Richard North, 05/12/2020  

About the only things of which we can be absolutely certain, in respect of the "future partnership" talks, are the points raised by Barnier in lieu of a joint statement with the David Frost.

From these we can take it that the two lead negotiators are agreed that "the conditions for an agreement are not met, due to significant divergences on level playing field, governance and fisheries".

Secondly, they have agreed to "pause the talks" in order to brief their Principals on the state of play of the negotiations. And thirdly, von der Leyen and Johnson will discuss "the state of play" later this afternoon.

In some senses, this follows exactly the expected choreography of the deal, where the negotiations would stall over one or more specific points, requiring a last-minute dramatic intervention from the lead actors, from which a deal would later emerge.

And although this could indeed by the outcome, with a triumphal conclusion reached on Monday, in time for the preparations for Thursday's European Council, there are certain elements here which strike a discordant note.

The first is the emphasis with which state funding seems to have emerged as the key issue, despite the earlier high profile given to fishing, culminating in what appear to be very specific demands for a penalty system to be applied if the UK diverges from the agreement.

But the fishing issue has also acquired a new edge, with what is claimed to be a "ridiculous" demand for ten years of "unfettered access" to Britain's fishing waters as the price of a deal.

Macron himself seems to have invested a significant amount of political capital in these demands (whatever their actual details might turn out to be), which means that he is personally out on a limb. A last-minute compromise which might satisfy the British would, therefore, represent something of a "humiliation" for the French president, which is not where he wants to be.

On that basis, this current situation seems to be slightly more than a "lovers' tiff", set up for the benefit of a jaded media and politicians who need a bit of drama to brighten up their boring lives. There is a distinct possibility that we could be on the verge of a permanent breakdown of the talks.

What is interesting about this is the French talk of exercising a veto, if it is not satisfied with the deal. But this is, as we are constantly being led to believe, a straightforward deal which only requires the consent of the European Parliament and the agreement of the Council to conclude negotiations, then there is no veto afforded to any single Member State.

Agreements of this type, made under Article 218 TFEU, provide mainly for qualified majority voting, in which case French objections could (in theory) be over-ruled.

However, as I have mentioned previously, the inclusion of a fishing deal (and the possible security elements which may have been included – plus other issues) potentially turn this deal into a mixed agreement which will require the ratification of all 27 Member States.

France's European Affairs minister, Clement Beaune, is saying that his government "won't accept a bad deal", and then goes on to say that, "If there were a deal that isn't good - which in our evaluation doesn't correspond to those interests - we will oppose it. Yes each country has a veto, so it's possible".

If Beaune is correct, and every country does have a veto, then it can only be because the deal is a mixed treaty. Only in that case could the French government signal its intent to veto. But, if it did, that would make further progress on the treaty fruitless. There is little sense pushing a deal to the wire if one of the parties has already decided to block it.

However, up to press, we have not had any formal acknowledgement that this is a mixed treaty – even though its content signifies that it must be. But if it is, there is absolutely no chance of ratification be the end of the year. The only thing that can be achieved is an agreement on provisional application, requiring a majority vote from the European Parliament and a Council (of Ministers) vote.

The oddity of this is that the Council vote is also by QMV, which means (again in theory) that the French could not stop a deal being applied, even if it later blocked it and the provisional application had to be lifted. If the Member States want to go out on a limb, they could marginalise Macron.

Nothing of what we're hearing, therefore, seems to make complete sense. If the French do have a veto, then it is at the Member State ratification stage, and the whole process is far more fragile than a deal which only requires Council and Parliament assent.

If what we are hearing is correct though, and Barnier is returning to Brussels, with negotiations not to resume until after the Principals' meeting, then we are at a very delicate stage.

Undoubtedly, it will not only be Johnson who is talking to von der Leyen and it is a fair bet that, by the time the British prime minister picks up the phone this afternoon, she will have talked to Macron and also Merkel.

Generally, in matters such as these, the "Franco-German motor of integration" prefers to speak with one voice. Thus, we can also assume that Merkel and Macron will be talking, perhaps several times – with and without senior advisors – before their consensus view is put to von der Leyen, then to become the Union position, over-riding anything that Barnier might have to say.

That itself would be a difficult position for Barnier, who so far has held the confidence of the Member States and has been able to make the running. To be over-ruled at the last minute would represent a personal set-back for him, and something of a rebuke to his team.

With that, the die could well have been cast before Johnson gets to make his intervention this afternoon. His may not be the decision to pull the plug, although he may be manoeuvred into that position when confronted with an unyielding von der Leyen, acting on instructions from above.

Johnson, of course, has his own domestic problems, with a fractious cadre amongst his backbenchers telling him "this far and no further", and the intentions of the Labour opposition as yet unclear.

What is not going to make his life easier is a deal which makes obvious concessions to the French, to the extent that it has Macron crowing that he has put one over the British. The best that can possibly be hoped for at this stage is the doctrine of "equal misery", where everyone walks out of the room equally pissed off.

That, though, will require the French and Germans reaching a degree of accord that Macron can live with. And, at this point, with the negotiations currently having been paused, we could see the French President seeking to extend that pause.

Bizarrely enough, the mechanism of "stopping the clock" is feasible – even if the legal base might be dubious. All the Council has to do is issue a decision to the effect that, in any references to the end of the transition period, the date of 1 January 2021 should be taken to mean 1 February, or whatever other date is chosen. It would, however, also require an emergency Act of Parliament from Westminster.

Failing that, or some other equally creative solution, we may actually be confronting the breakdown of the talks and a no-deal scenario taking effect on 1 January, with all that that entails. Then we will see the blame game take over with a vengeance, leaving little scope, amid the recriminations, for further talks any time soon.

It will be interesting to see, however, whether the Principals pull the plug today or whether they leave it until Monday. I suppose we might get some clue if the negotiation teams go back to work On Sunday. But if Monday is being set as the as the final, final deadline, time is perilously short.

Also published on Turbulent Times.

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