Brexit: a pathway to a possible deal?

11/10/2019

"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.