Brexit: end of the beginning?

Saturday 19 October 2019  

The European Commission has now produced a consolidated version of the Withdrawal Agreement, which includes the revised Protocol on Ireland/Northern Ireland, the technical adaptations to Article 184 "Negotiations on the future relationship" and Article 185 "Entry into force and application".

The 537-page text is described as a working document and, reflecting the provisional nature of the draft Protocol, bears the additional statement: "as agreed at negotiators' level and endorsed by the European Council". It is also still marked: "Subject to legal revision", further indicating that we have not yet been presented with something the parties are confident enough to call a final draft.

For me, it is a matter of wry amusement that the swamp-dwellers are working themselves up into a tizzy over today's votes – aided and abetted by their media handmaidens, who are positively wallowing in the soap opera – when (for those who want it) they have the wherewithal to force Johnson to apply for an Art 50 extension. It is so typical of MPs, the majority of whom in the 40 months since the referendum have never got to grips with the technical issues of Brexit, that they don't even understand their own legislation.

Standing aside from the media hype, it has now been possible to start the long process of getting to grips with the new text, and to begin to try and understand some of its implications. This will take some time and anyone who can claim to have a complete grasp of what it entails is either a liar or charlatan – or both.

Certainly, the heads of state and government who "endorsed" the document – only hours after it had been produced - cannot have read it, which tells you a great deal about what goes into the making of these treaties. It is no wonder that so many of them are an incomprehensible mess, especially if they are cobbled together at the last minute, for the worst of all possible reasons.

For all that, Pete has it that the old and the new are much the same, which is a not unreasonable view if you look at the overall political effect rather than the detail of the (relatively limited) amendments: this is still, in the main, Mrs May's Withdrawal Agreement.

For all the gushing adulation of Johnson, the "victor" of Brussels, had the treacherous turd devoted a fraction of his energies to supporting his own leader, instead of undermining her, then we might have been out of the EU at the end of last March, instead of still playing interminable games.

That this point stands up is easily demonstrated by an appreciation of the relative functions of the two versions of the withdrawal agreement. Barring the housekeeping issues – which remain unchanged – they share the same primary function of easing us out of the EU into a "standstill" transition period, allowing us time to negotiate our future relationship with the EU.

As to the infamous Irish Protocol, however, there is one big difference – that of permanence. In Mrs May's version, Point 4 of Article 1 states:
The objective of the Withdrawal Agreement is not to establish a permanent relationship between the Union and the United Kingdom. The provisions of this Protocol are therefore intended to apply only temporarily, taking into account the commitments of the Parties set out in Article 2(1). The provisions of this Protocol shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement.
This is then elaborated upon by Article 2, headed "Subsequent agreement", which thus declares:
1. The Union and the United Kingdom shall use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part.
2. Any subsequent agreement between the Union and the United Kingdom shall indicate the parts of this Protocol which it supersedes. Once a subsequent agreement between the Union and the United Kingdom becomes applicable after the entry into force of the Withdrawal Agreement, this Protocol shall then, from the date of application of such subsequent agreement and in accordance with the provisions of that agreement setting out the effect of that agreement on this Protocol, not apply or shall cease to apply, as the case may be, in whole or in part, notwithstanding Article 20.
These passages are missing from Johnson's draft, turning what was the "backstop" into what has been described as the "frontstop". What we've got stays with us, with the exception of customs and related provisions. These can be removed by a convoluted "consent" process, four years after the end of the transition period, albeit in a way that some argue drives a cart and horse through the Good Friday Agreement.

Why Johnson's semi-permanent protocol is somehow better than Mrs May's version, which was never intended to come into effect, isn't explained, especially in the context of Johnson's pre-agreement confidence in his "alternative arrangements", which have disappeared without trace. Mrs May's Strasbourg Agreement has fallen by the wayside.

Yet it was this agreement that committed the parties to working on the alternatives, so that "the backstop solution in the Protocol on Ireland/Northern Ireland will not need to be applied". Such arrangements now get a single sentence in the revised political declaration.

For now, though, Northern Ireland is saddled with complex dual-customs arrangements, and a "wet" border in the Irish Sea, something Johnson himself said would never be acceptable. As always, he is a man of his word (not).

As to the rest, we do have the transition period. Thus, if the swamp dwellers play ball today and Brexit is set for 31 October, existing EU law will continue to apply until at least the end of December 2020. There is, however, provision for extending the transition period for up to one or two years.

This is a one-time only extension which cannot be repeated, the application for which must be lodged before 1 July 2020. The maximum period allowable, therefore, is three years and two months, from November of this year, in which the government must negotiate its future relationship – based on the revised political declaration.

In this, the parties "agree to develop an ambitious, wide-ranging and balanced economic partnership". This is intended to be "comprehensive", encompassing a Free Trade Agreement (FTA), combining "deep regulatory and customs cooperation", as well as wider sectoral cooperation where it is in the mutual interest of both parties.

Unless we are informed to the contrary, the FTA will be based on the Canadian Comprehensive Economic and Trade Agreement (CETA). One should note, however that the process of bringing this to fruition started with a joint study released in October 2008, with formal negotiations starting on 6 May 2009. An agreement in principle was not signed until 18 October 2013 and the negotiations were concluded on 1 August 2014, with the actual treaty signed on 30 October 2016.

This means that just the negotiating phase took the best part of five years. From door-to-door, the treaty took eight years. Given that it has taken three years for the EU and UK to agree a dog's dinner of a Withdrawal Agreement, the idea that a comprehensive FTA could be produced in the three years of the maximum transition period allowed is absurd.

Nevertheless, since many now believe Johnson can walk on water, I'm sure they'll expect him to leave it to the last minute and then conclude a deal in a fortnight.

In the real world, though, the concern is that Johnson does not even intend to apply for an extension, forcing us out of the transition period at the end of December 2020 with no deal, or with only a basic no-tariff deal – a sop to the "ultras" to get them on board for today's vote.

Even the threat of this presents massive uncertainty for business – at least until July, when we will know the worst. But given that it will take a heroic effort to secure a deal even inside three years, leaving the period at just over the year would constitute a major set-back.

Whatever the swamp dwellers deliver us today, therefore, our troubles are very far from over. Soon, people will begin to appreciate the vacuity of Johnson's "let's get Brexit done" soundbite and have to confront the reality that Brexit is not an event but a process.

With that, leaving the EU is just the end of the beginning. To deal with that, one could even think that it might have been a good idea to have prepared a plan.

Richard North 19/10/2019 link

Brexit: it's a deal, Jim…

Friday 18 October 2019  

… but not as we know it. In fact, there is no deal. There are two draft documents, one a revised text on the political declaration and the other, the all-important revised text "agreed at negotiators' level" on the "Protocol on Ireland/Northern Ireland included in the Withdrawal Agreement".

It is the latter that constitutes the supposed "deal" but it has only been "agreed at negotiators' level" and – as the frontispiece states – is "subject to legal revision". This can't even be taken as the definitive document.

For this revised text to take on the formal status of a binding treaty, and thus constitute a "deal", several things must happen. Firstly, it must be ratified by the Westminster parliament, which we assume will be attempted on Saturday. It must then be formally "concluded on behalf of the Union", by the Council, acting by a qualified majority, but only "after obtaining the consent of the European Parliament" (my italics).

This is what Article 50 says. I have to admit that I had to remind myself of the text – specifically Art 50(2) – but there is no equivocation or ambiguity there. The deal has to be concluded by the Council, after the European Parliament has given its consent.

On that basis, the European Council could not "conclude" the agreement yesterday, and nor can it do so today. All it can do is what it actually has done, according to the meeting conclusions. It has "endorsed" the Agreement and invited the European Parliament and the Council "to take the necessary steps to ensure that the agreement can enter into force on 1st November 2019".

The earliest the European Parliament can meet to give its consent is some time next week and, given its own procedural requirements, that may be towards the end of the week, possibly on 24 October at the last plenary session of the month. Presumably, the Council can arrange a special meeting then formally to conclude the agreement.

