EU Referendum


Brexit: at the end of the day


28/09/2017




Since he went over to Brussels on Monday, ostensibly to lead the UK Brexit delegation, David Davis has met Michel Barnier once – and that was on the Monday.

He then went on to meet Dutch Foreign Minister Bert Koenders (pictured), "to discuss future cooperation", Danish Foreign Minister Anders Samuelsen, "to discuss our ambition to be the strongest friend and partner to the EU", and European Parliament President Antonio_Tajani, "to discuss our ambition for a new era of cooperation between the UK and the EU".

In other words, Mr Davis is doing everything but the job he was appointed to do as the UK's chief negotiator. Not even for the highly sensitive question of the Irish border does it appear that Davis was on the case when it was discussed yesterday by UK and EU negotiators.

He is back in the fray today, when he meets Barnier again to review progress before the final press conference for the session. And, unless there has been a remarkable breakthrough – of which there have been few hints – we expect M. Barnier to tell us that he will not be able to inform the European Council that "sufficient progress" has been reached on the Phase One withdrawal issues.

That there have been barely any leaks from the negotiators of either side could be taken as a sign of progress, but it could reflect the determination not to let premature media comment stress an already strained relationship.

However, it has been suggested that the EU might be prepared to bring forward talks on a transition period, even though Phase One issues haven't been fully satisfied, in an attempt to keep the UK at the table. This will be a concession on the structure of the talks, rather than on any substantive issue.

Despite that, it appears, the European Parliament has already decided that the UK has not made sufficient progress, without waiting for the outcome of this week's fourth round. It is planning to hold a debate next week, coinciding with Mrs May's conference speech, from which a resolution is expected to state that there should be no move to Phase Two.

Of course, it will be for the European Council to decide whether to allow the negotiations to proceed to Phase Two. They will listen to the Parliament but the advice from M. Barnier will be crucial. Nevertheless, the Council will make up its own mind, which is why Davis and his ministerial colleagues have been carrying out their "charm offensive", appealing to Member States to give Barnier a mandate to move on.

EU officials are not impressed. They are saying that this "divide and conquer" approach is unlikely to work. There is "resounding support" for M. Barnier as the single point of contact between the EU and the UK – as Barnier himself has been quick to point out, followed by Donald Tusk on Tuesday.

One cannot but help conclude that it would be illogical of the UK to put so much effort into "love bombing" the Member States if they were confident of a positive report from M. Barnier, especially as this risks irritating the Council members, triggering an unfavourable reaction.

Mrs May herself will get a chance to sound out sentiment personally on Friday when she goes to Tallinn, Estonia, for the autumn "informal summit" of the European Council. There, the holders of the rotating presidency are using the platform "to launch high-level discussions on further plans for digital innovation with the aim of keeping Europe ahead of the technological curve while becoming a digital leader, globally, in the years to come".

Ahead of what is being styled the "Tallinn Digital Summit", there will be dinner attended by the 28 heads of state and government (HSG). During this and the following day, the Prime Minister is expected to hold a number of meetings on the fringe the events, sounding out colleagues on their intentions for the Council meeting of 19/20 October.

Brexit is not on the formal agenda for the Tallinn meeting but, in a letter to colleagues, Donald Tusk does warn that Brexit "remains one of the main tasks" for the European Council. It will, he writes, be "the subject of our next meeting of 27 [members] in October, on the basis of Article 50".

Pointing to an increasingly urgent concern, Tusk notes in the letter that the Council has "a big task in front of us when it comes to the next multiannual EU budget", taking effect from the beginning of 2021. The discussion, he says, which will shape our policies for the years to come, "will start in earnest once we have concluded the agreement on the UK's withdrawal".

The Council President acknowledges that the issues arising cannot be dealt with, let alone decided on at Tallinn, but the meeting "will be a good opportunity to discuss how we approach this debate". In order to ensure "an open, frank and informal exchange on these issues, there will be no texts on the table, and no written conclusions will be drawn from our discussion".

The linkage with the Brexit is instructive, and reminds us that the Council will have difficulty concluding its budgetary planning until it has an outline of the UK financial settlement. Doubtless, Mrs May will be under pressure to be more explicit about her intentions – assuming that matter has not been resolved by David Davis in Brussels today.

Outside observers note that this Council is Mrs May's last opportunity to meet all of the "colleagues" in one place before she goes to her Party conference in Manchester. It is an opportunity to make a high-profile announcement, if she is so minded, as well as to listen to the views of the other 27, individually and collectively.

Rumours continue to the effect that Mrs May is preparing to walk away from the talks, and Tallinn would be a good opportunity to announce her intention to do so. In particular, the timing is especially significant. Unless the UK decided to plead "special urgency" (which it could well do), this is the last but one day that it could give the three month notice required by Article 65 of the Vienna Convention on the Law of Treaties (VCLT), in time to leave the EU by 1 January 2018.

This is the procedure that must be followed if the UK intends to abrogate the EU Treaties, invoking either Articles 61 or 62. Only after this period of notice can it lodge the instrument of termination, to be communicated to the other parties.

Surprisingly, this is not as drastic a move as might seem at first sight: the process can be suspended by any party raising an objection. In that event, the parties must seek a solution by arbitration or other means specified by Article 33 of the United Nations Charter.

Even though a "walk away" threat is judged to be a bluff (not least because no preparations seem to have been made for it), this could still have the effect of forcing the "colleagues" onto the back foot. It would put them into the position of supplicants, and could liberate the UK from the "tyranny" of Article 50. In so doing, it would take jurisdiction from the ECJ and place it with the International Court of Justice at The Hague, actionable by a request to the United Nations Secretary-General.

Sometimes, just the threat of such action – without it even being publicly articulated – is enough to un-jam delicately poised talks, but the very fact that there is a VCLT option means that the UK's shot locker has not yet been emptied. The downside, of course, is that if the EU sits on its hands and does not make an objection, we would be out on 1 January. That would make such a move a huge gamble.

Much will rest on the outcome of the talks today and, as before, the only certainty is that by the close of business, we will know more than we did at the start.