Brexit: Rejection

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In one sense, despite all the hue and cry, not much has changed with Brexit, even as the EU Council (October 16-17) and Benn Act (October 19) dates draw nigh. The UK’s latest proposal to the EU is so far from anything they could consider that the EU has already rejected it and even refused to have talks over the past weekend. Britain’s sherpa David Frost is set to meet with Michel Barnier’s team today, but the UK has already been told through multiple channels that it needs to present a worked-out program, with draft language (no more “non papers”) and changing its position to boot if talks are to go anywhere.

But one critical thing may have changed, albeit too late to alter the trajectory. The Government is getting “nos” it can’t ignore any more.

Barnier has repeatedly to told the Government to quit trying to go around him to heads of state. The Mail reported that Macron and Merkel both declined requests from Johnson to see them, although Macron at least took a call. That didn’t go the way Johnson wanted. Macron said the EU and UK needed to come to an agreement by Friday for the EU Council to be able to act at its meeting. Macron also told Johnson to work through Barnier. Per a spokesman:

The President told [Mr Johnson] that the negotiations should continue swiftly with Michel Barnier’s team in coming days, in order to evaluate at the end of the week whether a deal is possible that respects European Union principles.

Varadkar said specifically that this Friday is the drop dead date for coming up with a deal.

This would normal come off as quite a rebuff, except Macron was merely having to state what should have been obvious to Johnson and his Brexit team had they bothered to consider anything other than their own pet wishes. Richard North has patiently described how EU leaders need to be briefed by their sherpas before EU Council meetings, and for that, the sherpas need to receive completed documents and briefing materials days before the meeting. North’s latest words on a familiar theme:

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….

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.

In the call with Macron, Johnson tried the Burning Saddles “Back off, the sheriff really just might shoot himself” threat, that the EU should not get complacent and assume an extension was in the cards. Downing Street sources asserted the other big claim as to why the EU should knuckle under and accept his dead-on-arrival Brexit offer of last week: that Parliament would vote the current proposal through.

From the Independent:

A senior No 10 source said it would be a ”historic misunderstanding” for the EU to place its faith in the Benn Act – a backbench law designed to force Mr Johnson to delay Brexit if he has not struck a deal by 19 October…

“This is the chance to get a deal done: a deal that is backed by parliamentarians and a deal which involves compromise on all sides.”

The idea that Johnson has the votes is quite a stretch. In general, the opposition does not want to give Tories the ability to say they delivered Brexit, so there’s no reason to think they’d support any deal with the Benn Act giving them breathing room. And on top of that, I don’t see any rumors indicating that the Conservatives have been seeking to get Labour votes.

In the meantime, it really does seem that Johnson believes that if the EU were faced with a crash out, it would capitulate. He appears to be serious about wanting to defy the Benn Act, or at least having that threat look realistic. Admittedly, Brexit Secretary Steven Barclay reluctantly said on the Andrew Marr show that the Government would “comply with the law and the law as stated” while on Sky News, Housing Secretary Robert Jenrick claimed the Government had no plan if it were forced to stay in the EU past October 31.

More serious is that Attorney General Geoffrey Cox has repeatedly threatened to resign if Johnson does not send in the Benn Act letter if required. Per the Daily Mail:

According to multiple sources, Friday’s Government submission to the Court of Session followed an animated encounter between Mr Johnson and his law officers – including Mr Cox and Lord Keen, Advocate General for Scotland – on Wednesday evening.

One source said that Mr Cox and Lord Keen told the Prime Minister that, if the Government did not make clear it would not break the law, the Prime Minister would face ‘resignations’, adding: ‘Boris was absolutely furious but he had to back down.’

When the submission was made public on Friday, Mr Johnson – who has dismissed rebel legislation to request an extension as ‘the Surrender Act’ – reacted by tweeting ‘New deal or No Deal’ and insisted he would ‘Get Brexit Done’.

Johnson is so unhappy about being boxed in that the Telegraph claims Johnson will seek a Supreme Court ruling on the Benn Act. Apparently Johnson believes that him giving personal testimony would sway minds in his favor. If anything, I’d hazard it would move judicial opinion the other way. Since this gambit is certain to fail, it’s hard to see the point save to prove that he tried everything.

Another weird story came in The Times, re-reported by the non-paywalled New York Post, that Johnson won’t leave No. 10 if he loses a vote of no confidence this month. Since it’s pretty clear the opposition has no intention to vote him out till after October 31, I’m at a loss to understand why this piece was planted.

Another weird bit of noise was Brexit Secretary Stephen Barclay saying on Andrew Marr that the UK might throw the DUP under the bus by withdrawing its de facto veto over the newfangled border plan. This is only one of the problems with the proposal. The Government either doesn’t grasp or does not want to grasp that the UK leaving the EU means hard border controls somewhere. So at best Barclay is trying to seem oh so reasonable to a UK audience that is not up to speed.

Needless to say, at such a critical juncture, nowhere near enough is happening. Johnson does seem to want to break china rather than send in the Benn Act letter, but resignation still looks like a realistic outcome.