It would not be wise, though, to take the European Parliament for granted. Verhofstadt has said it will "take its full time to carefully examine and approve" the deal – which is more than either the Commission or the Council has done so far. And that process, he warns, could spill past 31 October.

Verhofstadt also says that MEPs will only start work once the Westminster parliament has ratified the deal. If that slips past the plenary session next week, it could well have to be picked up in the session that begins on 13 November.

When it comes to the Council's concluding the agreement, I'd always assumed that it was the European Council that did this. But Article 50 specifically refers to the "Council", which actually means the Council of the European Union (formerly Council of Ministers). One presumes that it will be the General Affairs Committee which does the honours.

The crucial point here is that, until the Council has voted, technically there is no deal. It could be pulled at any time, and we could be back where we started. However, there is another rather important issue – the European Union (Withdrawal) (No. 2) Act 2019, better known as the Benn Act. On this, there has been much talk of it kicking in if the swamp-dwellers fail to approve the Agreement on Saturday, but there is an aspect of this Act which most people seem to be neglecting.

The particular issue is that – as expressed in popular terms - should Johnson fail to bring home a deal by 19 October, the Act imposes a duty on him to seek a three-month Art 50 extension, lasting until 31 January 2020.

Yet, while this approximation might suit the legacy media, the actual terms of the Act are subtly different, in a very important respect. The requirement is for the United Kingdom to have "concluded an agreement with the European Union under Article 50(2) of the Treaty on European Union", which is far more than has been currently achieved.

As we have seen, to conclude the Agreement requires the input of the European Parliament and the Council and, since neither have fulfilled their roles, it cannot yet be said that that the UK has concluded an agreement with the EU. Neither can that happen before Saturday.

Strictly speaking, therefore, when Johnson goes before parliament on the 19th, he will not have complied with this condition of the Benn Act. Thus, he will be legally required to make a formal application to the European Council for that three-month extension – whether parliament ratifies the deal or not.

The big question, of course, is whether any of the swamp-dwellers have read or understood the finer details of the Benn Act. On current form, that seems unlikely, in which case those who so desperately want to slow down or stop Brexit will have missed an opportunity.

Oddly enough, the SNP has already decided it will not back Johnson's deal on Saturday and has tabled an amendment to the motion approving it, calling for an immediate extension to the 31 October deadline in order to give time for a general election. Would that they knew it, they already have the means to force that extension.

Presumably, the most likely outcome of an extension would be a vote of no confidence and, given the inability of the opposition parties to front a candidate for leader of a temporary government, this would lead to a general election. Johnson would still hold the office of prime minister and be able to decide on the date of the contest.

Should that be the case, the prime minister might have very little time to play with. Sir Mark Sedwill, head of the Civil Service, is reported to have warned No 10 that going to the polls after 12 December could lead to logistical difficulties.

Predictably, when you think about it, many village halls and other locations used for polling stations will already be booked for festive events like pantomimes and parties in the weeks leading up to Christmas. To avoid clashes - with a minimum of five weeks required for an election campaign - that means an election would need to be called within the next three weeks.

Add two weeks to that, if the vote of no confidence option is triggered – the period allowed for the second vote - and that would give Johnson the very narrow window of a week. If missed, it could be February before an election could be held, with all the complications that that might entail.

In terms of the potential for electoral success, there might be significant variations in the outcome for Johnson in the different campaigning scenarios. Generally, the polls seem to suggest he might do better if he went to the country after the UK has left the EU, as against a situation where he had failed to achieve a deal and was forced to fight against a background of continued EU membership.

What hasn't been tested, though – as far as I am aware - is the scenario where he has successfully negotiated a deal, but where the three-month extension is implemented anyway, again forcing him to go to the country while we are still in the EU.

There again, one might expect a difference in public sentiment where he was forced into this position by the opposition parties and where it was brought about because the agreement had not been formally concluded – arising essentially because the negotiations had been left so late.

Either way, some might anticipate that any campaign would be fought on the content of the deal. But that would be expecting too much of the legacy media – it could not cope with anything beyond the superficial and would quickly revert to personality politics, basically on a platform of "trust". It would boil down to whether the voters trusted Johnson and his "deal", or Corbyn and his commitment to renegotiation and a referendum – in which he would oppose his own deal.

My sense is that there is a growing impatience with the continued delays, so much so that even some remainers want to see the thing finished. In this context, the deal is seen as the best and fastest way of achieving that end. And such a seductive refrain could well play into Johnson's hands, as long as the focus stays on personalities and "trust". It is a contest he could well win.

If the campaign ever got down to detail, though – however unlikely that might be - a rampant Farage might score some points, with his campaigning company seriously eroding Tory votes. The net effect of the Lib-Dems could also be to damage the Tories more than Labour, possibly leaving us with a hung parliament and no further forward.

On the other hand, a clear Johnson victory would have him ratifying his deal in an instant, taking us out of the EU as fast as is humanly possible. Then the fun would start. The one thing this deal buys is a standstill transitional period (one of Mrs May's legacies from the original Withdrawal Agreement), during which we negotiate the future relationship.

But, if the view coming through is correct – and study of the Irish Protocol over the next few days will give us a better insight – Johnson has only got so far by caving in to the EU on every substantive point. To have this man, with a five-year mandate, in charge of the next round of negotiations, almost beggars belief.

Sadly, as long as Corbyn is the leader of the opposition, the alternative is no better, which perhaps gives a serious impetus to the idea of a referendum on what will set out to be a permanent treaty. On this, the peoples' decision can hardly be worse than anything our full-time politicians would come up with.

Richard North 18/10/2019 link

Brexit: madder and madder

Thursday 17 October 2019  

It seems hardly possible that we could end up yesterday knowing even less about the state of the "deal" than we did the day before. But if Johnson's team has done nothing else, it is to have achieved this – a sense of utter, impenetrable obscurity to the extent that no-one outside the magic circle knows what's going on.

After a day of baffling to-ing and fro-ing, which had the hacks waiting outside the Berlaymont at the crack of dawn, waiting to doorstep officials as they went in for the talks, we were supposed to see the deal done by midday. As it was, we saw a series of postponements until, shortly before 7pm our time, we heard from a government source, via the BBC's Laura Kuenssberg, that there was to be no deal that day.

Some papers were slow to catch up, with the Mirror running its report almost to midnight, telling us that "the likelihood of that being wrapped up is close to zero tonight… despite early excitement that terms were close to being agreed".

Other hacks were quicker off the mark, pitching in to confirm that a deal is off the agenda for the day, but there was no consistency about the reasons for the non-event. Some suggested there were only "minor issues" left, others reported it was all to do with the DUP and the signals coming from London and yet others spoke of "unresolved issues" across the board, including customs issues and VAT.

Uncharacteristically, the normally vocal Barnier went quiet, saying nothing as he arrived at the Europa building in Brussels shortly after 6.30pm to brief the EU Ambassadors on the state of the talks, and it wasn't until the meeting was over that we got confirmation that there was to be no deal that night.

Such was the let-down that the garrulous Verhofstadt was reduced to telling reporters: "There is nothing to say because the negotiations are still continuing. I think there are possibilities for an agreement but it's not done". There are, he said, "on customs, still outstanding issues".

As Verhofstadt indicated, though, talks were to continue – potentially through the night - indicating that there is more to the delay than simply the DUP. Asked if the DUP was the problem, the senior diplomat from a major member state said, "Just the VAT" - before shrugging and adding "apparently".

Previously, there had been a possibility that Johnson might fly over to Brussels on the Wednesday, but that didn't materialise. Now there are suggestions that he could go earlier than usual today, if it was felt that his presence could help move stalled talks along.

However, for all the drama, by midday yesterday, EU officials were saying that there was not enough time for formal agreement on the deal. And, if that was the case at midday, then it certainly had to apply as the delays mounted. Thus, even if the parties are able to finalise talks this morning, it is far too late for Barnier to recommend the deal to the European Council. All there can possibly be this week is an agreement in principle.

While the Telegraph claims that Brussels is saying that an agreement is "effectively in place", the Independent reports the DUP is dismissing talk of a breakthrough as "nonsense" and has the government bracing for a "humiliating extension request letter".

