Brexit: still anybody's guess

Tuesday 15 October 2019  

If you keep them in their comfort zones and let them focus on issues they understand – like court politics – the occasional hack can sometimes make a bit of sense. Thus we have Robert Peston delivering his opinion of the Queen's Speech debate, saying it was the maddest, most pointless event anyone alive has watched.

In his view, it was all "displacement activity" with the speakers taking refuge from the only two questions that matter, namely whether the UK is leaving the EU on 31 October (and if so how) and whether there will be a general election before Christmas. As a result, wrote Peston, the debate "has all the significance and weight of an undergraduate debate on a wet autumn afternoon".

It would be comforting to think that this put yesterday's proceedings in a class of their own but Peston's assessment could apply to the majority of debates conducted in the House of Commons. It comes as no surprise, therefore, that the level of public trust in the institution has plummeted, with 77 percent of a recent opinion poll unwilling to trust it to make the right decisions on Brexit.

That figure, incidentally, compares with 76 percent for Corbyn, and 60 percent for Johnson, indicating that we are undergoing an almost complete breakdown in trust in the ability of our politics to fix Brexit. Johnson may be the least worst, but even that means that twice as many people don't trust him as believe he is capable of doing the right thing.

And when it comes to guessing whether we will be leaving the EU on 31 October, at least we seem to be getting closer to an answer. Finland's Prime Minister, Antti Rinne – holder of the EU's rotating Council presidency – took time out yesterday to warn that things were not going well in Brexit land.

Speaking in Helsinki alongside Belgian prime minister Charles Michel, who is the next European Council president, he told reporters that there was no "practical or legal way" to find an agreement on Johnson's latest proposal, in time for the European Council on Thursday.

This, of course, is not in the least surprising. The parties are trying to combine thrashing out an agreement on an incomplete and poorly-thought-out UK proposal while, at the same time, attempting to carve out a detailed legal text covering the areas where there is some degree of accord.

Inevitably, this is slow, painstaking work – and that is without taking into account the need to have versions in all 24 of the Union's working languages. And, understandably, the EU is insisting that any draft which goes up to the European Council for approval must be "legally operable", requiring the production of a complete, watertight legal text.

Nor is Rinne on his own. Simon Coveney, the Irish deputy prime minister and self-confessed optimist, also suggested that talks might have to "move into next week". And although he did qualify his own pessimism (or realism) by venturing that it was "too early to say", the very fact that he was making such a downbeat appraisal tells us an awful lot about the status of the talks.

Barring a miracle, therefore, there is next to no chance of Johnson putting a new deal to MPs on Saturday, assuming he still goes ahead with the weekend sitting. Apparently, a motion approving the session must be tabled at the very latest by Wednesday for debate the following day – and even then the swamp-dwellers could reject the opportunity to spend extra time in Westminster, in favour of prolonged lie-ins in their constituency homes.

Assuming, as I think we must, that there will be no deal settled on Thursday, on the face of it thus requiring Johnson formally to apply for an Article 50 extension, it would seem that there will be nothing much to talk about on the Saturday. The one exception might be to reassure the House that talks will continue (which is by no means a given), with a view to crafting a deal later in the month.

By tomorrow, of course, Barnier may well have put the coffin into the ground when it comes to a Thursday finale. It would be entirely in order for him to declare to the General Affairs Council that there had been insufficient progress in the talks for him to commend a deal to the European Council, even with an additional day that Wednesday might bring.

However, if Barnier is prepared to take an optimistic view and suggest that there is a chance that a special Council, convened in the following week, could bring about a resolution, Johnson could still hold out hope of closing a deal in time for the UK's departure on 31 October.

The "colleagues" may or may not play ball on this, but I would be inclined to suggest the caution will prevail and they will go for the extension option, planning to use the special Council to agree an extension to the end of January 2020. On the other hand, they could string Johnson along with the promise of an early deal, only to bounce him into an extension when it becomes apparent that the talks have not delivered.

Even over the space of a week, though, the variables have multiplied to such an extent that predictions have become perilous. Nevertheless, there are definitely signs of movement, with the Telegraph in a buoyant mood, reporting that there is "cautious optimism" in Brussels. With talks on a knife-edge, we are told that Johnson has cancelled today's planned Cabinet meeting, to avoid leaks that could derail delicate talks.

All the same, I'm still reluctant to accept that the "colleagues" will go for the quick fix. Recent polling – of which they must be aware – suggests that delaying Brexit could cost Johnson a majority in the coming general election, as Farage's party siphons off Tory votes. But whether a hung parliament – with the remote possibility of Farage holding the balance of power – is something they want to risk, only they can tell.

But the main constraint, as I see it, is the prohibition in their own Decision on conducting negotiations on the Withdrawal Agreement during this extension period. Holding off until after the end of the month gets them off that hook, while a general election, which would cause talks to be suspended, might buy time and fresh opportunities – and the chance of a Labour government that could deliver a referendum.

It is at this point that the perils of speculation become all too evident. The Irish Times has it – along with the rest of the media – that Johnson is still adamant that Brexit will occur on 31 October and, even if he does seem boxed in, no one is prepared to bet that he doesn't have a trick or two up his sleeve. Thus, while we can assess the odds of certain plays coming to fruition, firm predictions are for the birds.

Not least, for all the media chatter, no one has actually seen a hard copy of the UK proposal – if one actually exists. And this could mean that all the earnest speculation over what the parties are discussing could be empty hype. Furthermore, with these complex issues, there can be absolutely no dispute that the devil is in the detail and the talks could so easily founder on a technical issue that no one can find a way of circumventing.

Then, of course, even if the parties manage to agree something, there is no guarantee that the swamp-dwellers will ratify. Opposition from the DUP seems to be firming up, and behind them are Unionist-supporting Conservative MPs who will vote alongside them.

It is enough, therefore, to posit that, by the end of today, we will be slightly more certain that we are not going to be seeing a deal this week. Beyond that the outcome is, as always, still anybody's guess.

Richard North 15/10/2019 link

Brexit: a dose of reality?

Monday 14 October 2019  

Following the completely predictable (and predicted) news yesterday evening, that a Brexit deal had not materialised, the legacy media is having to scale back its euphoria and admit to the difficulties which have long been apparent to more sanguine observers.

Readers here, for instance, might recall our piece conveying the comments of Bruno Bonnell, a French MP for Emmanuel Macron's En Marche! party. Of Johnson's proposal, he complained that, "It's not a final version", describing it as "almost like a joke", saying that, "We don't even understand it".

