Brexit Timeline as of November 2020

Question

Boris Johnson's October 15th deadline for negotiations was somewhat artificial, but it represented the real need to have any post-Brexit trade deal negotiated, signed, and ratified by the end of the transition period. As I understand it, a post-Brexit trade deal may or may not involve ratification by all EU27 member states, depending on the subjects it covers. A less comprehensive deal may be ratified by the EU institutions alone. October 15th was just as good as October 16th or October 17th in this regard, but now we're in November.

Some pundits say that both sides are waiting for the outcome of the US election, but I personally don't expect a final result on election day or even in the election week.

Has there been any recent analysis on the constitutional timelines for ratification in all 27 countries? At what date would a final text have to be agreed and delivered to all capitals? I presume they would call special sessions for something like Brexit, but even that takes time.

Answer 1

I will assume that you are asking for the deadline for there to be an agreement so the deal can come into force at or before the end of the withdrawal period. The last day of the withdrawal period is December 31st 2020.

The main difficulty with ratification arises when the deal is a so-called 'mixed agreement', UK in a Changing Europe describes those agreements as follows:

A mixed agreement refers to an agreement – for example, a trade agreement that also deals with regulatory or investment issues – between the EU and a third country that touches both on powers, or competences, exclusive to the EU and on those exclusive to EU member states. Such agreements must be approved by both the EU and by all member states. In some cases, the approval of member states includes the authorisation by sub-national bodies, such as in the case of Belgium.

Since you're talking about ratification in all EU27 states, it's safe to assume you're talking about a mixed agreement.

To get a sense of the time it will take to get it passed in all the required parliaments in the EU27 member states, we can look at previous trade deals. The UK's Institute for Government estimates that it would take at least a year:

How long could it take the EU to ratify a UK–EU deal?

An EU-only deal could take a couple of months. A mixed agreement is likely to take a year or more. Some recent examples include:

• Japan–EU: EU only. Signed July 2019; ratified and entered into force in December 2019.

• South Korea–EU: Mixed. Signed October 2010; provisionally applied July 2011; ratified and entered into force in December 2015.

• Ukraine–EU: Mixed. Signed June 2014; trade aspects provisionally applied January 2016; ratified and entered into force September 2017.

• Canada–EU: Mixed. Signed October 2016; provisionally applied in September 2017; full ratification not yet complete.

To answer your specific question:

Has there been any recent analysis on the constitutional timelines for ratification in all 27 countries?

No, because ratification in all those states will not be complete before the December 31st deadline anyway.

It's not even an interesting deadline, because the agreement can come into force without ratification in all those states. The interesting question would be when the deadline is for all requirements to be met for the agreement to come into force on a provisional basis.

To elaborate on that, the same page by the Institute for Government has the following Q&A:

Could a UK–EU deal come into force in the absence of full ratification?

Yes. The EU could provisionally apply the UK–EU treaty but only after the European Parliament and Council have voted on it. This would need to happen by 11pm on 31 December 2020.

Member states could, however, demand that provisional application excludes areas of shared competence. In the case of the Canada–EU Comprehensive Economic and Trade Agreement (CETA), signed in 2016, the vast majority of provisions have to date been provisionally applied in the absence of full ratification. But provisional application excluded some provisions such as those on investment protection. These will only come into force once the deal has been fully ratified by all 27 member states.

As for the deadline on the EU Parliament and EU Council voting on a deal so that it can be applied provisionally, I am not sure. As you said, if there is something to be voted on, I don't see why they wouldn't hold an extraordinary session (they've expressed such intention before in the Brexit saga) to try to get it passed before the deadline.

Answer 2

One of the fundamental rules in any negotiation is that the side in the biggest hurry will get the worst of the bargain. This is why when you ask a car dealer for a discount they go to "ask the manager" and leave you twiddling your thumbs for 5 minutes: it makes you impatient to close the deal.

In Brexit the negotiation is supposedly up against a deadline; the transition period ends on 31st December, so both sides have an equal need to get a deal signed before the deadline. However neither side will risk making concessions early because the other side will simply take advantage. In such a case negotiation becomes brinkmanship: how close to the deadline can we get? So one theory would have a deal signed between Christmas and New Year.

Boris Johnson tried to create an earlier deadline on the 15th October, but as you say there was no real commitment behind that deadline so on the 16th Boris had to choose between walking off in a huff and getting back to negotiations, and it was obvious which choice he would make. Ultimatums only work when you can prove you mean it.

However in this case even the 31st December deadline doesn't have a really concrete meaning. Yes, on 1st January the UK and EU fall back to WTO rules, but a deal could still be signed on the 1st January, or the 2nd, or even on 15th June 2022. There is no real drop-dead date for this negotiation. It is also possible for both sides to agree to extend the transition period to allow for further negotiation.

So I predict we are going to reach 2021 with no deal, negotiations ongoing, and then we wait to see who blinks first as the queues of container lorries stack up around Calais and Dover.

A further complication is that merely having a deal doesn't actually solve the practical problems for trade. The Association of Freight Software Suppliers is saying that its going to take them a while to update the software that interfaces with government IT systems, and its not even clear whether the government side is going to be ready either, as both lots of software have to implement a bunch of rules that are still being negotiated. So in a sense we have already missed the deadline: whenever a deal gets signed there will still be problems with moving freight across the channel for months afterwards.