Despite progress, the paper says, EU officials suggest that any deal would still have to be delayed by around two months to "resolve technical issues" and that Johnson's hopes of an agreement before the European Council "are fading as new hurdles emerge".

Negative vibes also seem to have been picked up by Robert Peston, who has belatedly realised that there cannot be a deal today. "There may be an agreement tomorrow between Brussels and London", he writes, "but no detailed text has yet been shared with the 27 EU leaders and their respective governments". So, he concludes, "it looks way too late for EU leaders to endorse a formal Brexit deal with Boris Johnson at the EU Council tomorrow and Friday".

He may be late to the party, but – I suppose – better late than never, enabling him to look at the consequences. The "best the UK PM can hope for", he says, " is a political discussion that sends out a positive message on the prospects for a deal". And this "means that MPs cannot vote on a deal this Saturday", so there can be no meaningful vote.

In turn, this means that even if Johnson does not want a Brexit delay, there is no earthly way (that Peston can think of) that he can avoid one, if he wants a Brexit deal (which he does).

Unusually for a journalist, Peston also takes into account the European Parliament, saying he can think of no way it can scrutinise and ratify the deal - if it is ever done - before 31 October. Actually, he's wrong. Provided a deal was agreed early next week, there could be time, even if it requires pushing procedures to their limit.

Nevertheless, Peston thinks that Johnson's pledge to get us out of the EU at the end of the month "looks to be for the birds", noting that his battle cry was "Brexit, do or die". Presumably, Peston ventures, "there was an unspoken third option", asking whether anyone knows what it is.

As to the fate of Johnson's "deal", it should by now be so obvious that the European Council cannot possibly approve it today that the whole media – and not just Peston – should be proclaiming that fact.

Interestingly, Anna Soubry, noting that it is increasingly clear that Johnson's "new deal" is worse than May's, then whinges that parliament will get five hours debate on Saturday (if it happens) "without any independent assessments, analysis or select committee scrutiny of the most important set of decisions we will make in generations". That, she complains, "is plain wrong".

She, like so many of the others, though, simply can't step outside her own frame of reference and realise that what applies to the swamp-dwellers in Westminster, must have equal relevance to the 27 Members States who supposedly will be asked today to approve a deal.

With talks almost running up to the start of the European Council, there is not the slightest possibility that the officials from the EU-27 Member States can give any legal text – if it even exists by then – the sort of detailed scrutiny that will allow them to make recommendations to their respective heads of state and government.

Yet, all we get from the fatuous Laura Kuenssberg is that it is "not now clear whether there would be a deal at all this week". If this is really the best the BBC can do, then it is unsurprising that people are so ill-informed.

But then, we have the Guardian telling its readers that Johnson "is expected to try to pass the deal through Parliament on Saturday", when the overwhelming likelihood is that there will be no deal to present.

Almost certainly, all that can happen on Saturday – of any substance – is for Johnson to affirm that he is to write to the European Council asking for an extension to the end of January 2020.

With this scarcely being discussed, no one seems to be entertaining a discussion about what Johnson is supposed to do if, the subsequent week, his team manages to agree a deal with the EU. Does he insist on a break clause in the extension decision, to enable the UK to depart early?

However, even the possibility of an agreement next week seems remote, and there is no incentive for opposition parties to ratify a deal if they have an extension in the bag. The preference may be to engineer a general election, which means that talks with Brussels would be discontinued until the result was known.

So much of what is happening though is unknown that we could all be building castles in the air, with surprises waiting around the corner, ready to prove the pundits wrong. Today, therefore, will be as unpredictable as ever, as we all struggle to understand what is going on in an environment that gets madder and madder by the day.

Richard North 17/10/2019 link

Brexit: a Mad Hatter's tea party

Wednesday 16 October 2019  

As I write, the situation is about as transparent as a radiographer's apron, with the media reports to date about as coherent as the Mad Hatter's tea party.

The big news yesterday was Michel Barnier setting an ultimatum for the end of the day for agreement on a legal text to be finalised. This was in order for it to be presented to EU leaders at the European Council on Thursday. But, with the midnight deadline past, there is no news of whether an agreement has been reached.

One possible explanation might be that, as a surrogate for GAC approval, the "EU Ambassadors" (Coreper) are meeting at 1pm today to take a briefing from Barnier, and the draft will not have to be ready until then. This, apparently, gives the UK team and the EU's Brexit taskforce a few extra hours to complete their tasks.

According to the Telegraph, they are prepared to work through the night to complete the draft, ready for the Barnier briefing, prior to it being passed to the European Council.

This assumes, of course, that the parties are anywhere near reaching an agreement and, through yesterday, we were getting any number of negative signals, suggesting that it was as elusive as ever, even though there was a continuous stream of reports saying that the talks were close to a conclusion.

By mid-afternoon, though, we had The Times conveying a message from "British sources" who urged caution over reports that a deal could be ready by the end of the day. They suggested that the bout of optimism was a negotiating ploy to pressure London into making more compromises.

We also had the Guardian which had a "senior French official", speaking in Paris, who advised "extreme prudence" about the chances of a deal being struck that would satisfy the EU's capitals. "It's not the Irish who will make the deal", he said. "Yes, there are better atmospherics, but what matters is the content, and we have seen nothing yet. Whatever it is, we will want to look at it in very serious detail".

That latter comment from the French official tells its own story. By all accounts, any agreement reached is going to be a long, complex piece of text, a view supported by Angela Merkel who compared the Brexit talks to "squaring the circle", saying "It's very, very complicated".

Given that, I simply don't buy into the idea that a few Coreper officials will be able to fillet the document and give it the go-ahead, without the lawyers first having trawled through it. Even then, senior politicians and officials from all the Member States will want to give the "deal" the once over, before the European Council commits to anything.

On that basis, a rainy afternoon in Brussels will hardly give sufficient an opportunity to prepare for Thursday's European Council, even if Johnson is prepared to fly to Brussels today, in an attempt to cement the deal. There will barely be time to get the deal translated into the Union's 24 working languages, much less circulated to 27 capitals for comment.

Despite its chequered reputation for fabricating rather dubious stories, therefore, The Times this time seems to have a point with today's (online) headline which declares, "Boris Johnson hit by prospect of no Brexit until 2020", with the sub-heading telling us: "EU warns deal may need two months to finalise".

What seems to be coming through is that the parties have only come to an agreement in principle, and that is what will then be conveyed to the European Council with the promise of detail to follow. The paper then quotes a "senior German official", who says a political agreement on a deal would not be enough "to resolve technical issues", thus requiring Brexit to be postponed for a third time for "some two months".

Also called in aid is a "senior EU diplomatic source", who says in Delphic terms that, "Without a deal this week, Britain will need an extension. With a deal this week, Britain will need an extension". Thus does Johnson face being pushed into a delay even if the outline of a deal is done.

As to whether the European Council will even countenance a delay, though, is said to depend on whether Johnson can prove he has sufficient support amongst the swamp-dwellers for a deal to be ratified, once it is presented. That means that, after the European Council, attention will turn to the House of Commons, with special attention paid to the proceedings on Saturday, if that session materialises.

However, after two consecutive days of talks with Johnson, resolve in the DUP is stiffening, with strong indications that the party will oppose the deal. Arlene Foster is now saying that the DUP would support only "a deal that respects the constitutional and economic place of Northern Ireland within the United Kingdom". She adds that there has to be consent which is in accordance with the Belfast agreement, in other words "there has to be consent from the nationalist community and the unionist community".

After expressions of support for the deal, some of the Eurosceptic wing of the Tory party are also having second thoughts, leading to what is being called a "major split among Tory hardliners". Owen Paterson, for instance, has branded the deal "absurd" and "unacceptable", while Iain Duncan-Smith is said to have "exploded" at No 10 officials.

It is now even being suggested that some Brexiteers might even prefer a delay, giving time to negotiate a better deal, rather than accept a fudge that will please no-one. But that assumes that any more time will necessarily open the way for a more acceptable resolution.

