Brexit: a recipe for chaos

20/11/2020

You might think that him (or her) up there didn't want the EU and the UK to make a deal, given the latest obstacle thrown in the way of a successful conclusion.

But just as we were gearing ourselves for a wonderful Wagnerian ending, with the fat lady singing her socks off on either Monday or Tuesday – albeit celebrating an extremely "skinny" deal – up pops Mr Covid and fells one of the negotiating team.

As a result, we learn, face-to-face talks between Barnier and Frost have been suspended, although the teams – sans the infected one – will continue their work for the time being.

I am not sure that Frost's comment in response to this embodies the best-chosen words, when he says that he will stay in "close contact" with Barnier about the situation. One would have thought that "close contact" was the very last thing they had on their minds.

Nevertheless, despite the infelicitous phrasing, we get the point that the development is a "big complication" and something of an obstacle for the negotiations as deadlines continue to slip.

But it's not only Frost who is using the wrong words. "EU sources" are saying that Barnier will have to quarantine for ten days, until 29 November, under Belgian law, but that he and Frost will "remain in constant contact". All they had to do is substitute "communication" in exchange for "contact" and the message would have been robbed of its ambiguity.

From the look of it though, the fat lady wasn't going to sing anyway, and has been stood down for the duration. Barnier is expected to hold a video conference today with EU ambassadors, when he is expected to tell them that negotiations are still deadlocked on "philosophical" differences over the "famous three".

In other words, nothing much has changed, which really makes you wonder what the negotiation teams are doing all day when they are facing each other in the same room. This has the stuff of a magnificent sitcom, along the lines of Yes Minister. They could call it Non Monsieur.

At least with a disease emerging in their ranks, the parties have actually got something to talk about, with a UK government source – another nameless wonder – practicing his (or her – its?) understatement, perhaps auditioning for the new show.

The situation, this source says, is "not ideal", leaving officials to scrabble round, trying to establish who, if anyone, from the British team would be required to quarantine.

"It's complicated by the fact that you have two different sets of public health rules in the UK and Belgium", they say. The UK's quarantine requirement is 14 days. Ideally, I suppose, we need an EU intervention on this, which raises some rather interesting questions.

When SARS was recognised as a pandemic disease in 2003, after an outbreak in Guangdong Province, China, the EU had already acquired powers to set up a network for the epidemiological surveillance and control of communicable diseases.

However, these powers were relatively weak and, when in 2004 the EU established the European Centre for Disease Prevention and Control (ECDC), based in Solna, Sweden, its role was largely advisory, issuing guidance to Member States.

Having made the same mistake as the UK in focusing on pandemic influenza to the exclusion of SARS. Nonetheless claiming in 2007 that Europe was "the best prepared region in the world for the next pandemic", it has since presided over the policy train-wreck that has characterised the EU's approach to managing Covid-19.

Yet, as always, poor historic performance was merely a prelude to "more Europe". On 11 November 2020, the Commission proposed a new regulation on "on serious cross-border threats to health", setting out "a comprehensive legislative framework to govern action at Union level on preparedness, surveillance, risk assessment, and early warning and responses".

What had previously been a matter of cooperation between Member States under the guidance of the ECDC is now to become mandatory – a typical application of Monnet's community method, which is quite obviously alive and kicking.

However, since the UK will shortly be outside the regulatory orbit of the EU, we will be unaffected by this regulation, and free to make our own mess of managing Covid-19, which our government has been doing with uncommon verve.

In exercising our fabled sovereignty, we can exercise our right to have different quarantine periods, continuing to steal a march over the evil continentals by having a 14-day lockdown instead of ten. Such are the benefits of Johnson's Brexit.

That aside, with the likelihood of next week's deadline being missed, there is talk of the European Parliament not being able to ratify any deal during its plenary session starting on 16 December, so there is more chatter about an emergency session in Brussels on 28 December.

I had a look at this a few days ago and I still don't buy the idea of MEPs all over Europe breaking into their Christmas hols to fly to Brussels for a day to cast a vote. And, in any case, there are the committee preliminaries to consider.

However, never fear. The Times is on the case, being told something that we'd worked out for ourselves days ago. EU officials have told this revered newspaper that the real legal deadline for negotiations is midnight on New Year's Eve (European time, of course – 11 pm in real money).

A last-minute deal, they say, can be implemented without ratification by MEPs, on the basis of an agreement by the Council to a provisional application pending ratification by the European Parliament in the new year.

Diplomatic sources are suggesting that if continuing negotiations is politically acceptable - as may be especially the case when the delay is caused by the coronavirus - deadlines can be much more flexible.

We also learn that the expected agreement, a framework treaty containing trade, security and fishing deals, is expected to be an "EU only" deal, meaning that it does not need to be ratified by national parliaments.

But The Times seems to be a little confused, suggesting that it doesn't need ratification by the European Parliament. The paper cites a diplomatic source, saying that "Normally the council seeks consent of the parliament", adding that, "if time was running out all it takes is a Council decision to provisionally apply an EU only agreement, which is what is expected. This is fully in line with the treaties".

The point, of course, is that "provisional" application is precisely that – provisional pending ratification. The EP still has to do its stuff. Yet this diplomatic source is saying that ratification is "a political not a legal requirement". That is wrong – the paper needs to get a new, more reliable source, or read the Commission website.

And, as it stands, though, there may be other problems. Even if this is a "bare bones" deal, if it covers security and fishing, then it is not an "EU only" deal. Fishers, fisheries, excluding the conservation of marine biological resources, and the area of freedom, security and justice, are shared competences. Any such deal would have to be ratified by Member States as well as the European Parliament.

That doesn't change anything in terms of provisional application. The Council can still give its approval, but it would mean that ratification could take a lot longer. It also gives Member States a veto, which could create further problems.

But, for the moment, we have more pressing problems. If the negotiations run into December, businesses will be faced with the prospect of having only few days warning before they have to implement an entirely new trade regime. If that isn't a recipe for chaos, I don't know what is.

Also published on Turbulent Times.