In the wake of the weekend's "intensive technical discussions", therefore, it should hardly come as a surprise to the Financial Times that it was dealing with a dog's dinner. Nevertheless, with its most recent headline declaring: "Brussels baffled by UK’s 'complex' proposals to fix Brexit deadlock", it seems to be trying to tell us something of which we were already well aware.

Nevertheless, I suppose it is vaguely helpful to have a more detailed account of Michel Barnier's brief to EU "diplomats", other than a terse press release which is so lacking in detail as almost to amount to mockery.

The only things of substance it tells us are that, "A lot of work remains to be done" and "Discussions at technical level will continue tomorrow" (Monday). Barnier is also to brief EU-27 Ministers at the General Affairs Council (Article 50) on Tuesday.

Via the FT and the other news gatherers that were present in Brussels, we are told that British plans to keep Northern Ireland in the UK's customs territory while avoiding a hard border on the island of Ireland are "fiendishly complex and not yet properly worked out", which entirely accords with Bonnell's earlier observation, but demonstrates that there has been precious little progress since last Tuesday.

It hardly comes as a shock, therefore, to have one EU diplomat making a statement of the bleedin' obvious, that there was "no breakthrough yet". He adds: "If the British government wants a solution, it must move quickly now. The clock is ticking", again a statement so obvious that it scarce merits repeating.

What is less clear is why another "European official" is saying that talks on Monday would be "one last chance". That is the last chance for the two sides to bridge their differences, or they risk failing to agree a deal in time for the European Council on Thursday.

By any account, it is already too late to meet that deadline. Normally, without the GAC giving its go-ahead, the European Council could not entertain a deal. However, the BBC has suggested that the EU team seems to have "softened" its position, indicating it is prepared to keep talking until Wednesday, the eve of the European Council.

Then we see The Times elaborate on this, reporting that the EU might back Johnson's plan in principle, even if a legal text cannot be finalised in time for the European Council, provided the UK made some concessions.

This narrative has the prime minister in office returning from Brussels with a political deal that could be put to a vote in the Commons on Saturday, with a legal agreement to be finalised afterwards. That does not make sense. The Commons is not going to vote for a "deal", sight unseen. MPs will want to see the small print.

When one sees the FT talking of "an extra summit", however, this does make sense. This paper suggests 29-30 October, but there is the matter of the European Parliament ratification. The last plenary of the month is on 23 October, which sets its own limit.

But, while Downing Street apparently had hoped the negotiators would be on a "glide path to an agreement", the Guardian is scaling back on the optimism having Barnier warning that the latest talks have been "difficult".

With a dose of realism that has been distinctly lacking of late, it goes slightly against the grain of some of the other reports, observing that it is appearing "increasingly unlikely that agreement can be found" in time for the Council later this week. However, this is not inconsistent with what other media sources are saying.

Ironically, the paper speaks of Barnier holding "a restricted session due to recent leaks", but somehow the leaks continue as we learn of the chief negotiator's disappointment at the lack of progress. This leads "EU sources" to suggest that an extension is "all but certain" given the amount of ground that needs to be covered.

Not least of that is the minor problem that the UK proposal would lead to the "dismantling of the EU's customs code", leaving the Union open to widespread fraud in the absence of hard data about whether goods end up in the Single Market or not. "We've told the UK our concerns about the Single Market and they don't have any answers to it yet", says a diplomat.

According to RTE, some of the ideas advanced by the UK - specifically a proposal to have Northern Ireland be part of the UK's customs territory, but continuing to apply the EU's rules and procedures on customs and tariffs - remain "conceptually difficult".

It is felt that the British plan would create more problems than solutions, in terms of the potential for fraud, the difficulty of tracing goods and the prospect that things would not be ready in time for the end of the transition period. Some EU officials believe that the arrangements are so complex that up to three months may be needed to thrash out all the details.

Interestingly, another leaking EU diplomat effectively confirms this, saying that: "The Northern Ireland-only backstop proposed in February 2018" (by Mrs May, as rejected by Arlene Foster) "could be landed by Thursday, but not a bespoke plan". On that basis, "a technical extension looks probable".

Such a move is also mentioned in The Times piece. It would definitely have the support of Jean-Claude Juncker, who says he would back a prolongation of UK membership. "It's up to the Brits to decide if they will ask for an extension", he told the Austrian newspaper Kurier on Sunday (paywall), "but if Boris Johnson were to ask for extra time – which probably he won't – I would consider it unhistoric to refuse such a request".

The Independent, though, reports that Johnson is "desperate for an agreement" which can be signed off before Saturday, to avoid him having to ask for a further extension. Yet the EU has told him that he must move "further and faster", even though other papers are saying that the gap is unbridgeable in the time, with the likelihood that there will be a later, special European Council.

Needless to say, the EU stance has been seen in negative terms by the Telegraph, the paper headlining its report: "Fury as EU demands more Brexit concessions". The text has a Cabinet minister "hitting out" at Brussels for ignoring the need to get parliamentary backing for any deal reached. This minister says: "What the EU needs to understand is all their very clever negotiating tactics don't mean anything if you can't get it through the House of Commons".

From this, it would appear that there is an expectation that the EU should abandon its own requirements – a process called "flexibility" - simply to assist the passage of any deal through the Westminster parliament, notwithstanding that the MPs could still reject the deal presented to them, regardless of what is agreed.

Like as not, MPs are not going to get an early chance to vote on a new deal, even if Johnson had set aside the Saturday session in the House of Commons on 19 October for precisely that reason. But if there is to be a special European Council later in the month, the timing would be ideal for framing an Article 50 extension, an application for which could then be heard in time for it to take effect before the end of the month.

That, of course, could be the ultimate in anti-climaxes. With all the hype about a deal, if all Johnson is able to do is walk away with another extension, his credibility is going to take an even bigger hit.

For the moment, though, as long as there is perceived to be the slightest chance of a deal being agreed, the hype will continue. By the end of today, we should have some better idea of where we stand which, on reflection, could be a little unfortunate for Johnson.

Wrapped up in his Queen's Speech agenda, and hoping for positive coverage in Tuesday's media, the very last thing he wants is for the EU to rain on his parade by announcing that talks have been abandoned and there is no hope of a deal being agreed at the coming session of the European Council - assuming that the talks don't continue until Wednesday.

On the other hand, one wonders what Johnson (and his advisers) really expected. Can they have imagined that throwing a complex, apparently incomplete and controversial proposal at the EU, waiting for the very last minute to do so – was going to yield dividends?

Perhaps this isn't the real play. Maybe, after the show of offering a new proposal, the game is to convince the likes of Merkel and Macron that there is no prospect of a deal, and they are better off refusing an extension, allowing the UK to cut loose.