With no more sense to be had, one can only hope that some better news emerges through the day, allowing in a little more light, bringing with it – one hopes – some much-needed clarity. For the moment though, we are in a strange twilight world, where we may or may not have a deal, without actually knowing any of the detail and thereby lacking the wherewithal to determine whether it is even worth having.

I am not even prepared to speculate on what that detail might be, although it is interesting to note the comment of the Independent which admits that "details from the secretive talks are scarce", and then goes on to say that, "the latest sketchy reports from in the room suggest that the UK has agreed in principle to a customs border down the Irish Sea – which was originally rejected by Theresa May as something 'no British prime minister' could accept".

Mrs May's comment is a useful reminder of where we were at back in December 2017, and I looked up my own comments at the time. The big issue then was that Mrs May had more or less come to an agreement with Brussels, but had neglected to pass it by the DUP.

The story goes that the DUP intervened publicly, rejecting the Whitehall/Dublin deal. This led Mrs May to break off her meeting with Juncker to take a 'phone call from Arlene Foster, the outcome of which, it is said, was that attempts to conclude the deal with Brussels on the day were abandoned.

Now we seem to have history repeating itself except that, if anything, the deal is even more convoluted, leaving some to wonder whether, even if it is agreed, the administrative capacity exists to implement it.

Perhaps, though, it was never meant to be. The BBC is reporting that it has obtained Conservative party leaflets which suggest the party is preparing for a delay to Brexit. The text of one leaflet says: "Without a strong majority government, we can't deliver Brexit", indicating that the party is expecting the UK still to be in the EU by the time a general election is held.

One way or another, I have the sense that, over the past week or so, we have been played. All the to-ing and fro-ing of the past week or so is simply theatre to distract us from the reality that we are nowhere near a deal. In its own way, the Mad Hatter's tea party probably had more coherence.

Richard North 16/10/2019 link

Brexit: still anybody's guess

Tuesday 15 October 2019  

If you keep them in their comfort zones and let them focus on issues they understand – like court politics – the occasional hack can sometimes make a bit of sense. Thus we have Robert Peston delivering his opinion of the Queen's Speech debate, saying it was the maddest, most pointless event anyone alive has watched.

In his view, it was all "displacement activity" with the speakers taking refuge from the only two questions that matter, namely whether the UK is leaving the EU on 31 October (and if so how) and whether there will be a general election before Christmas. As a result, wrote Peston, the debate "has all the significance and weight of an undergraduate debate on a wet autumn afternoon".

It would be comforting to think that this put yesterday's proceedings in a class of their own but Peston's assessment could apply to the majority of debates conducted in the House of Commons. It comes as no surprise, therefore, that the level of public trust in the institution has plummeted, with 77 percent of a recent opinion poll unwilling to trust it to make the right decisions on Brexit.

That figure, incidentally, compares with 76 percent for Corbyn, and 60 percent for Johnson, indicating that we are undergoing an almost complete breakdown in trust in the ability of our politics to fix Brexit. Johnson may be the least worst, but even that means that twice as many people don't trust him as believe he is capable of doing the right thing.

And when it comes to guessing whether we will be leaving the EU on 31 October, at least we seem to be getting closer to an answer. Finland's Prime Minister, Antti Rinne – holder of the EU's rotating Council presidency – took time out yesterday to warn that things were not going well in Brexit land.

Speaking in Helsinki alongside Belgian prime minister Charles Michel, who is the next European Council president, he told reporters that there was no "practical or legal way" to find an agreement on Johnson's latest proposal, in time for the European Council on Thursday.

This, of course, is not in the least surprising. The parties are trying to combine thrashing out an agreement on an incomplete and poorly-thought-out UK proposal while, at the same time, attempting to carve out a detailed legal text covering the areas where there is some degree of accord.

Inevitably, this is slow, painstaking work – and that is without taking into account the need to have versions in all 24 of the Union's working languages. And, understandably, the EU is insisting that any draft which goes up to the European Council for approval must be "legally operable", requiring the production of a complete, watertight legal text.

Nor is Rinne on his own. Simon Coveney, the Irish deputy prime minister and self-confessed optimist, also suggested that talks might have to "move into next week". And although he did qualify his own pessimism (or realism) by venturing that it was "too early to say", the very fact that he was making such a downbeat appraisal tells us an awful lot about the status of the talks.

Barring a miracle, therefore, there is next to no chance of Johnson putting a new deal to MPs on Saturday, assuming he still goes ahead with the weekend sitting. Apparently, a motion approving the session must be tabled at the very latest by Wednesday for debate the following day – and even then the swamp-dwellers could reject the opportunity to spend extra time in Westminster, in favour of prolonged lie-ins in their constituency homes.

Assuming, as I think we must, that there will be no deal settled on Thursday, on the face of it thus requiring Johnson formally to apply for an Article 50 extension, it would seem that there will be nothing much to talk about on the Saturday. The one exception might be to reassure the House that talks will continue (which is by no means a given), with a view to crafting a deal later in the month.

By tomorrow, of course, Barnier may well have put the coffin into the ground when it comes to a Thursday finale. It would be entirely in order for him to declare to the General Affairs Council that there had been insufficient progress in the talks for him to commend a deal to the European Council, even with an additional day that Wednesday might bring.

However, if Barnier is prepared to take an optimistic view and suggest that there is a chance that a special Council, convened in the following week, could bring about a resolution, Johnson could still hold out hope of closing a deal in time for the UK's departure on 31 October.

The "colleagues" may or may not play ball on this, but I would be inclined to suggest the caution will prevail and they will go for the extension option, planning to use the special Council to agree an extension to the end of January 2020. On the other hand, they could string Johnson along with the promise of an early deal, only to bounce him into an extension when it becomes apparent that the talks have not delivered.

Even over the space of a week, though, the variables have multiplied to such an extent that predictions have become perilous. Nevertheless, there are definitely signs of movement, with the Telegraph in a buoyant mood, reporting that there is "cautious optimism" in Brussels. With talks on a knife-edge, we are told that Johnson has cancelled today's planned Cabinet meeting, to avoid leaks that could derail delicate talks.

All the same, I'm still reluctant to accept that the "colleagues" will go for the quick fix. Recent polling – of which they must be aware – suggests that delaying Brexit could cost Johnson a majority in the coming general election, as Farage's party siphons off Tory votes. But whether a hung parliament – with the remote possibility of Farage holding the balance of power – is something they want to risk, only they can tell.

But the main constraint, as I see it, is the prohibition in their own Decision on conducting negotiations on the Withdrawal Agreement during this extension period. Holding off until after the end of the month gets them off that hook, while a general election, which would cause talks to be suspended, might buy time and fresh opportunities – and the chance of a Labour government that could deliver a referendum.

It is at this point that the perils of speculation become all too evident. The Irish Times has it – along with the rest of the media – that Johnson is still adamant that Brexit will occur on 31 October and, even if he does seem boxed in, no one is prepared to bet that he doesn't have a trick or two up his sleeve. Thus, while we can assess the odds of certain plays coming to fruition, firm predictions are for the birds.

Not least, for all the media chatter, no one has actually seen a hard copy of the UK proposal – if one actually exists. And this could mean that all the earnest speculation over what the parties are discussing could be empty hype. Furthermore, with these complex issues, there can be absolutely no dispute that the devil is in the detail and the talks could so easily founder on a technical issue that no one can find a way of circumventing.

Then, of course, even if the parties manage to agree something, there is no guarantee that the swamp-dwellers will ratify. Opposition from the DUP seems to be firming up, and behind them are Unionist-supporting Conservative MPs who will vote alongside them.

It is enough, therefore, to posit that, by the end of today, we will be slightly more certain that we are not going to be seeing a deal this week. Beyond that the outcome is, as always, still anybody's guess.

Richard North 15/10/2019 link

Brexit: a dose of reality?

Monday 14 October 2019  

Following the completely predictable (and predicted) news yesterday evening, that a Brexit deal had not materialised, the legacy media is having to scale back its euphoria and admit to the difficulties which have long been apparent to more sanguine observers.

