Richard North, 03/09/2019  
 


From his statement in front of Number 10 yesterday, Alexander Boris de Pfeffel Johnson (pictured) seems convinced that the UK "will get a deal at that crucial summit in October".

This comes from a man holding the office of prime minister, who is thus ultimately responsible for the conduct of negotiations between the UK and the EU-27. So it is absolutely staggering to find that he is advancing a scenario which, on the basis of the most fundamental procedural grounds, simply cannot happen.

Looking at this in the round, it is fairly logical to assume that in order for there to be an agreement, there must be a negotiation. And, in the case of Article 50 negotiations, this is indeed the case, with the procedure being set out in Article 218 of the Treaty of the Functioning of the European Union.

No matter what the wishes of the parties, there are no short-cuts. If the procedure is not followed, nothing legally valid can follow. Mrs Merkel, Emmanuel Macron and Johnson could not, for instance, meet together and forge an agreement. Negotiated outside the framework of Art 218, it would have no legal effect.

And the point is that the relevant article does not allow for direct negotiations between the EU-27 and the exiting state – in this case the UK.

As we have already seen in the progress of the talks to date, the Council has certain specific roles. It authorises the opening of negotiations, adopts negotiating directives (the mandate) and then, once negotiations have been completed, authorises the signing of agreements and takes the necessary measures to conclude them.

In terms of the conduct of the negotiations, the Council and the Commission nominate the Union negotiator or the head of the Union's negotiating team and it is he (in this case Michel Barnier) who carries out the talks. Only when he is satisfied that the terms of his mandate have been met, will he, with parties concerned, draft a formal agreement which he will forward to the Council with a recommendation for adoption.

Once the Council authorises the signing, the agreement must be ratified by both the Westminster and European Parliaments.

The current negotiating directives were published on 22 May 2017 and form the basis of Barnier's working instructions, alongside the European Council's guidelines, which were published on 29 April 2017.

Crucially, M. Barnier must keep within the terms of the directives and guidelines. He has no discretion in this and, should he want (or be required) to move outside them, he must seek formal revisions. And in particular, he must respect the "core provisions" of his guidelines, not least of which is the requirement that any agreement must "preserve the integrity of the Single Market".

Under the procedures set out, therefore, it is a given that any new round of negotiations between the UK and the EU-27 must be initiated by the UK as a formal proposal addressed to the Union's chief negotiator, who is (still) responsible for the conduct of the negotiations. Procedurally, they cannot be initiated by the UK at European Council level, as between Johnson, Donald Tusk and the EU-27.

However, even then it is not that simple. Johnson has rejected the Withdrawal Agreement finalised between Mrs May's government and the EU-27, and the new demands he is making would set any subsequent agreement outside the framework of the existing negotiating guidelines, by breaching the requirement to maintain the integrity of the Single Market.

Before Barnier could consent to a new round of negotiations, therefore, he would have to go back to the Commission to ask them to frame a proposal for amended guidelines and directives, to put for approval to the European Council. Even if there was a willingness to do this (and there isn't), this has not been done, and there are no proposals in the pipeline. On these grounds alone, there could be no re-opening of the negotiations.

Just supposing the European Council had a change of heart, and was prepared to issue new guidelines to Barnier, that could only happen – at the earliest – at the 17 October Council, the very meeting at which Johnson believes he could conclude a new deal.

All that can happen (at best, as far as Johnson is concerned) is that the Council might agree new guidelines in October, whence Barnier will be free to set up a new schedule of talks with UK representatives. Once the heads of agreement have been established, and details finalised, a new draft agreement can be drawn up and initialled, and submitted (after consultation with Member States) to a further meeting of the European Council.

The next scheduled meeting of the EC is on 12 December which - as some of our more perceptive readers might realise – is after 31 October, the date on which Johnson would have us leave. But then, of course, Westminster and European parliament ratification would be required, the former being no foregone conclusion (not that the European parliament could necessarily be relied upon).

In fact, the chances of guideline revisions being put to the European Council in October are nil. As we saw on Sunday, Michel Barnier has rejected unequivocally Johnson's demand that the backstop is removed, and the Withdrawal Agreement will not be renegotiated. Even if there was a procedural mechanism for giving Johnson what he wanted, there is no political will.

And yet, incredibly, we had Johnson standing at his lectern yesterday, in all seriousness trying to tell us that, "as we come to that Brexit deadline", he is "encouraged by the progress we are making".

In the past few weeks he believes that the chances of a deal have been rising – and for three reasons. They (the EU) can see that we want a deal; they can see that "we have a clear vision for our future relationship with the EU - something that has perhaps not always been the case". And "they can see that we are utterly determined to strengthen our position by getting ready to come out regardless, come what may".

So, we want a deal – which we are signalling by demanding changes to the Withdrawal Agreement which are politically impossible for the EU to concede and which are not a procedural possibility within the timescale set. And, if we don't get our way, we are prepared to trash our economy – the so-called "Blazing Saddles" gambit.

This path is so far beyond delusional that it takes us to the fringes of madness. This is not the action of a mature adult, and not one we should be getting from a man who occupies the post of UK prime minister. It is not in any way, shape or form, a proposition which lies within the real world. By what possible measure can Johnson be "encouraged by the progress we are making"?

But it is there that the madness becomes collective. So painfully obvious is it to any sentient being that the man is talking rubbish that the entire press corps should be rising up as one to say so. Yet, while we get the now-ritual denouncements from Simon Coveney in the Irish Times, the UK media has looked madness in the face, nodded its collective head and moved on without comment - nodding donkeys on the parcel shelf of the prime-ministerial SUV.

We are no longer looking at political events here. Distorted news values are a disease – where the soap-opera is an all-absorbing obsession. Journos have become drama addicts: we don't get news any more – only pathology.






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