told to be on standby to return in order to rush through legislation needed to implement any UK-EU trade deal in domestic law. I assume the law is already drafted or will be done by secondary legislation known as statutory instruments. At least that's the plan. I am not convinced it will be quite as easy.
Johnson's strategy was to do the same as he did with the Withdrawal Agreement, give MPs little time for scrutiny and rely on them to rush the 800 page treaty through at the last minute.
The New European has a report about Downing Street trying to calm the nerves of the more Eurosceptic MPs in the ERG, telling them to ignore the "propaganda" and "fake news" coming out of Brussels at the moment. This is a bit rich from an administration that left truth behind a long time ago led by a prime minister who has never understood the idea of honesty in any case.
The report emanates from the pages of The Daily Express, which makes up a lot of its own 'news' so it may not be accurate but it quotes a Brexiteer MP saying: "ERG representatives are going to No10 this evening and what they're telling me is that what they've been told by Downing Street is don't believe the propaganda the EU are putting out."
Adding, "The EU appear to be getting desperate. They're putting out what they want to be true rather than what's actually true."
This particular unnamed MP said he or she wouldn't back a deal "which is not in the UK's interests and would be willing to vote against the Government if necessary."
Another Tory MP also told the Express that Conservative backbenchers would not be forced into voting a trade deal through the Commons at breakneck speed due to the short time remaining until the end of the transition period. This MP is quoted saying, "We need the best legal minds to study it and we need to debate it."
So, the notion that MPs will simply vote through the legislation in short order may prove to be wrong and the deal will need to have an extension clause built into it to allow the transition to be extended for a few months while its ratified. Even if it was possible in this country, I don't expect the European Parliament will be so accommodating. They are also known to be unhappy.
The LPF clause will come under most scrutiny since it's crucial, not for the government to get it through parliament, Labour will vote for any deal I'm sure, but to keep the Tory party together. The ERG will be furious if there is the slightest concession.
It will be fascinating to see the treaty when it's finally published and to begin to analyse which side gained most. What I am certain about is that the EU will not compromise on the autonomy of Brussels to make decisions about the single market.
The "rebalancing" mechanism will be a vital tool and when I think about it, is the obvious answer to the question: How much does the UK want to diverged from EU rules? No doubt the British side will say we don't know and this isn't unreasonable, but with a rebalancing mechanism in place it ceases to be a problem because the answer is you can diverge as much as you like, BUT the EU will simply respond by restoring the level playing field conditions if the UK gains an advantage.
Britain will therefore be under permanent threat of having sanctions applied if it ever diverges to the extent it gets an advantage in matters of trade. The next stumbling block is the "cross retaliatory" measure allowing sanctions or tariffs to be applied in sectors, other than the one where we gain an advantage. The UK is resisting this at the moment but will conceded shortly no doubt.
Both sides are running down the clock. Johnson assumed he had an advantage in that with his 80 seat majority he could get any legislation passed in a matter of a few hours, a day or two at most. He calculated the EU being more cumbersome couldn't do the same. Christopher Hope at The Telegraph has swallowed this line:
NEW The House of Lords will rise tomorrow until Jan 5, the Government announces. The Commons is likely to follow suit. Maximum pressure now exerted on the European Union for a deal. #Brexit
— Christopher Hope📝 (@christopherhope) December 16, 2020
However, the EU say legally they only need the 27 leaders in the European Council to agree to approve the deal and apply it provisionally. The rising frustration in the EU parliament is being managed at the moment, but I assume there could be some arrangement to allow MEPs to debate and ratify it later with the full agreement coming into force gradually in 2021.
It shouldn't be forgotten that CETA, the Canadian trade deal, was modified after it was agreed using something called a Joint Interpretative Instrument - a sort of addendum to 'clarify' ambiguities. The one issued after CETA explains it thus:
"This interpretative instrument, provides, in the sense of Article 31 of the Vienna Convention on the Law of Treaties, a clear and unambiguous statement of what Canada and the European Union and its Member States agreed in a number of CETA provisions that have been the object of public debate and concerns and provides an agreed interpretation thereof. This includes, in particular, the impact of CETA on the ability of governments to regulate in the public interest, as well as the provisions on investment protection and dispute resolution, and on sustainable development, labour rights and environmental protection."
So, I am sure there will be a period of grace, an extension in other words to allow both sides to scrutinise and debate the treaty - a process which I think will prove more problematic for Johnson than Barnier. A JII could allow some points to be clarified later - but at the cost of more arguments.
Finally, to put all this into perspective, David Henig tweeted:
Second reminder: The EU has never really used dispute mechanisms in Free Trade Agreements (though this may be changing) preferring to use pressure derived from market size and a multitude of instruments (e.g. equivalence) to deliver results with trade partners.
— David Henig (@DavidHenigUK) December 15, 2020
In other words, it may all be academic since the EU will have a variety of ways to apply pressure on the UK without ever relying on the rebalancing mechanism.
Britain is slowly becoming a vassal state.