But, if Johnson wants the cooperation of EU leaders in this ploy, then he will need to get his people to tone down the rhetoric about demanding more "concessions" and thus sabotaging the talks. The balance of advantage on blame avoidance will probably be a key factor in determining the timing of Brexit, and at the moment there is no particular incentive for the "colleagues" to allow the UK to quit by the 31 October.

So far, this just seems to be another game that Johnson is losing. The smart money looks to us still being in the EU after the end of the month.

Richard North 14/10/2019 link

Brexit: a future so opaque

Sunday 13 October 2019  

In the absence of firm information or official statements, it is extremely difficult to be certain of where we stand with the Brexit talks which are said to have continued through yesterday and are set for another long session today.

If there were first prizes for media hubris, though, the winner would undoubtedly be The Sunday Telegraph which talks of "Great Britain" being able "to exit the single market and the customs union, and to be able to diverge from all EU rules and regulations: a full, clean Brexit".

As far as Northern Ireland goes, there would be "a compromise solution" which would allow the province to take part in UK trade deals and be legally out of the customs union. Miraculously, it would maintain an open border with the Republic, alongside some form of ongoing democratic consent mechanism.

This, in the view of the ST, "would be far better practically, legally and philosophically for unionists and Brexiteers than a Northern Ireland-only backstop".

The result would not be "perfect" and, surprisingly enough, "the devil will be in the detail", where the onus is "on Mr Johnson not to stray from the principles of self-government and democratic control he so brilliantly expounded during the referendum".

The paper is in no doubt that, if the talks are evolving as we believe, the result looks to be "a real Brexit for Great Britain, with a settlement for Northern Ireland that genuinely hopes to satisfy all sides".

Needless to say, the devil always lies in the detail and while No 10 officials point out that none of the pundits know the full details of the proposed deal, the speculation of what it might contain is enough to have DUP deputy leader, Nigel Dodds fulminating that the proposed deal "cannot work".

The cause of his grief, apparently, is that Johnson is said to be ready to "shaft" the North (as in Northern Ireland), by reverting to the idea of a "wet" border in the Irish Sea. This means that there will be customs controls imposed on goods from Great Britain entering the province, in order to avoid checks on the Irish land border.

Dodds is insisting that the North should be fully within the UK's customs union, with his party refusing to accept any changes in the status of relations between Northern Ireland and the rest of the UK.

Despite recent comments from Arlene Foster (pictured with Dodds), which appeared to support Johnson's deal, the party is consistent, it says, in demanding that the UK leaves the EU as one nation and "in so doing that no barriers to trade are erected within the UK".

Assuming that the DUP's "take" on Johnson's deal is correct – and we have no means of knowing – it is relevant to ask whether the party still has sufficient political leverage to block any deal it doesn't like.

Certainly, the party itself is in a difficult position if it endorses a deal that other Unionists can cast as a "betrayal", using this to damage their electoral standing.

But, it seems, the UK government has more to worry about than the finer sensibilities of the DUP. Johnson, we are told, is "desperate" for a deal because security chiefs have convinced him that no-deal Brexit would lead to an upsurge in terrorism by dissident republican groups.

This comes from The Sunday Times, which employs another of those wondrous anonymous sources – one "familiar with the warnings" – to tell us that there was a danger of terrorist attacks in Northern Ireland and on the mainland, as well as sectarian violence in cities such as Glasgow.

We are informed of a "recent conversation" with a senior Conservative, which covered the implications of no-deal on Northern Ireland and disruption in England, when it is claimed that Johnson said: "Any one of these risks we could cope with, but taken collectively they would be a massive challenge to the UK state and no one would choose to go down that route".

Some might argue that there is a certain shallowness in that assessment, in that a solution which angers the Unionists could, of itself, trigger sectarian violence, pulling in the Republicans and triggering a full-blown replica of the Troubles. With Northern Ireland, it is never wise to take sentiment for granted.

Nevertheless, as has been pointed out, with the devil lying in the detail and no detail available, there is only so far speculation can take us. And even this may be moot as a "senior EU source" is said to be describing the chances of a deal at the European Council as "50-50", while a British government official is said to be claiming that they were "on a knife edge".

As long as the talks in Brussels go on, however, they are buying Johnson respite from the worst his critics have to offer. But all good things must come to an end and, by 5pm this evening, Barnier is due to give "EU Ambassadors" a briefing on progress so far. Saturday saw an almost unique level of security, with not a single leak escaping the talks, but Barnier will be talking to a leaky ship, and we are bound to get some intimation of where the talks stand within a matter of hours of the briefing.

The following day (Monday) Johnson will have domestic matters to attend to, as he will be attending the Queen's Speech, but he then plans to speak to Angela Merkel, Emmanuel Macron and Jean-Claude Juncker. These contacts will take place in the next two days, when we are told that Johnson's message will be: "Let's finish this off".

He is, it is said, ready to offer EU leaders "a historic grand bargain on Brexit" - help deliver "his new deal" this week or agree a no-deal Brexit for 31 October, presumably by refusing his forced application for an Article 50 extension.

It remains to be seen whether any of these players will intervene, but the likelihood is that they will take their lead from Barnier on whether to accept the deal – assuming the European Council is disposed to accept any deal at this coming meeting. It still seems far more likely that, if they feel a deal might be in the offing, the Council will offer an extension that will take us past 31 October, so that formal negotiations can take place.

However, if the "colleagues" collectively are coming to the view that Johnson's last hurrah is going nowhere, they may be disposed to consider whether to reject an extension application.

To that extent, Johnson may have queered his own pitch, in being so strident about blaming the EU for any failure to do a deal. The Council will be conscious of the potential for bad publicity in the event that they are seen to be pulling the plug. If the UK wants the Council to cast it adrift, therefore, it will need to find a formula which allows for what is, effectively seen as a "no-fault Brexit".

Yet, for Johnson, that has its own drawbacks. Given the expected adverse consequences of a no-deal, being able to blame the EU for our troubles becomes an important part of the narrative. If we part on an ostensibly amicable "no-fault" basis – with Johnson winning a subsequent general election (which looks possible), his administration will be open to taking the full blame for the trauma that follows.

This could present the prime minister in office with an unfortunate paradox. In order to exit on the 31 October with a no-deal, he is going to have to make nice with the "colleagues", yet to escape blame for the effects he needs to be at odds with the EU, conveying the impression that his "reasonable and constructive" offer has been refused.

In any event though, Johnson is hardly in control. Although he will be attempting to focus on domestic issues after the Queen's Speech on Monday, if his "new deal" is known to be dead in the water by then, he will find it hard to keep the opposition benches focused on his agenda.

Bearing in mind that, traditionally, votes against the Queen's Speech are taken as votes of confidence, the prime minister in office could find himself facing a vote that could trigger a general election on his hands, even as he wings his way to Brussels for the European Council.

