Richard North, 27/09/2019  
 


In what must qualify as the understatement of the century, the Speaker observed at the beginning of business in the Commons yesterday that, "I think there is a widespread sense across the House and beyond that, yesterday, the House did itself no credit".

But, as always, the MP collective continued to prat about through the day, bunking off early after a poorly attended debate on "Principles of Democracy and the Rights of the Electorate" (pictured), then to award themselves the day off today, ready to resume "work" at 2.30pm on Monday.

The general lack of enthusiasm for parliamentary spade work was noted by Cabinet Office minister Oliver Dowden, who led the debate. He remembered, "the cries of outrage on Prorogation and the demands that Parliament should return because we had so much to discuss".

The opposition, he said, "were desperate to discuss these things, yet here we are, mid-afternoon on a Thursday, two days in, and I think I can count the number of Labour Members present on the fingers of one hand".

Needless to say, while parliament consigns itself to irrelevance, the action was elsewhere, with Michel Barnier briefing the EU-27 ambassadors on the latest developments (and lack of them) on Brexit. Unsurprisingly, he told them that Britain had yet to provide any "legal and operational" proposals, despite having tabled a fourth "non-paper", this one covering Irish border provisions.

A Reuters report of the briefing had the ambassadors "highly sceptical" that a deal could be had. The British proposals to replace the backstop were said to be "far from solving the border conundrum", with one diplomat saying that the UK proposal was "not operational" and would amount to the "disintegration" of EU checks on its external borders and create risks for the Single Market.

A tweet covering the same briefing confirms that the UK has not made proposals that the EU can accept but then makes it clear that Johnson's wet dream of handbagging the European Council on the 17 October isn't going to happen.

According to this source, there will be no negotiations on a legal text at the Council and Tusk has made it clear to Johnson that there will not be an all-night session to negotiate a legal text.

If there is to be an agreement it needs to be ready before the Council. And then, it's far too early to discuss what will be on the agenda for the 17th. Diplomats have been told to wait and see if anything "serious" is tabled by the UK after the Tory party conference.

Earlier in the week, after the meetings on the margin of the UN General Assembly in New York, we had the Irish Times pre-empt part of this briefing. In their meeting, Tusk and Leo Varadkar agreed that the UK must produce definitive written proposals next week – which effectively gives Johnson to the end of the Tory conference, plus a few days, to deliver.

Said Varadkar at the time of the UN meet, "The withdrawal agreement is actually an international treaty. It's not the kind of thing that can be amended or cobbled together late at night at the European Council meeting".

Thus, if the UK does have "meaningful proposals", changes that they would like to suggest to the withdrawal agreement or to the joint political declaration more particularly, Varadkar added, "we really need to see them in advance so that they can be worked through and worked up" in advance of the Council.

He continued: "It's essentially the way the European Union works. We have working methods, and I know that President Tusk and other EU heads of government would like to see British proposals in writing really in the first week of October, otherwise it is very hard to see how we could agree something at the summit in the middle of October".

None of this, however, really needed to be said. As I pointed out in my post at the beginning of this month, anyone familiar with the way the European Council works, and the treaty law relating to the Article 50 negotiations, will already know that the idea of last-minute negotiations in Brussels on the 17th is total fantasy. The Council simply doesn't work that way - it can't. The negotiation procedures are set out in the treaties, and they must be followed.

In my piece I also wrote about any negotiations lying outside the framework of Michel Barnier's mandate, which would have to be renewed before he could engage formally, and bring talks to a conclusion.

Intriguingly, this came up in a little-reported debate in the Commons yesterday. The permanent under-secretary for DexEU, James Duddridge, answering urgent questions, noted that Michel Barnier's mandate to negotiate "has not formally started". He added that this "cannot happen until the European Council, where effectively all the work will be done".

In response to Labour's Alex Sobel, he did not deny that that the government's "plan A" is to "get a withdrawal agreement agreed at the European Council", which would seem rather difficult to do if Barnier is not authorised to conclude an agreement for transmission to the Council for it to approve.

That leaves Philippe Lamberts, a member of the European Parliament's six strong Brexit Steering Group, to pitch in. According to Reuters, he spared Johnson no criticism as he arrived for the meeting with Barnier yesterday.

Speaking of Johnson, Lamberts said, "He's not seeking a solution because a solution would mean first finding a compromise with the European Union, then building compromise in Westminster (the UK parliament) to pass an agreement". He added: "So maybe his strategy is another one and I believe it has been all along ... to provoke a no-deal Brexit but in a way that would allow him to blame others - either Brussels or Westminster".

Putting this altogether, it becomes clear that any idea Johnson might have of a grand showdown in Brussels on 17 October is pure fantasy. There will not even be any negotiations.

The best that can happen from his perspective is that the Council will consider a report from Michel Barnier, and perhaps play with the text of the Political Declaration, possibly clarifying or expanding the text of the Strasbourg Agreement brokered by Mrs May in March of this year.

It is by no means clear that the text of the Withdrawal Agreement will be touched, but there could be a protocol appended (albeit unlikely), which deals with some specifics of the backstop, and the implementation of any "alternative arrangements". More likely, it would be another supplement to the Political Declaration.

But what is clear is that nothing the UK has so far submitted goes any way towards constituting a proposal which might be acceptable to the EU, while time is running out fast. Unless Johnson can come up with something by the end of next week, it would look to be game over.

Where precisely that leaves the Johnson administration is difficult to assess. But if the prime minister in office comes away with empty hands, the terms of the Benn Act – Johnson's infamous "surrender act" – would ostensibly require him to seek an Article 50 extension to the end of January 2020.

I think we must assume, on current form, that Johnson will not get a deal in Brussels next month, although he may be given a piece of paper which he can wave as he disembarks from his aircraft on his return to London. Possibly, he may be able to spin that as an "agreement" which he can tie in with the existing Withdrawal Agreement to put to parliament.

But, as it stands – and especially after this week's shenanigans – we have a better chance of seeing the Labour front bench digging their eyes out with blunt knitting needles than giving Johnson a victory, or letting him off the hook on which he is currently impaled.






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