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Brexit: trust is good, but law is better

2020-11-26 08:07:37

So, von der Leyen speaks, and the world listens. "These are decisive days for our negotiations with the United Kingdom", she says. "But I cannot tell you today, if in the end there will be a deal".

We've been at this "game" since 29 March 2017, which makes more than 3½ years of negotiations. And, days away from the deadline, von der Leyen says, "I cannot tell you today, if in the end there will be a deal".

The interesting thing, though, is that we were warned – by that self-same von der Leyen. On 8 January of this year, she was in London delivering a speech to the London School of Economics, when she had some home truths to say.

"Without an extension of the transition period beyond 2020", she said, "you cannot expect to agree on every single aspect of our new partnership", adding: "We will have to prioritise".

Giving fair warning, von der Leyen went on to say: "With every decision comes a trade-off". The European Union's objectives in the negotiation are clear, she emphasised. "We will work for solutions that uphold the integrity of the EU, its Single Market and its Customs Union. There can be no compromise on this".

The same day, Johnson met the Commission President, telling her he was ready to negotiate a Canada-style Free Trade Agreement. This, he apparently defined as "a broad free trade agreement covering goods and services, and cooperation in other areas".

However, a Downing Street spokesman confirmed that, during the meeting, Johnson was "clear that the UK would not extend the Implementation Period beyond 31 December 2020".

And here we are then, days away from December, and von der Leyen's prediction is coming true. At the very least – assuming we do end up with an agreement, it won't fulfil all Johnson's ambitions for services and there will be very little coverage of "cooperation in other areas". The need to "prioritise" will give us no more than a "bare bones" agreement, if indeed we get even that.

As it currently stands, von der Leyen is telling us that "there has been genuine progress on a number of important questions: on law enforcement and judicial cooperation; on social security coordination".

Furthermore, she says, "on goods, services and transport we now have the outline of a possible final text. In these areas there are still some important issues to agree, but they should be manageable".

However, much to the surprise of no-one at all, von der Leyen informs us that there are still three issues that can make the difference between a deal and no deal: the level playing field, governance and fisheries. "With very little time ahead of us, we will do all in our power to reach an agreement. We are ready to be creative".

But here we get the repetition of the warning she gave back in January: "We are not ready to put into question the integrity of our Single Market" she says. If nothing else, the Commission has been entirely consistent on this. We've had it multiple times from Barnier, and from Juncker when he was Commission President. We cannot say we haven't been warned.

And this is why, von der Leyen says, "we need to establish robust mechanisms, ensuring that competition is – and remains – free and fair over time". In the discussions about state aid, she adds, "we still have serious issues, for instance when it comes to enforcement".

Despite the hundreds of hours devoted to the negotiations, she says that: "Significant difficulties remain on the question how we can secure – now and over time – our common high standards on labour and social rights, the environment, climate change and tax transparency".

Says von der Leyen: "We want to know what remedies are available, in case one side deviates in the future", then coming up with a nice turn of phrase: "Because trust is good, but law is better". Obviously, with the UK Internal Market Bill in mind, she says that: "in light of recent experience: a strong governance system is essential to ensure that what has been agreed is actually done".

Concerning fisheries, we are firmly told that no one questions the UK's sovereignty on its own waters. But, she says, "we ask for predictability and guarantees for our fishermen and women, who have been sailing in these waters for decades, if not centuries".

That's possibly her weakest point, given the genesis of the CFP and the way the UK has been treated over the decades, but I doubt whether she's even been told the full version of what transpired during the accession negotiation, and during the development of the CFP.

However, she's the one in a position to know what she's talking about when she says that "the next days are going to be decisive". She assures us that the EU "is well prepared for a no-deal-scenario" – in so far as anyone can be - but prefers to have an agreement.

But then she reminds us (and Johnson in particular), if he is even capable of listening, that whatever the outcome, "there has to be – and there will be – a clear difference between being a full member of the Union and being just a valued partner".

All this is straight from the horse's mouth, as delivered to MEPs at the European Parliament yesterday, and if Johnson doesn't want to read the transcript, there are also the UK papers, many of which are running reports of her speech.

Additionally, the likes of the Financial Times and the Guardian are conveying to us remarks attributed to Barnier. According to an EU official, Barnier had told Frost this week that there was little point in the EU side making the trip to the UK capital if there was no sign of movement in the talks. The EU's chief negotiator is said to be "frustrated", by the lack of progress, adding that the negotiations were like "talking to people who don't care about having a deal".

On the other hand, we are told that "allies" of Johnson (whatever that means) insist there is "no drama" or any sign that talks are about to break down. But there is an expectation that the prime minister will have to intervene, with more talks with von der Leyen. No date has been set.

However, Johnson will also be conscious that his backbenchers still have the potential to cause trouble, with the European Research Group warning that it will vote against any deal "if sovereignty is not preserved".

This may not be fatal to his short-term plans if Starmer's Labour decides to support any implementing legislation, but it could have implications for his continued tenure as prime minister if he agrees a deal that makes too many concessions.

One Eurosceptic source says: "If a large body of Tory MPs branded it BRINO and voted against the Tory party [then] Boris is toast". But, he then goes on to say: "They know that and so presumably will avoid it".

This, though, is far from Johnson's only pressure point. US president-elect Joe Biden has also been in action, stressing that the border between Northern Ireland and the Republic of Ireland must remain invisible. "The idea of having a border north and south once again being closed is just not right", he says. "We've just got to keep the border open".

To add to the joy, the European Securities and Markets Authority ESMA has confirmed that EU rules will continue to apply to some UK branches of EU investment firms, putting pressure on them to move out and trade elsewhere.

On top of the frozen sausages law (completely misunderstood by the Mail), the fact that the UK still isn't listed as an approved "third country" for the live animals, foods of animal origin, and other products, and the Office of Budget Responsibility warning that a no-deal will cost a packet, Johnson has more than enough to keep him busy.

Johnson must be yearning for the simpler days of 2017, before he became prime minister, when he was able to tell the world : "There is no plan for no deal because we are going to get a great deal". But, like the man himself, that hasn't aged well.

Also published on Turbulent Times.