It would then remain for the "colleagues" to agree to any formal application for an extension, thereby presenting Johnson with the worst of all possible scenarios when he goes to the country without having taken us out of the EU. And even if such an election is winnable, the outcome would still be uncertain.

One way or another, there is a lot riding on this week, and rarely has our immediate political future been so opaque.

Richard North 13/10/2019 link

Brexit: Russian Roulette

Saturday 12 October 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".

Richard North 12/10/2019 link

Brexit: a pathway to a possible deal?

Friday 11 October 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.

Richard North 11/10/2019 link

Brexit: marching inexorably to a no-deal

Thursday 10 October 2019  

It is perhaps indicative of the lack of empathy with, if not understanding of, the European Union that such a big deal is being made of 19 October.

This, one will recall, is the date that the swamp-dwellers have chosen for Alexander Boris de Pfeffel Johnson to apply to the European Council for an Art 50 extension in the (almost certain) event that he doesn't agree a new deal. But it is now also the date that Johnson has chosen for a special sitting of parliament, to discuss any deal agreed by the European Council or to debate an "alternative strategy if no deal can be agreed".

We are told that the parliament has only sat on a Saturday four times since it met to debate the outbreak of World War II in 1939. Other occasions were the 1982 invasion of the Falkland Islands, the Suez Crisis of 1956 and in July 1949 for summer adjournment debates.

Assuming – for want of anything better – that the Johnson intervention is just another example of his cheap showmanship, the key element of the date is the swamp-dwellers' demand that the prime minister in office send his extension application to Brussels.

The point, though, is that this is precisely the wrong date. The European Council (the only body that can entertain a request) ends the day before, on 18 October, and is not scheduled to meet again until 12-13 December. If it decided to stick to its meeting schedule, the UK would have left the EU by the time it got down to considering the request for an extension.

At the very least, therefore, the swamp-dwellers are putting the Council to the entirely unnecessary inconvenience of having to convene a special meeting, presumably some time after 19 October but before the 31st – in fact, well before that latter date as legislation will have to be passed to implement any new leaving date that is agreed.

It takes little imagination to assert that the 27 heads of state and government, who constitute the European Council (Art 50) grouping, are busy people and would wish to spend their time more productively than attend to the ongoing soap opera of Brexit, especially as their efforts are unlikely to be rewarded with anything constructive – such as a last-minute deal.

If they had got their act together – and ignored Johnson's bluster about handbagging the Council on 17 October – the MPs would have realised that the key date is not the 19th but the 15 October, when the General Affairs Council meets. The GAC will be updated by Michel Barnier and will then prepare the October European Council (Art 50) meeting.

It is then, therefore, that we will know formally whether a deal is on the cards – from whether the GAC endorses any recommendation from Barnier to proceed with a deal – the legal text of which by then should be known – or whether there is no progress to report in that respect.

As it stands, it is pretty obvious that there will not be a deal. Earlier yesterday, the Guardian reported that Brexit talks in Brussels between the EU and the UK had come to a complete halt, asserting that sources from both sides had confirmed that no further negotiations were scheduled – although Barnier and Stephen Barclay are supposed to be meeting for a working lunch today.

We also, of course, have the meeting between Johnson and Leo Varadkar today, supposedly in Liverpool. For a variety of good reasons, any chance of a breakthrough can be discounted – even supposing the parties were close to agreement, which they are not.

For sure, there was a brief frisson when The Times reported that the EU was ready to make "a major concession" by providing a mechanism for the Northern Irish Assembly to leave a new Irish backstop after a set number of years.

EU officials, though, were quick to deny any knowledge of this and, within a matter of hours had confirmed that such a proposal was not being discussed. The Times has a habit of doing this sort of thing - making up speculative stories on foundations of sand. Their half-life is usually hours, before being rebutted. One suspects the paper does so because it allows it to set the morning agenda with an "exclusive" and get a mention on the Today programme.

Anyhow, while the BBC's Brussels correspondent played down the Guardian "scoop" about the cessation of talks, saying that David Frost was slated to return to Brussels yesterday night, he did concede that "sources on both sides" had suggested that "the technical talks may have run their course".

Later in the day, we had Michel Barnier – alongside Jean-Claude Juncker – addressing the European Parliament in Brussels, telling MEPs that Brexit "creates concrete, precise and serious problems, especially in Ireland". He then went on to say, "In the face of these immediate problems, we need today, and not tomorrow, precise, operational, legally binding solutions for both parties".

Adding a non-scripted aside, he declared: "To put things very frankly though and to try and be objective, at this particular point we are not really in a position where we are able to find an agreement".

That leaves next to no chance that the Friday deadline set by Varadkar and Macron is going to be met, which in turn means that the General Affairs Council is going to have nothing to work on the following Tuesday, and Barnier will not be able to recommend a deal for adoption by the European Council.

Nor can we take anything from Juncker's input to the European Parliament. Speaking before Barnier, in a rather sour intervention, he declared that "we remain in discussion with the United Kingdom on the terms of its departure". "Personally", he did not "exclude a deal" and reiterated that he and Barnier were "working on a deal". But, he said, "we are not accepting this blame game in London. We are not to be blamed!"

All of that, individually and collectively, should have Westminster MPs focusing on the outcome of the GAC on the coming Tuesday, which will give them the cue to act. The logic would have been for them to instruct Johnson to make his application to the European Council on the 16th, giving it time to consider its position and come up with a decision before the heads of state and government disperse on the Friday.

However, the die is cast and doubtless – in the manner of The Times - 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.

None of these will come to pass, although that does not rule out the possibility of some surprises, with one or other of the parties pulling a plump rabbit out of the hat. There is talk, for instance of Johnson staging a dramatic walk-out during the European Council, something which Brussels is marking down as a strategy to "fabricate a crisis".

One wonders though, whether anyone even cares. An EU diplomat says: "You can hit your fists on the table but in the end only the fist will hurt". He adds: "If they [the UK team] want to walk out, they can walk out but if they want a deal they will have to come back to the table".

Certainly, Juncker at the European Parliament yesterday didn't give the impression of a man who would be devastated if a deal wasn't struck, and Johnson already seems to have his election strategy worked out, which discounts the possibility of a deal.

Earlier yesterday, he was said to have promised centrist Conservative MPs he will not go into an election arguing for a no-deal Brexit, thereby not including such a commitment in the party manifesto. But no sooner had this been aired, than we were seeing denials, with a "senior government official" saying that no manifesto had yet been agreed.

Even then, a promise that no-deal wouldn't be the "main aim" of government policy does not rule out it being a fallback. We could expect the usual mantra, with the government committed to a getting a deal, but preparing to leave without one, if a deal could not be agreed.