Readers here, for instance, might recall our piece conveying the comments of Bruno Bonnell, a French MP for Emmanuel Macron's En Marche! party. Of Johnson's proposal, he complained that, "It's not a final version", describing it as "almost like a joke", saying that, "We don't even understand it".

In the wake of the weekend's "intensive technical discussions", therefore, it should hardly come as a surprise to the Financial Times that it was dealing with a dog's dinner. Nevertheless, with its most recent headline declaring: "Brussels baffled by UK’s 'complex' proposals to fix Brexit deadlock", it seems to be trying to tell us something of which we were already well aware.

Nevertheless, I suppose it is vaguely helpful to have a more detailed account of Michel Barnier's brief to EU "diplomats", other than a terse press release which is so lacking in detail as almost to amount to mockery.

The only things of substance it tells us are that, "A lot of work remains to be done" and "Discussions at technical level will continue tomorrow" (Monday). Barnier is also to brief EU-27 Ministers at the General Affairs Council (Article 50) on Tuesday.

Via the FT and the other news gatherers that were present in Brussels, we are told that British plans to keep Northern Ireland in the UK's customs territory while avoiding a hard border on the island of Ireland are "fiendishly complex and not yet properly worked out", which entirely accords with Bonnell's earlier observation, but demonstrates that there has been precious little progress since last Tuesday.

It hardly comes as a shock, therefore, to have one EU diplomat making a statement of the bleedin' obvious, that there was "no breakthrough yet". He adds: "If the British government wants a solution, it must move quickly now. The clock is ticking", again a statement so obvious that it scarce merits repeating.

What is less clear is why another "European official" is saying that talks on Monday would be "one last chance". That is the last chance for the two sides to bridge their differences, or they risk failing to agree a deal in time for the European Council on Thursday.

By any account, it is already too late to meet that deadline. Normally, without the GAC giving its go-ahead, the European Council could not entertain a deal. However, the BBC has suggested that the EU team seems to have "softened" its position, indicating it is prepared to keep talking until Wednesday, the eve of the European Council.

Then we see The Times elaborate on this, reporting that the EU might back Johnson's plan in principle, even if a legal text cannot be finalised in time for the European Council, provided the UK made some concessions.

This narrative has the prime minister in office returning from Brussels with a political deal that could be put to a vote in the Commons on Saturday, with a legal agreement to be finalised afterwards. That does not make sense. The Commons is not going to vote for a "deal", sight unseen. MPs will want to see the small print.

When one sees the FT talking of "an extra summit", however, this does make sense. This paper suggests 29-30 October, but there is the matter of the European Parliament ratification. The last plenary of the month is on 23 October, which sets its own limit.

But, while Downing Street apparently had hoped the negotiators would be on a "glide path to an agreement", the Guardian is scaling back on the optimism having Barnier warning that the latest talks have been "difficult".

With a dose of realism that has been distinctly lacking of late, it goes slightly against the grain of some of the other reports, observing that it is appearing "increasingly unlikely that agreement can be found" in time for the Council later this week. However, this is not inconsistent with what other media sources are saying.

Ironically, the paper speaks of Barnier holding "a restricted session due to recent leaks", but somehow the leaks continue as we learn of the chief negotiator's disappointment at the lack of progress. This leads "EU sources" to suggest that an extension is "all but certain" given the amount of ground that needs to be covered.

Not least of that is the minor problem that the UK proposal would lead to the "dismantling of the EU's customs code", leaving the Union open to widespread fraud in the absence of hard data about whether goods end up in the Single Market or not. "We've told the UK our concerns about the Single Market and they don't have any answers to it yet", says a diplomat.

According to RTE, some of the ideas advanced by the UK - specifically a proposal to have Northern Ireland be part of the UK's customs territory, but continuing to apply the EU's rules and procedures on customs and tariffs - remain "conceptually difficult".

It is felt that the British plan would create more problems than solutions, in terms of the potential for fraud, the difficulty of tracing goods and the prospect that things would not be ready in time for the end of the transition period. Some EU officials believe that the arrangements are so complex that up to three months may be needed to thrash out all the details.

Interestingly, another leaking EU diplomat effectively confirms this, saying that: "The Northern Ireland-only backstop proposed in February 2018" (by Mrs May, as rejected by Arlene Foster) "could be landed by Thursday, but not a bespoke plan". On that basis, "a technical extension looks probable".

Such a move is also mentioned in The Times piece. It would definitely have the support of Jean-Claude Juncker, who says he would back a prolongation of UK membership. "It's up to the Brits to decide if they will ask for an extension", he told the Austrian newspaper Kurier on Sunday (paywall), "but if Boris Johnson were to ask for extra time – which probably he won't – I would consider it unhistoric to refuse such a request".

The Independent, though, reports that Johnson is "desperate for an agreement" which can be signed off before Saturday, to avoid him having to ask for a further extension. Yet the EU has told him that he must move "further and faster", even though other papers are saying that the gap is unbridgeable in the time, with the likelihood that there will be a later, special European Council.

Needless to say, the EU stance has been seen in negative terms by the Telegraph, the paper headlining its report: "Fury as EU demands more Brexit concessions". The text has a Cabinet minister "hitting out" at Brussels for ignoring the need to get parliamentary backing for any deal reached. This minister says: "What the EU needs to understand is all their very clever negotiating tactics don't mean anything if you can't get it through the House of Commons".

From this, it would appear that there is an expectation that the EU should abandon its own requirements – a process called "flexibility" - simply to assist the passage of any deal through the Westminster parliament, notwithstanding that the MPs could still reject the deal presented to them, regardless of what is agreed.

Like as not, MPs are not going to get an early chance to vote on a new deal, even if Johnson had set aside the Saturday session in the House of Commons on 19 October for precisely that reason. But if there is to be a special European Council later in the month, the timing would be ideal for framing an Article 50 extension, an application for which could then be heard in time for it to take effect before the end of the month.

That, of course, could be the ultimate in anti-climaxes. With all the hype about a deal, if all Johnson is able to do is walk away with another extension, his credibility is going to take an even bigger hit.

For the moment, though, as long as there is perceived to be the slightest chance of a deal being agreed, the hype will continue. By the end of today, we should have some better idea of where we stand which, on reflection, could be a little unfortunate for Johnson.

Wrapped up in his Queen's Speech agenda, and hoping for positive coverage in Tuesday's media, the very last thing he wants is for the EU to rain on his parade by announcing that talks have been abandoned and there is no hope of a deal being agreed at the coming session of the European Council - assuming that the talks don't continue until Wednesday.

On the other hand, one wonders what Johnson (and his advisers) really expected. Can they have imagined that throwing a complex, apparently incomplete and controversial proposal at the EU, waiting for the very last minute to do so – was going to yield dividends?

Perhaps this isn't the real play. Maybe, after the show of offering a new proposal, the game is to convince the likes of Merkel and Macron that there is no prospect of a deal, and they are better off refusing an extension, allowing the UK to cut loose.

But, if Johnson wants the cooperation of EU leaders in this ploy, then he will need to get his people to tone down the rhetoric about demanding more "concessions" and thus sabotaging the talks. The balance of advantage on blame avoidance will probably be a key factor in determining the timing of Brexit, and at the moment there is no particular incentive for the "colleagues" to allow the UK to quit by the 31 October.

So far, this just seems to be another game that Johnson is losing. The smart money looks to us still being in the EU after the end of the month.

Richard North 14/10/2019 link

Brexit: a future so opaque

Sunday 13 October 2019  

In the absence of firm information or official statements, it is extremely difficult to be certain of where we stand with the Brexit talks which are said to have continued through yesterday and are set for another long session today.

If there were first prizes for media hubris, though, the winner would undoubtedly be The Sunday Telegraph which talks of "Great Britain" being able "to exit the single market and the customs union, and to be able to diverge from all EU rules and regulations: a full, clean Brexit".

As far as Northern Ireland goes, there would be "a compromise solution" which would allow the province to take part in UK trade deals and be legally out of the customs union. Miraculously, it would maintain an open border with the Republic, alongside some form of ongoing democratic consent mechanism.

