Richard North, 12/10/2019  
 


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".






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