Either way, and especially after the alarums of Tuesday, we seem to be marching inexorably to a no-deal. So far has sentiment reversed – from the Johnson bluster of a "one in a million" chance of a no-deal – that the only real surprise would be an agreement on a deal. But the chances of turning water into wine might be greater.

Richard North 10/10/2019 link

Brexit: the day the deal died

Wednesday 9 October 2019  

For all the excitement of yesterday, the day appeared to finish on a positive note, with a 40-minute telephone conversation between Alexander Boris de Pfeffel Johnson and Irish premier Leo Varadkar. That brought the promise of a meeting later in the week, suggesting that there is still the possibility of a last-minute deal.

The Irish Times, however, is not convinced. Although it agrees that one reason could be that it is simply too early to throw in the towel on the current round of talks, it could be that neither side is willing to concede victory in the blame game. Nobody wishes to be the first to pull the plug on the talks.

One might recall, though, that it was Varadkar who warned that, if there was to be an agreement on Johnson's proposal, a "realistic deadline" for the production of a final draft was Friday 11 October, to allow it to be assessed by Member States ahead of the European Council on 17-18 October.

If Varadkar is as good as his word – bearing in mind that Macron has also set a Friday deadline – then a further meeting is hardly going to achieve anything. It will be too late for Johnson to submit another proposal and, without that, the talks are going nowhere.

We are, therefore, effectively back to the start of yesterday with the telephone call between Johnson and Angela Merkel. But any analysis of this must take account of one salient fact: there is no official account of the conversation from Merkel and everything we know of what transpired comes either from "Downing Street sources" or the issue-illiterate media.

The most complete account of the conversation is probably this, which tells us that "the call with Merkel showed that the EU has adopted a new position". The account continues:
She made clear a deal is overwhelmingly unlikely and she thinks the EU has a veto on us leaving the Customs Union. Merkel said that if Germany wanted to leave the EU they could do it no problem but the UK cannot leave without leaving Northern Ireland in a customs union and in full alignment forever. She says that Ireland is the government's special problem and Ireland must at least have a veto on Northern Ireland leaving. Merkel said that the PM should tell Northern Ireland that it must stay in full alignment forever, but that even this would not eliminate customs issues.
And thus it goes on:
It was a very useful clarifying moment in all sorts of ways. If this represents a new established position, then it means a deal is essentially impossible not just now but ever. It also made it clear that they are willing to torpedo the Good Friday Agreement.
The news broke with, amongst others, the implausible Laura Kuenssberg retailing the improbable claim that Merkel had said that there "could only be a deal if Northern Ireland stays in Customs Union", something which is legally and practically impossible.

Northern Ireland cannot stay in the EU's customs union. When the UK leaves the EU, it automatically drops out. For the province to be in a customs union with the EU after Brexit, the UK must conclude a new treaty with the EU to create a brand new EU-NI customs union.

Here, the nearest comparison is Turkey. It is not in the EU's customs union - it has concluded its own separate customs union treaty with the EU. This underlines the simple premise that it is not possible for any state to be in the EU's customs union without also being in the EU.

This type of regime allows for trade deals with other third countries. If there is a differential on external tariffs, then goods imported and then re-exported to EU states require the difference to be paid.

Despite the obvious issue-illiteracy of the reports, however, the stakes were massively raised by the terse response of European Council president Donald Tusk. Addressing Johnson directly, he declared:
What's at stake is not winning some stupid blame game. At stake is the future of Europe and the UK as well as the security and interests of our people. You don't want a deal, you don't want an extension, you don't want to revoke, quo vadis?
Ireland's Simon Coveney quickly chipped in, saying:
Hard to disagree - reflects the frustration across EU and the enormity of what’s at stake for us all. We remain open to finalize a fair #Brexit deal but need a UK Govt willing to work with EU to get it done.
Yet, despite Tusk's comments, the news evoked a huffy response from Commission spokesman Pablo Pérez. He said, "Under no circumstances will we accept that the EU wants to do harm to the Good Friday Agreement. The purpose of our work is to protect it in all its dimensions", then adding: "The EU position has not changed: we want a deal. We are working for a deal".

Further doubts about the authenticity of the Downing Street source's account began to emerge with an intervention from Bruno Waterfield. He noted that, "Veteran diplomats and Brexit negotiators here don't recognise the Downing account of Merkel call", recording that: "[the] view is that a very difficult call has been misinterpreted or exaggerated because [the] Johnson offer on regulatory alignment (seen as positive) has been knocked back".

And then, while Angela Merkel maintained a dignified silence, her close associate, Norbert Röttgen intervened with a blunt statement: "There is no new German position on Brexit", he tweeted. With no attempt to sugar the pill, he added: "Frankly a deal on the basis of Johnson’s proposals [by] 31 Oct has been unrealistic from the beginning and yet the EU has been willing to engage. Blaming others for the current situation is not fair play!"

The picture, though, only begins to clear when we take account of an e-mail from an unnamed Downing Street source the previous day, rumoured to be from Cummings.

Putting together the clues, the indications are that an audacious Downing Street strategy is being played out. The aim, it would seem, is to sabotage the talks while transferring the blame to the EU for the failure to reach a deal. The timing is such that marking down the prospects of a deal as "essentially impossible" early in the week relieves Johnson of the need to meet the Varadkar/Macron deadline.

With the talks generally acknowledged as "dead", the play now revolves around the willingness of the European Council to offer an Article 50 time extension.

As it stands, Johnson must apply for an extension if he cannot come up with a deal. Smart money has him leading his party into a general election, which surely must soon come. He will fight on a no-deal platform, blaming parliament and the EU – and anyone else he can think of – for the deal not materialising, and for being forced to apply for an extension.

The "not my fault, guv" ploy might just win him the election, as long as Lib-Dem and Farage Party votes do not erode his support and give the game to Labour. And, once elected for a full term, Johnson's first action will be to take us out of the EU without a deal.

That much, of course, is speculation but it is not untoward to suggest that yesterday we saw history made. Certainly, the Mail is in no doubt, describing it as "the day the Brexit deal died". And its assassin was Alexander Boris de Pfeffel Johnson.

Richard North 09/10/2019 link

Brexit: confusion

Tuesday 8 October 2019  

I do wish the media would avoid the trap of describing Johnson's proposal as keeping Northern Ireland inside the Single Market for goods (and electricity). Regulatory alignment – or even a common regulatory area – does not constitute membership of the Single Market; nor does it guarantee so-called frictionless movement of goods across the border.