This, in the view of the ST, "would be far better practically, legally and philosophically for unionists and Brexiteers than a Northern Ireland-only backstop".

The result would not be "perfect" and, surprisingly enough, "the devil will be in the detail", where the onus is "on Mr Johnson not to stray from the principles of self-government and democratic control he so brilliantly expounded during the referendum".

The paper is in no doubt that, if the talks are evolving as we believe, the result looks to be "a real Brexit for Great Britain, with a settlement for Northern Ireland that genuinely hopes to satisfy all sides".

Needless to say, the devil always lies in the detail and while No 10 officials point out that none of the pundits know the full details of the proposed deal, the speculation of what it might contain is enough to have DUP deputy leader, Nigel Dodds fulminating that the proposed deal "cannot work".

The cause of his grief, apparently, is that Johnson is said to be ready to "shaft" the North (as in Northern Ireland), by reverting to the idea of a "wet" border in the Irish Sea. This means that there will be customs controls imposed on goods from Great Britain entering the province, in order to avoid checks on the Irish land border.

Dodds is insisting that the North should be fully within the UK's customs union, with his party refusing to accept any changes in the status of relations between Northern Ireland and the rest of the UK.

Despite recent comments from Arlene Foster (pictured with Dodds), which appeared to support Johnson's deal, the party is consistent, it says, in demanding that the UK leaves the EU as one nation and "in so doing that no barriers to trade are erected within the UK".

Assuming that the DUP's "take" on Johnson's deal is correct – and we have no means of knowing – it is relevant to ask whether the party still has sufficient political leverage to block any deal it doesn't like.

Certainly, the party itself is in a difficult position if it endorses a deal that other Unionists can cast as a "betrayal", using this to damage their electoral standing.

But, it seems, the UK government has more to worry about than the finer sensibilities of the DUP. Johnson, we are told, is "desperate" for a deal because security chiefs have convinced him that no-deal Brexit would lead to an upsurge in terrorism by dissident republican groups.

This comes from The Sunday Times, which employs another of those wondrous anonymous sources – one "familiar with the warnings" – to tell us that there was a danger of terrorist attacks in Northern Ireland and on the mainland, as well as sectarian violence in cities such as Glasgow.

We are informed of a "recent conversation" with a senior Conservative, which covered the implications of no-deal on Northern Ireland and disruption in England, when it is claimed that Johnson said: "Any one of these risks we could cope with, but taken collectively they would be a massive challenge to the UK state and no one would choose to go down that route".

Some might argue that there is a certain shallowness in that assessment, in that a solution which angers the Unionists could, of itself, trigger sectarian violence, pulling in the Republicans and triggering a full-blown replica of the Troubles. With Northern Ireland, it is never wise to take sentiment for granted.

Nevertheless, as has been pointed out, with the devil lying in the detail and no detail available, there is only so far speculation can take us. And even this may be moot as a "senior EU source" is said to be describing the chances of a deal at the European Council as "50-50", while a British government official is said to be claiming that they were "on a knife edge".

As long as the talks in Brussels go on, however, they are buying Johnson respite from the worst his critics have to offer. But all good things must come to an end and, by 5pm this evening, Barnier is due to give "EU Ambassadors" a briefing on progress so far. Saturday saw an almost unique level of security, with not a single leak escaping the talks, but Barnier will be talking to a leaky ship, and we are bound to get some intimation of where the talks stand within a matter of hours of the briefing.

The following day (Monday) Johnson will have domestic matters to attend to, as he will be attending the Queen's Speech, but he then plans to speak to Angela Merkel, Emmanuel Macron and Jean-Claude Juncker. These contacts will take place in the next two days, when we are told that Johnson's message will be: "Let's finish this off".

He is, it is said, ready to offer EU leaders "a historic grand bargain on Brexit" - help deliver "his new deal" this week or agree a no-deal Brexit for 31 October, presumably by refusing his forced application for an Article 50 extension.

It remains to be seen whether any of these players will intervene, but the likelihood is that they will take their lead from Barnier on whether to accept the deal – assuming the European Council is disposed to accept any deal at this coming meeting. It still seems far more likely that, if they feel a deal might be in the offing, the Council will offer an extension that will take us past 31 October, so that formal negotiations can take place.

However, if the "colleagues" collectively are coming to the view that Johnson's last hurrah is going nowhere, they may be disposed to consider whether to reject an extension application.

To that extent, Johnson may have queered his own pitch, in being so strident about blaming the EU for any failure to do a deal. The Council will be conscious of the potential for bad publicity in the event that they are seen to be pulling the plug. If the UK wants the Council to cast it adrift, therefore, it will need to find a formula which allows for what is, effectively seen as a "no-fault Brexit".

Yet, for Johnson, that has its own drawbacks. Given the expected adverse consequences of a no-deal, being able to blame the EU for our troubles becomes an important part of the narrative. If we part on an ostensibly amicable "no-fault" basis – with Johnson winning a subsequent general election (which looks possible), his administration will be open to taking the full blame for the trauma that follows.

This could present the prime minister in office with an unfortunate paradox. In order to exit on the 31 October with a no-deal, he is going to have to make nice with the "colleagues", yet to escape blame for the effects he needs to be at odds with the EU, conveying the impression that his "reasonable and constructive" offer has been refused.

In any event though, Johnson is hardly in control. Although he will be attempting to focus on domestic issues after the Queen's Speech on Monday, if his "new deal" is known to be dead in the water by then, he will find it hard to keep the opposition benches focused on his agenda.

Bearing in mind that, traditionally, votes against the Queen's Speech are taken as votes of confidence, the prime minister in office could find himself facing a vote that could trigger a general election on his hands, even as he wings his way to Brussels for the European Council.

It would then remain for the "colleagues" to agree to any formal application for an extension, thereby presenting Johnson with the worst of all possible scenarios when he goes to the country without having taken us out of the EU. And even if such an election is winnable, the outcome would still be uncertain.

One way or another, there is a lot riding on this week, and rarely has our immediate political future been so opaque.

Richard North 13/10/2019 link

Brexit: Russian Roulette

Saturday 12 October 2019  

When there's nothing to report, it's better to say nothing rather than indulge in excitable speculation that has been our fare from the legacy media for the last day or two.

We could somehow be close to a deal, although I very much doubt it. But it could be that Johnson is being played – led up a garden pathway that ends abruptly in a cul de sac from which there is no escape without humiliation.

On the other hand, this could be a giant hoax against the British public or even parliament. It will turn out that Barnier and the rest of our ruling elite really are shape-shifting lizards and they've had a deal stitched up for ages, ready to unroll at the last minute, just for the sheer hell of it.

What we do know of yesterday, though, is Alexander Boris de Pfeffel Johnson insisted there was a "way forward", claiming that his new blueprint - which has yet to be disclosed - would mean the "whole of the UK takes full advantage of Brexit".

On the other side of the fence, both Michel Barnier and Donald Tusk have had tweets issued in their names. The former refers to "intensifying technical discussions with UK over the coming days". These are in a "constructive spirit" (and I don't think they're talking Airfix), with the inevitable claim that the EU "will do everything it can for an agreement, fully in line with our principles".

Earlier, after a two-hour breakfast meeting with Barclay, he had described Brexit "like climbing a big mountain". For that, he said, "we need vigilance, determination and patience".

Meanwhile, a less emollient Tusk had set Johnson an ultimatum of presenting new Brexit proposals for that day or "no more chances". Later, he was talking of "promising signals" from Leo Varadkar that a deal was possible, but noted that the UK had "still not come forward with a workable, realistic proposal".

This was confirmed by two journalistic sources later in the day, one saying that the UK proposals to date had "not been the basis for a negotiation", with the other offering much the same news, that "no new UK legal text" had been submitted by the end of play.

Earlier in the day, the Commission had issued a short press release stating that "the EU's position remains the same". There must, it said, "be a legally operative solution in the Withdrawal Agreement that avoids a hard border on the island of Ireland, protects the all-island economy and the Good Friday (Belfast) Agreement in all its dimensions, and safeguards the integrity of the Single Market".

