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“The mother of all parliaments”? How the ratification of the Trade and Cooperation Agreement boosts the European Parliament’s Profile

Joris Larik (Leiden University)

On 28 April 2021, the European Parliament (EP) gave its consent to the conclusion of the EU-UK Trade and Cooperation Agreement (TCA) with an overwhelming majority of votes. With this hurdle taken, the TCA can now enter into force on 1 May 2020. Considering the succession of events over the past months, the EP not only made use of its legal prerogative of consent but emerged as an even more empowered institution as the only parliament that took the time to fully scrutinize this exceptional and unprecedented international agreement.

The frenzied finalisation of the TCA

The European Parliament’s consent is a markedly delayed engagement compared to the other main actors involved in the ratification process on both sides. This stands in stark contrast to the frenzied events of the final weeks of 2020. We can recall here the heightened tensions, with Prime Minister Johnson threatening to deploy the Royal Navy to protect British waters from EU fishing vessels in the event no deal, or when President Macron closed the UK’s border to France entirely for a few days, leading to the dystopian image of an airfield-turned-parking-lot completely filled up with lorries, which was officially proclaimed as a preventive measure in light of the then emerging British variant of the coronavirus, but suspected by some to give the UK a taste of what a “no deal” Brexit would look like in practice. No less dramatic, on Christmas Eve 2020, the breakthrough was announced, with Prime Minister Johnson holding a loose stack of papers into the camera and proclaiming “glad tidings of joy” and European Commission President Ursula von der Leyen quoting the words of Shakespeare at a press conference (“parting is such sweet sorrow”).

On the EU’s side, signature of the TCA was authorized by the Council Decision of 29 December 2020. Subsequently, the President of the European Council Charles Michel and the President of the European Commission Ursula von der Leyen signed the TCA on 30 December 2020 on behalf of the EU. After this, the agreement was flown to London on a Royal Air Force plane where it was signed by the British Prime Minister Boris Johnson. That same day, the British Parliament adopted the European Union (Future Relationship) Act 2020 to implement the TCA, with royal assent being given on 31 December 2020, the last day of the transition period envisaged by the Withdrawal Agreement.

The EP is not for rushing

What followed this flurry of events in a span of a mere six weeks was a lull lasting nearly four months. This was because the final piece in the ratification puzzle, the European Parliament, decided not to be rushed and instead gave itself more time for further scrutiny, and later on also in light of alleged violations by the UK of the Northern Ireland Protocol.

And so it could, for without the European Parliament’s consent, the TCA could not enter into force. Concluded on the EU’s side as an association agreement based on Article 217 TFEU, the EP’s consent is required as per Article 218 TFEU. This did not come at the cost of a temporary no-deal gap as the TCA had been provisionally applied from 1 January 2021. In the original version of the TCA, provisional application was scheduled to end on 28 February 2021. But the EP was not pressured by this, and indeed the deadline was extended to 30 April 2021 while awaiting the EP’s consent.

In a resolution accompanying the consent to the TCA, the EP lambasted the attempts to expedite ratification and its lack of involvement. In the resolution, the EP states that it: [“r]egrets the extreme last-minute nature of the Agreements, and the resulting uncertainty which is imposing high costs on citizens and economic operators and has also impacted Parliament’s prerogatives to scrutinise and apply democratic oversight of the final text of the Agreements ahead of their provisional application; highlights the exceptional nature of this process given the firm deadline for the expiry of the transition period and the UK’s refusal to extend, even in the midst of a pandemic; stresses that in no way can this process constitute a precedent for future trade agreements, where the usual format of cooperation and access to information must be guaranteed, in line with Article 218(10) TFEU, including the sharing of all negotiating texts, regular dialogue, and sufficient time for formal Parliament scrutiny and debate of agreements”.

In a subsequent statement, the European Commission vowed to do better in the future by involving the EP more closely in the implementation of the agreement, above all by informing the EP “sufficiently in advance”. This concerns, for instance, the unilateral termination of the TCA by the Union, amending the TCA in the framework of an overall review of the agreement, or the decision to terminate Part Three of the TCA on law enforcement and judicial cooperation in criminal matters in case that the UK denounced the European Convention on Human Rights.

The ratification by the individual EU Member State parliament was not required as the TCA is concluded as an “EU-only” agreement, as confirmed also by the Council Decision of 28 April 2021 on the conclusion of the TCA. In contrast to, for instance, the Comprehensive Economic and Trade Agreement (CETA) with Canada and the Association Agreement with Ukraine, the TCA is not a so called “mixed agreement” to which all the Member States become parties alongside the EU, either for legal or political reasons.

The EP: The last parliament standing?

Looking back at the finalization and ratification of the TCA, three observations stand out, all pointing to the EP emerging as the most important instance of democratic oversight in this process. Firstly, it is remarkable that the EP resisted being dragged along in the rush of late 2020 and 2021. In contrast to the UK and its “mother of all parliaments”, it did not rubberstamp the agreement which is generally considered to be one of the broadest and most detailed of the EU’s external agreements. Secondly, in contrast to the Member State parliament, the EP got a vote on it at all, seeing that, arguably also as a result of the collective rush to end “no deal”-uncertainty, the political choice had been made to conclude it as a “non-mixed” agreement. Thirdly, even while having obtained additional time for scrutiny of the TCA, the EP still lambasted the Commission and Council for insufficient involvement, prompting a commitment from the Commission to involve it more closely after ratification.

The EP may criticise Brexit as “a historic mistake”, but it has certainly managed to enhance its own profile in the process of ratifying the TCA, continuing a longer trend in establishing itself as a force to be reckoned with in EU external relations. As far as the TCA and its implementation are concerned, there may well be a new “mother of all parliaments” in town.

Joris Larik is Assistant Professor of Comparative, EU and International Law at Leiden University.

The views expressed in this blog reflect the position of the author and not necessarily that of the Brexit Institute Blog.