An easy cross-check is to look at the Swiss situation, where its trade deals with the EU require it to adopt the relevant elements of the Single Market acquis yet, by no measure can it be said that the borders between Switzerland and the adjoining EU Member States are frictionless.

Not only do we have the Financial Times falling into the trap, we also have the Guardian doing it, illustrating the shallow grasp the legacy media has of the technicalities of Brexit.

Nevertheless, the paper does do us a favour, featuring the EU's "point-by-point" rejection of Johnson's proposal, on the same day that the prime minister in office complained that the EU had not yet explained in detail what its objections were. Apparently, these were handed to David Frost last Friday, so Johnson has had plenty of time to look at them.

As an aside, we have the Mirror reporting on urgent questions in the House of Commons, where the parliamentary under-secretary of state for DexEu, James Duddridge, was challenged as to whether he had even seen, much less read, Johnson's proposal, whence he refused to confirm "which documents I have and have not seen".

That makes me wonder whether Johnson himself has read his own proposal. At 44 pages, it might be a little long for a man who is not famed for his attention to detail, in which case reading the Commission's critique might not have been too helpful, even if he had taken time out to read it. Perhaps if he spent a little less time touring NHS hospitals, he might have time to do his day job.

Anyhow, when it comes to the Guardian revelation of the EU's reservations, we are offered nine items compiled by the Commission after a briefing of EU diplomats.

Head of the list – which is not necessarily in order of importance – is the so-called "Stormont lock", with the Commission concerned that this provides the DUP with an opportunity to block the all-Ireland regulatory zone from ever materialising.

Next, the proposals for a customs border are said to risk a major disruption of the all-Ireland economy. EU negotiators have pointed out that it has been rejected by groups representing Northern Irish business.

Then the Commission is concerned that the UK is seeking a fallback of no controls, checks and border infrastructure, even if the DUP vetoes Northern Ireland's alignment with the Single Market. This, the Commission fears, would leave the Single Market "wide open for abuse".

Item four complains that the UK wants to leave it to a joint EU-UK committee to work out how to avoid customs checks and infrastructure near the Irish border once there are two customs territories and sets of rules on the island of Ireland, without offering a plan B if no such solution is agreed.

Five is an objection to the UK's call for reform of the common transit convention so as to avoid the need for new infrastructure in the shape of transit offices on either side of the border, for the scanning of goods that have passed through multiple territories. Brussels has refused this as it would lead other non-EU countries to seek similar exemptions, endangering the internal market.

Six identifies what is seen as an unacceptable wholesale exemption for small and medium-sized businesses from customs duties and processes, and complains that the proposal fails to provide details on how to combat smuggling.

Interestingly, the next item brings up the matter of VAT – about which we hear so little – whence British negotiators have been told that the proposal fails to offer any solutions as to how to avoid payments and checks at the border.

The penultimate item refers to the condition on state aid and level-playing-field conditions which Theresa May agreed to in order to reassure the EU that Northern Ireland businesses would not enjoy a competitive advantage. These have been deleted.

And finally, the Commission is worried that the UK would have access to an unlisted number of EU databases to allow it to police the customs border on the island of Ireland and the regulatory border between Great Britain and Northern Ireland, maintaining such access "even if the DUP vetoed alignment with the Single Market".

To my mind, the complaints are a little on the thin side, as the Commission could have made much more about the need to implement border controls, but then it might not have wanted to frighten the horse – or the Irish.

But then, again via the Guardian we have an account of a radio interview of Bruno Bonnell, a French MP for Emmanuel Macron's En Marche! party.

Of Johnson's proposal, he complained that, "It's not a final version", describing it as "almost like a joke", saying that, "We don't even understand it". In Bonnell's view, it was "not a genuine offer" and is, "clearly a political manipulation to put the responsibility of a no-deal Brexit on the EU's side".

In particular, Bonnell objected to Johnson suggesting "a very complex process, and even more complicated than what is proposed by the backstop", yet making it "a last-minute proposal", as if he wanted to force the issue and put the responsibility of a no-deal Brexit onto the EU's shoulders. Yet, Bonnell reminded us, Johnson "is the one who refused the deal that was in place, that was proposed, that was negotiated".

The key points made here are that the proposal is "not a final version" and that its readers "don't even understand it". Neither surprises me, and this may explain why the government is so reluctant to publish the full text. Bearing in mind none of us have seen it (including MPs), we can only assume the worst.

Supposing, as Bonnell seems to indicate, that this proposal is an incoherent mess, we are even further away from a resolution than we first thought – and we've never been optimistic. But with even Macron demanding that Johnson puts the proposal to bed by Friday, the chances of a deal are receding at warp speed.

Nonetheless, confusion reigns. We are told that the EU has "flatly rejected" the UK's suggestion that Northern Ireland exit the customs union. That, we are led to believe, "would necessitate customs checks on the island of Ireland", even though the UK government insists they could take place away from the border.

Actually, leaving the customs union would not necessitate border checks and it is certainly not the case that the Withdrawal Agreement requires Northern Ireland to remain in it. In the Agreement, there are only two specific references to the customs union – one in the recital to the Irish protocol, which requires:
… maintaining full alignment with those rules of the Union's internal market and the customs union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement, to apply unless and until an alternative arrangement implementing another scenario is agreed.
The second reference is also in the recital, stating that, "the rights and obligations of Ireland under the rules of the Union's internal market and customs union must be fully respected".

Noting that it is possible to maintain full alignment with the rules of the internal market without actually being part of it, the same must apply to the customs union. If Northern Ireland applied the EU's schedule of tariffs to third country trade, and adopted the relevant provisions of the Union Custom Code (UCC), it would be covered. Outside the EU, it cannot of course be a member of the EU's customs union.

Perversely, this would have been so much easier had the UK adopted the Efta/EEA option (with additional protocols), but now it is in a mess that even seems to be taxing the comprehension skills of the "colleagues".

I guess that with the speed of developments, Johnson's proposal is being handled at a political level, without the Commission lawyers getting a chance to fillet the document. If it was really given a thorough legal evaluation, it is possible that we could see many more problems raised.

From the Guardian, though, we learn that Johnson's spokesman is saying that the government was determined "not to budge" on the customs union issue. We are thus told:
The PM set out in his letter that this provided a broad landing zone, and we were willing to engage in further discussions on our proposals. But if your question is are we prepared for Northern Ireland to be in a different customs territory to the UK, the answer is a very firm no.
Here again, there is a confusion of terms. The customs territory does not define the customs union. For sure, the customs union applies within the EU's customs territory, but there is much more to the territory than just the customs union. And then, the UCC defines the territory, as well as setting out the detailed rules for the customs union and the internal market.