There is nothing new there but it does tell us that, despite the heady optimism in some quarters following the Varadkar-Johnson meeting, there have been no fundamental changes. In formal terms, we are no further forward.

Nevertheless, what the Commission describes as "discussions" (not negotiations) will continue over the weekend (a stark contrast to last week). Initially, the Commission said it would take stock with the European Parliament and Member States again on Monday, with a view to preparing the General Affairs Council (Article 50) on Tuesday morning. For "logistical reasons" the Member State briefing has been brought forward to 5pm tomorrow (Sunday).

Coincidentally, Angela Merkel is due to hold talks with Emmanuel Macron that evening and, while they have no locus in the negotiations, this will be an opportunity for them to exchange views on Brexit, face-to-face – if they haven't more important things to talk about.

Whatever else happens, the General Affairs Council is very much set to go for Tuesday and, under normal circumstances, if a deal was to be presented to the European Council for approval, the finished draft would have to be ready for the GAC.

For that, of course, the document would have to be translated into the EU's 24 working languages (something I've mentioned before) and circulated to the Council Members before the meeting. Yesterday, therefore, was effectively the deadline for the production of a legal text and, as we now know, this hasn't happened.

I suppose, at a stretch, something could be arranged if the UK came up with a very modest draft today – something in the nature of a supplement to the Political Declaration - but in purely practical terms, it no longer looks as if a finished draft can be got to the European Council in time.

What might be an option for the European Council, though, is for it to agree to set the date for a special Council in about ten days' time, with the declared intention of approving a legal text, on the assumption that a draft will be ready by then. Somehow, the European Parliament would have to be roped into the act, but there is a plenary on 23 October, which could be fixed to take an emergency resolution and ratify an agreement.

That still leaves legal issues to be resolved, but it is possible to say that, while a "deal" is unlikely on 17-18 October, it is theoretically possible, given that the European Council is prepared to meet later in the month.

One might expect that, if the legal text of the deal does not then materialise, the Council could instead address a request for an extension. There might then be some confusion if the Benn Act requires Johnson to apply if there is no deal by 19 October. What happens if a deal is ready on 23 October? Would Johnson still have to apply for an extension?

What, incidentally, would be Westminster's position if the Council granted the UK an extension to the end of January 2020, but with a break provision which allowed it to be terminated if a deal was agreed? If that was to transpire – and everything came together – we could still be out by 31 October.

That said, there is enormous scepticism that a deal could be forced through in so short a time. If one is on the cards, it might be better to have an extension anyway, to give time for the proper procedures to be adopted.

As long as formal negotiations (as opposed to discussions) can be held after 31 October, the Council gets over its legal prohibition of conducting negotiations on the Withdrawal Agreement before that date. For that reason alone, one might expect there to be a delay.  

The trouble is, though, that all of this is entirely theoretical unless Johnson delivers a scheme which is acceptable to the EU. And so far, with even what they've got, the EU is complaining that the UK has not delivered anything which is either "workable" or "realistic".

Despite that, both sides are sticking to the mantra that "a deal is possible", with neither wanting to be seen to pull the plug. Yet, without firm, bankable progress, there must eventually come a point when the parties have to concede that the talks have failed – or will fail to deliver at the forthcoming European Council.

So far, it seems that Brussels and London are playing a bizarre variation of Russian Roulette, where only Johnson has his head in the line of fire and Barnier pulls the trigger once for every day he fails to produce a "legally operative solution".

Richard North 12/10/2019 link

Brexit: a pathway to a possible deal?

Friday 11 October 2019  

"Doubtless", I wrote yesterday, "between now and the end of the European Council, we will get any number of excited reports from the legacy media heralding last-minute 'concessions' with hints of a breakthrough".

Little did I appreciate how quickly that might happen, as the legacy media rolls over to have its tummy tickled after the Johnson-Varadkar meeting in the Thornton Manor, on the Wirral, yesterday.

The pair had issued a press release after their meeting telling us that they had "a detailed and constructive discussion" and both continued "to believe that a deal is in everybody’s interest". Crucially, they agreed that "they could see a pathway to a possible deal".

Their discussion, according to the press release, had concentrated on "the challenges of customs and consent" and they had also discussed "the potential to strengthen bilateral relations, including on Northern Ireland". They also agreed "to reflect further on their discussions and that officials would continue to engage intensively on them".

Following the meeting, Varadkar was to consult with the "Taskforce 50" (Barnier's team) while Barclay was to meet Michel Barnier this morning, a meeting that was originally scheduled for yesterday.

With the Irish press enjoying a special briefing, Pat Leahy of the Irish Times heard that there had been "very significant movement from British side on the customs issue". He was not clear on the detail and not clear on what concessions were expected in return. But, he tweeted, "if what I hear is correct, it changes the picture substantially".

Gavan Reilly, political correspondent for Virgin Media News, tweets that Varadkar is "confident there can be a deal, before the end of this month, which satisfies all of the long-stated Irish red lines".

The Guardian's Lisa O'Carroll was equally buoyant. She thought that yesterday had felt like a significant day. "Consider", she tweeted, "that on Tuesday Downing St was briefing that deal was essentially impossible after call with Merkel, to have both leaders issue joint statement agreeing there is path to deal is quite something".

Thus did O'Carroll conclude, the "upshot of meeting is cautious optimism that [a] deal can be struck, suggestions concessions on both sides", adding a note of caution, that this was "obviously not the same as a deal being ratified by parliament". We won't know where we are with that, she said, until Johnson shares details with the party and, crucially, the DUP.

Despite the optimism, though, this whole episode raises more red flags than Chinese Communist anniversary celebrations in Tiananmen Square. Such negotiations as there have been to date have been handled by Michel Barnier, who is the EU's negotiator of record. As the procedure does not allow for any formal negotiations to be pursued by heads of government, for there to be any real progress, Barnier must re-take the lead.

That, to an extent, seems to be happening, with Varadkar meeting with Barnier's team today and Barclay dealing directly with Barnier. But it is then that the real world will intrude, as it must. If either the British or the Irish prime ministers have stepped outside the bounds of a settlement acceptable to the EU, they will be brought quickly back into line.

But the essential point is that there is a long way between drawing up heads of agreement – if they are to be had – and finalising a finished, legally coherent draft which Barnier is prepared to submit first to the General Affairs Council and then to the European Council for approval.

Today being Friday, there simply isn't time for him to complete the necessary procedures before the Heads of State and Government meet next Thursday. And the moment a first draft of any agreement is ready – if it ever gets that far – the Commission lawyers will be crawling all over it. It hardly seems likely that a first draft could be letter perfect, and not require further referrals.

However, Varadkar seems to be talking of a "deal" by the end of the month. But if the European Council slot is missed, a special Council meeting will be needed later in the month – after the 19 October. And then there's the small matter of approval by Westminster and ratification by the European Parliament. It is a considerable stretch to expect that an agreement could be legally in place by the 31st.

For all that, the Guardian is offering "key dates for the diary" which tell us that Johnson, "almost certainly needs the EU leaders gathering in Brussels on October 17 and 18 to sign off on an agreement in order to be able to take Britain out of the EU on October 31 with a deal". But if that much is right, we are not going to see a deal by the end of the month – not without the EU cutting every corner in the book.

This brings us back to the forest of red flags. Article 50 triggers an external agreement between the EU and the departing member, with the procedure subject to Art 218 (TFEU). In conformity with Art 218, Barnier must have a mandate from the Council and then the negotiations must be carried out by him.

Crucially, as we know, Barnier does not have a mandate. As to the second point, neither the European Council nor its individual members have any legal authority to undertake negotiations.

This is not an intergovernmental conference, where each of the members can negotiate on their own behalfs. Under this procedure, they are required to negotiate as a bloc, through an appointed negotiator – in this case Barnier. If they seek to make a deal and cut Barnier out of the loop, at several levels they are in breach of EU law, which could invalidate any agreement reached.