We get this also from Barnier's speech in April last year, where he says that "the backstop is needed in order to respect the integrity of the Single Market and the EU's Customs Union".

"Some people", he says, "think that we could have two different sets of rules on the island of Ireland and still avoid border checks. But Ireland is a member of the EU - and a proud member, I add. It is an active player, active, very active player, in the Single Market".

Thus says Barnier, "Goods that enter Ireland also enter the Single Market. It is called the 'Single' Market for a reason. So, since we all agree that we do not want a border, and since the UK agreed to respect Ireland's place in the Single Market, then that means goods entering Northern Ireland must comply with the rules of the Single Market and the Union Customs Code".

There we have it. No talk of being in the customs union, nor even the Single Market. Complying with the rules (all of them, to "ecosystem" level) is what counts.

Thus, when Bonnell talks about not understanding Johnson's proposal, I'm not sure I do either, especially with the handicap of not seeing the full document. The Withdrawal Agreement was legally coherent. The indications are that the Johnson proposal isn't. We really do need to see it, if we're to have any chance of finding out where we stand.

Without that, there is just confusion.

Richard North 08/10/2019 link

Brexit: the myth of seamless borders

Monday 7 October 2019  

It is at a time like this that one realises just how awful Andrew Marr really is. The time in question was yesterday, when he interviewed the Latvian prime minister, Krisjanis Karins, to very little effect, missing an important opportunity.

The point is that Latvia and the Republic of Ireland - once the UK has left the EU (assuming this happens) - will have something very specific in common. Both will have land borders with third countries. In the case of Latvia, to be pedantic, it currently shares borders with two third countries, Russia and Belarus. The Republic of Ireland will, of course, share with but one, Northern Ireland – an integral part of the United Kingdom.

Given the potential commonality, one would have thought that Marr might have asked Karins to explain what was involved maintaining the frontier for the Single Market at the interface with a third country - such as the one with Russia. He might have then told Marr that land access was managed by prohibiting crossing at any place, other than via one of the seven official border crossings – five road crossings and two for rail – along the 214 kilometre border.

These border crossings are quite substantial affairs (the crossing on the road E262/A13/A116 near Karsava and Grebneva is illustrated, courtesy of Google maps) but the amount of commercial traffic handled is relatively low. Through some of the posts, the number of trucks crossing in 24 hours might be less than 100 while even the busiest handles less than 500. Yet, despite that, waiting times can be as long as nine hours, even if most trucks pass straight through without delay or wait for only a few hours.

Latvia's experience meshes with virtually every other land border between EU territories and third countries. Neighbouring Lithuania has had its problems while the crossings from Poland into Belarus can take more than two hours. Coming back in to Poland can take longer, with queues of 400 trucks being reported.

Truckers coming in from Turkey have an even unhappier experience, with waiting times for trucks running to 30 hours, with tailbacks running to 15 miles.

What Karins might have also told Marr is that, in no instance, are border crossings managed without infrastructure and physical border posts. Even on the 1,600 kilometre Norway/Sweden border, where customs officers on both sides share powers, mobile patrols and surveillance cameras do not remove the need for border posts.

It's a pretty good bet, therefore, that had Marr asked Karins for his opinion on the practicalities of having an invisible, infrastructure-free border, the answer might have been less than encouraging for the UK negotiators.

The Latvian prime minister might have replied that, since there were manned customs posts on every single land border shared by EU Member States and third countries, it would be hard to envisage a situation where there could ever be total reliance on unmanned borders.

Nor would Karins have needed to rely on his own country's experience, or the examples we've already cited. Less than a year ago, the Irish Times was reporting on the Poland-Ukraine frontier, saying that the idea of a frictionless border was "a joke".

The paper cites border official Cdr Robert Brychlik, at Dorohusk, Poland's busiest crossing with Ukraine, four hours southeast of Warsaw. Asked whether an outer EU border can ever be frictionless or invisible, he says: "There is no way this is possible, because there is no technology in the world that can prevent queues".

"Technical devices", he says, "help us optimise and shorten waiting times, but cannot solve them entirely. There is no getting away from the human element". And, while the target is to process private traffic in two minutes, trucks can be queuing for two or three days.

Talk of seamless borders, a senior official says, comes from people who don't understand why the EU has closed external borders. But they are closed so that other EU borders can remain open.

However, Latvia has something a little extra when it comes to the border with Russia. In March – just when the UK was supposed to be leaving the EU – contractors finished construction of 93 kilometres of barbed-wire topped fencing between Russia and Latvia.

The project also provided for building wooden footbridges, patrol paths, culverts and a footprint strip extending 207 kilometres, in addition to the 2.7 metre high fence, at a cost of €21 million. A further 100 km of fencing is being considered, at a further cost of €5.6 million, with plans eventually to fence off the whole border.

This, of course, is not the only fencing project on the EU's borders. Hungary has been a particularly enthusiastic fence builder, erecting barriers on long sections on the border with Serbia and Croatia. Their efforts have reduced migrants to a mere 15 a day, a daily reduction of more than 4,500 from the 2015 peak.

With the whole of Ireland being designated as a Common Travel Area (CTA), one cannot see immigration being a major cross-border issue, although security requirements and the need to limit smuggling may eventually demand some physical barriers. The spectre of a barbed-wire fence along the Irish border is hauntingly real.

Yet all of this passes Andrew Marr by. The best he has to offer by way of a question to the Latvian prime minister is a request for an explanation "in simple terms", why the EU is so against customs checks in other parts, away from the border of Ireland.

Karins tells us "it's a question of the single market". In Europe, from Latvia, he says, we're on the far eastern side of Europe, through Ireland far on the western end of Europe. We don’t have any checks or controls between our countries and certainly after Brexit it's important that there are no checks and controls between Ireland and the rest of Europe.

"I understand", Karins continues, "that for the British government there is a wish not to have a customs union, yet also to have open borders". He says: "We're all for open borders but at some level, just imagine from the European side if there are goods say coming from the UK, moving through Northern Ireland to Ireland into the EU that are somehow not adhering to shall we say the EU rules of the game, then that could be a problem in terms of the integrity of the single market".

This is actually largely unhelpful as Karins seems to be eliding the customs union and the Single Market, so the answer cries out for clarification and, maybe, an illustration of the system in place on Latvia's external borders.

But that is something we don't get. All Marr is interested in is Karins's views on the chances of a deal in the next couple of weeks. As to whether the EU is likely to go further – Marr's next line – he is content with being told that, to get a big change in view among 27 member states, "would be very, very difficult". Why it would be difficult, we never get to know.

The fact remains, though, that if the UK wants to deviate from full conformity with the EU's trade regulation, and stand outside the Single Market, the price to pay is border checks.

And since no Member State is prepared to remove physical border posts, or accept that it is reasonable to do so, Johnson's administration has an uphill battle trying to convince the EU that there should be no checks at the Irish border. As long as the UK continues to insist that this should be the case, the possibility of a deal seems remote.

Richard North 07/10/2019 link

Brexit: round in circles

Sunday 6 October 2019  

One of the more interesting comments to emerge this weekend comes from Leo Varadkar. He says that, if there is to be an agreement on Johnson's proposal, a "realistic deadline" for the production of a final draft is next Friday – 11 October - to allow it to be assessed by Member States ahead of the European Council on 17-18 October.

While the general UK media chatter is focused on 19 October – for no other reason than it is the date set in the Benn Act – this is indeed the "realistic deadline" for any deal. The 27 Member States need to look at a final draft, in advance of the General Affairs Council on 15 October, when the decision will be made to forward it to the European Council (with the appropriate recommendations).

Without the preliminary stages, the European Council won't even consider a draft which means that unless a final legal draft can be agreed by the end of business on the Thursday, there is very little chance of a deal being agreed by the coming session of the European Council. For one to be agreed by 31 October, there would have to be a special Council called, which might be difficult to arrange.

With the talks only re-starting on Monday, that effectively gives David Frost and his team only four working days to come up with a draft that is considered to be an acceptable basis for discussion, and then negotiate any changes. These, obviously, will have to be cleared with Downing Street and then the draft will have to be approved by Barnier before being translated into the EU's 24 official languages and then forwarded to the Member States.

Some of the Member States are required by their constitutions – or conventions – to consult with their own parliaments – or, at least, the party leaders – adding more time to the process. Some insist on responding to communications from Brussels in their own languages, making it a point of principle to do so. That adds an extra time constraint, before the papers can be delivered to the General Affairs Council.

Since these are procedural steps, it is only with very great difficulty that short-cuts can be taken, and to attempt to do so is not without risk. If Member States feel they are being excluded from the process, or their views taken for granted, their ambassadors may be instructed to block progress at the General Affairs Council, just to make a point.

Unsurprisingly, therefore, it was an extremely cautious Michel Barnier who addressed an event in Paris yesterday, sponsored by the French Le Monde newspaper, with input from the Guardian, telling the audience that when he was mandated by the European Commission to negotiate Brexit with the British government, he "imagined it would be very complicated, and I was not disappointed".

Making his position clear on the current proposal, he said that, if the Johnson government does not "come back with new proposals on two serious problems that we have reported to them, I do not see how we could move forward".

The problems in question are the return of customs controls between Northern Ireland and the Republic of Ireland, and the right of veto over the agreement London wants to grant to Northern Ireland. "We must preserve the unity of the island [the Good Friday peace agreements exclude the return of a physical border between the two Irelands], but also protect the integrity of the single European market", Barnier said.

Asked for his response if the negotiations failed again, Barnier said that "these negotiations have been lose-lose since the beginning". He added: "We are ready for a no-deal, even if we do not want it", reaffirming that, "The no-deal will never be the choice of the EU, if that happens, it would be the choice of the United Kingdom".

Interestingly, he then made an observation on an issue which perhaps isn't given enough prominence, especially in the context of Johnson's vacuous "get Brexit done" slogan. The discussions will not end anyway, he said: "Agreement or not, this is not the end of the story. The whole future relationship with the United Kingdom remains to be defined".

Ominously, the Le Monde report concluded with Barnier saying that trading is "as important for Europe" as it is for the UK, then remarking: "With the way the world is evolving, the European countries, individually, will not be at the tables of the big countries in 2050".

"If we want to be respected, to participate in the new world order", he added, "we have to be around the table". And to achieve this, the only way "is to be together as twenty-seven". And it was this that had Le Monde remark that "Brexit has definitely not shaken the European project".

Nevertheless, Barnier takes a positive view about wanting a deal with the UK and says, "For me the most important is the long-term reconstruction of the relationship with a country that will remain our partner, our friend and our ally". It isn't all doom and gloom.

Although a participant in the conference, the Guardian's "take" has a somewhat different emphasis, articulated in today's Observer.

This report opens with Barnier saying that Johnson’s government will have to bear full responsibility for a no-deal Brexit, "as more than three years of talks between the UK and Brussels appeared on the brink of collapse last night", characterising Barnier's comments as having the appearance of "the opening shots in a blame game as both sides sense failure".

This is not a wholly inaccurate view. The noises coming out of Downing Street are not encouraging, with the "Second" Cummings declaring, as late as Friday evening, that if Brussels did not soften its opposition to the UK's proposals, the UK would be ready to leave with no deal.

Barnier, though, is unequivocal, telling Guardian journalists that there were serious problems with Johnson's proposal. It threatened the EU Single Market and did not answer EU concerns on the need for customs checks: "We are a Single Market", he said. "That's a complete ecosystem, with common rights, common norms, common standards, common rules, a common legal system. It requires checks at its borders".

This is the first time for a while that Barnier has talked about the Single Market "ecosystem", and if he is to be faulted for anything, one might suggest that he does not give it enough emphasis. Certainly, the concept does not seem to have penetrated the minds of Johnson and his team, who still talk of regulatory conformity as the be all and end all of Single Market access.

Whatever passed in Paris, though, sentiment cannot be improved by the lead headline in The Sunday Telegraph, which declares: "Boris Johnson to sabotage EU if forced to delay Brexit".

The report talks of Johnson vetoing the EU's Multi-annual financial framework (MFF) – where the talks are effectively conducted on an intergovernmental basis - and sending a "Eurosceptic" commissioner to Brussels to "disrupt" the Commission's workings. In the latter event, the Nigel Farage has been named.

In reality, neither ploy might have much effect. Procedurally, there are ways of by-passing the MFF when it comes to framing annual budgets. Interference, while irritating the "colleagues", would have little practical effect. As to planting Farage in the Commission, perhaps Downing Street hasn't realised that nominees must be "adopted" by the Council and the European Parliament must approve them.

Thus, while Steve Baker, former Brexit minister, compares this to shooting "a nuclear weapon into the heart of the asteroid", he is talking crap as he so often does. His comments are almost as bizarre as David Cameron's, who told an audience at the Cheltenham Literature Festival on Saturday that the Johnson had a "good chance" of securing a deal.

By way of contrast, Barnier talks of having found "solutions" to Brexit last November, with Theresa May. "We worked, seriously, methodically, together with her government", he says, and now there is Boris Johnson "questioning a very important part of that agreement".

Johnson, he warns, must realise that "a deal is between two parties". Britain cannot demand concessions the EU cannot make, as the argument goes round in circles.

Richard North 06/10/2019 link

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