And then, of course, there is the killer, the European Council Decision of 11 April, which specifically excludes using the extension for any re-opening of the Withdrawal Agreement. Since Decisions have the force of law, for the European Council to reopen the Withdrawal Agreement and entertain amendments to it would put it in breach of EU law.

Here we have an absolutely essential point, which soars over the heads of the media. The European Council is not a summit – that implies (in fact, requires) it to be an intergovernmental meeting where each of the attendees represents their own country and can make their own decisions.

Since the Lisbon Treaty, which came into force in 2009, (and informally before that) the European Council has been an institution of the European Union. It is bound by Union law, and within the terms of the Treaty is required to promote the aims and objectives of the Union. Being a formal institution, its decisions and (some) actions are judiciable by the ECJ.

On that basis, arguably, if the European Council approves an agreement made in breach of EU law – the Council's own Decision – the agreement could be struck down by the ECJ as invalid. If there is a pathway to a possible deal, therefore, it meanders through an uncleared minefield, affording no safe passage.

And yet, Denis Staunton London Editor of the Irish Times thinks that the "deal" would involve the customs border for administrative purposes running alongside a regulatory border in the Irish Sea – the so-called wet border.

This would be about as popular with the Unionists as a bucket of cold sick, not least because it could be a major step in the direction of unification of the island of Ireland. When borders of this nature are defined, the temptation for independence to follow can be strong.

Thus, the chances are that this potential breakthrough will be dead in the water by the weekend. By Tuesday, we'll again be looking at the reality of a no-deal Brexit – until the legacy media herald yet another last-minute breakthrough.

Richard North 11/10/2019 link

Brexit: marching inexorably to a no-deal

Thursday 10 October 2019  

It is perhaps indicative of the lack of empathy with, if not understanding of, the European Union that such a big deal is being made of 19 October.

This, one will recall, is the date that the swamp-dwellers have chosen for Alexander Boris de Pfeffel Johnson to apply to the European Council for an Art 50 extension in the (almost certain) event that he doesn't agree a new deal. But it is now also the date that Johnson has chosen for a special sitting of parliament, to discuss any deal agreed by the European Council or to debate an "alternative strategy if no deal can be agreed".

We are told that the parliament has only sat on a Saturday four times since it met to debate the outbreak of World War II in 1939. Other occasions were the 1982 invasion of the Falkland Islands, the Suez Crisis of 1956 and in July 1949 for summer adjournment debates.

Assuming – for want of anything better – that the Johnson intervention is just another example of his cheap showmanship, the key element of the date is the swamp-dwellers' demand that the prime minister in office send his extension application to Brussels.

The point, though, is that this is precisely the wrong date. The European Council (the only body that can entertain a request) ends the day before, on 18 October, and is not scheduled to meet again until 12-13 December. If it decided to stick to its meeting schedule, the UK would have left the EU by the time it got down to considering the request for an extension.

At the very least, therefore, the swamp-dwellers are putting the Council to the entirely unnecessary inconvenience of having to convene a special meeting, presumably some time after 19 October but before the 31st – in fact, well before that latter date as legislation will have to be passed to implement any new leaving date that is agreed.

It takes little imagination to assert that the 27 heads of state and government, who constitute the European Council (Art 50) grouping, are busy people and would wish to spend their time more productively than attend to the ongoing soap opera of Brexit, especially as their efforts are unlikely to be rewarded with anything constructive – such as a last-minute deal.

If they had got their act together – and ignored Johnson's bluster about handbagging the Council on 17 October – the MPs would have realised that the key date is not the 19th but the 15 October, when the General Affairs Council meets. The GAC will be updated by Michel Barnier and will then prepare the October European Council (Art 50) meeting.

It is then, therefore, that we will know formally whether a deal is on the cards – from whether the GAC endorses any recommendation from Barnier to proceed with a deal – the legal text of which by then should be known – or whether there is no progress to report in that respect.

As it stands, it is pretty obvious that there will not be a deal. Earlier yesterday, the Guardian reported that Brexit talks in Brussels between the EU and the UK had come to a complete halt, asserting that sources from both sides had confirmed that no further negotiations were scheduled – although Barnier and Stephen Barclay are supposed to be meeting for a working lunch today.

We also, of course, have the meeting between Johnson and Leo Varadkar today, supposedly in Liverpool. For a variety of good reasons, any chance of a breakthrough can be discounted – even supposing the parties were close to agreement, which they are not.

For sure, there was a brief frisson when The Times reported that the EU was ready to make "a major concession" by providing a mechanism for the Northern Irish Assembly to leave a new Irish backstop after a set number of years.

EU officials, though, were quick to deny any knowledge of this and, within a matter of hours had confirmed that such a proposal was not being discussed. The Times has a habit of doing this sort of thing - making up speculative stories on foundations of sand. Their half-life is usually hours, before being rebutted. One suspects the paper does so because it allows it to set the morning agenda with an "exclusive" and get a mention on the Today programme.

Anyhow, while the BBC's Brussels correspondent played down the Guardian "scoop" about the cessation of talks, saying that David Frost was slated to return to Brussels yesterday night, he did concede that "sources on both sides" had suggested that "the technical talks may have run their course".

Later in the day, we had Michel Barnier – alongside Jean-Claude Juncker – addressing the European Parliament in Brussels, telling MEPs that Brexit "creates concrete, precise and serious problems, especially in Ireland". He then went on to say, "In the face of these immediate problems, we need today, and not tomorrow, precise, operational, legally binding solutions for both parties".

Adding a non-scripted aside, he declared: "To put things very frankly though and to try and be objective, at this particular point we are not really in a position where we are able to find an agreement".

That leaves next to no chance that the Friday deadline set by Varadkar and Macron is going to be met, which in turn means that the General Affairs Council is going to have nothing to work on the following Tuesday, and Barnier will not be able to recommend a deal for adoption by the European Council.

Nor can we take anything from Juncker's input to the European Parliament. Speaking before Barnier, in a rather sour intervention, he declared that "we remain in discussion with the United Kingdom on the terms of its departure". "Personally", he did not "exclude a deal" and reiterated that he and Barnier were "working on a deal". But, he said, "we are not accepting this blame game in London. We are not to be blamed!"

All of that, individually and collectively, should have Westminster MPs focusing on the outcome of the GAC on the coming Tuesday, which will give them the cue to act. The logic would have been for them to instruct Johnson to make his application to the European Council on the 16th, giving it time to consider its position and come up with a decision before the heads of state and government disperse on the Friday.

However, the die is cast and doubtless – in the manner of The Times - between now and the end of the European Council, we will get any number of excited reports from the legacy media heralding last-minute "concessions" with hints of a breakthrough.

None of these will come to pass, although that does not rule out the possibility of some surprises, with one or other of the parties pulling a plump rabbit out of the hat. There is talk, for instance of Johnson staging a dramatic walk-out during the European Council, something which Brussels is marking down as a strategy to "fabricate a crisis".

One wonders though, whether anyone even cares. An EU diplomat says: "You can hit your fists on the table but in the end only the fist will hurt". He adds: "If they [the UK team] want to walk out, they can walk out but if they want a deal they will have to come back to the table".

Certainly, Juncker at the European Parliament yesterday didn't give the impression of a man who would be devastated if a deal wasn't struck, and Johnson already seems to have his election strategy worked out, which discounts the possibility of a deal.

Earlier yesterday, he was said to have promised centrist Conservative MPs he will not go into an election arguing for a no-deal Brexit, thereby not including such a commitment in the party manifesto. But no sooner had this been aired, than we were seeing denials, with a "senior government official" saying that no manifesto had yet been agreed.

Even then, a promise that no-deal wouldn't be the "main aim" of government policy does not rule out it being a fallback. We could expect the usual mantra, with the government committed to a getting a deal, but preparing to leave without one, if a deal could not be agreed.

Either way, and especially after the alarums of Tuesday, we seem to be marching inexorably to a no-deal. So far has sentiment reversed – from the Johnson bluster of a "one in a million" chance of a no-deal – that the only real surprise would be an agreement on a deal. But the chances of turning water into wine might be greater.

Richard North 10/10/2019 link

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