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  1. PlutoniumKun

    It’s getting very embarrassing now for the UK. I really wonder what some of those civil servants are thinking when they meet their EU counterparts with those school level essays that pass for a plan.

    I’m pretty sure the EU leaders now are pretty certain they will not get workable proposals unless BoJo panics and accepts the old Irish Sea border proposal and dumps the DUP. But even then, he is very unlikely to be able to get this past Parliament.

    I suspect that the EU already knows if, and how much time, they will offer as a final extension, but I suspect they will keep it until the very last minute as an offer to see if there is a possibility of an election. I think its more and more likely that BoJo will resign in order to try to force an election – the latest opinion polls are incredibly favorable to the Tories.

    There is I think a small chance that the EU will refuse an extension in order to see if they can panic Parliament into approving the existing deal, or one offered on a ‘take it or leave it’ basis.

    1. Ignacio

      Someone in the high spheres should notice that the political culture of perma-polling is precisely what will deliver a rather sub-optimal brexit being politicians focused too much on it and forgetting political pragmatism. Did anybody signal this failure?

      1. fajensen

        the political culture of perma-polling

        Is quite risky and possibly counterproductive considering that the shrinking part of the population that bothers with pollsters, will increasingly come to represent fringe opinions and that makes poll results into statistical outliers.

        Like Theresa Mays ‘Solid Tory Majority’ -> Likely achieved by polling people accessible on fixed landlines, with time to waste on talking to random callers, which will be older and retired people.

        Buying polls from the SoMe algorithm soup is not going to work out well either, the SoMe demography is heavily skewed in favour of ranters, spam-bots and older / retired people (seemingly often with some frontal-lobe issues that compels them to write the vilest stuff).

    2. Tom

      > There is I think a small chance that the EU will refuse an extension in order to see if they can panic Parliament into approving the existing deal, or one offered on a ‘take it or leave it’ basis.

      Does the May government’s approval of the existing WA still hold? So if Parliament were to vote to approve it, would Johnson be bound to exit with it?

      1. Peter Mott

        The WA still obtains. It has been defeated in the House three times. The present Parliament will not pass it.

  2. vlade

    Re your last para – give that he would not be asked to leave until someone else sucessfull got MPs confidence, it’s also just a bluster.

    And in case that the Parliament would vote a vote of confidence in line with FTPA, it does not matter that it would not be Johnson going to the Queen. We could see Johnson and Cummings escorted out by armed police, which on one hand would be fun to watch, on the other hand would give ammunitions to the UK’s gutter press.

    Mind you, I’d not be surprised if you were in for somehing similar in the US in 18 months time, if Trump loses the presidency and claims it’s fraud etc. and refuses to leave the White House.

    1. ambrit

      What incentive does the EU have to “do a deal” with a split government, no matter who is in charge?
      Right now, my money is on the EU “biting the bullet” and watching a full on ‘No Deal” Brexit and then laying their plans for some sort of readmission in two or three years time. England should be well and truly stuffed by then and that Christmas Turkey ready for the oven.
      Planning in all the ‘Corridors of Power’ now should be on a mid-length time line. The present fiasco looks to be insoluble. I just hope that the EU bureaucrats have read their history. A Neo-Versailles Treaty must be avoided and a New Marshall Plan – EU/UK envisioned.

      1. KiWeTO

        Re-admission would not be simple since the UK would probably not pass the new member deficit spending tests by then?

        Truly much ado about… ego

        1. Yves Smith Post author

          The EU has also made very clear that were the UK to reapply, it would have to take its place in line. I infer there are other applications in process.

  3. larry

    The Scottish Court of Sessions has apparently taken Johnson’s threats to defy the Benn Act seriously enough to consider delivering a judgement this afternoon on what penalty they would be prepared to apply should he do so, including a prison sentence. This is rather unusual. But then, Johnson is a rogue PM, itself unusual.

    1. PlutoniumKun

      I’m not a vengeful person, but the thought of Boris Johnson in a Glaswegian prison made me smile. I suspect it would make a lot of Glaswegian inmates smile too.

      1. vlade

        While it would be a great sight, the problem would still remain – he’d be still PM. Even with mandamus writ, he can say “I shan’t sign, I shan’t, I shan’t!

        So unless a) someone says who can sign b) the EU accepts they do represent the UK government *), we’re still in the muddle

        *) the EU does not want to deal with the parliaments, because then it would have to give legitimacy of dealing with regional parliaments, which would open a whole can of worms. Think Catalonia for example.

        1. PlutoniumKun

          I wonder though if that would bring the EU back to A.50(1): “… in accordance with its own constitutional requirements.”

          I’m surprised that so far nobody has tried to get the courts on board with the idea that just maybe the entire process so far is so far removed from the UK’s constitution, in particular regarding NI and Scotland, not to mention recent Parliamentary proceedings, that the entire A.50 application should be null and void. I assume the Supreme Court wouldn’t dare make that ruling, but given the extraordinary recent events, its hard to rule anything out.

          1. David

            As I read Art 50, the requirement to do with constitutional requirements relates only to the decision to leave, which I suppose would be argued to have been correctly taken. I suppose a court might decide that the proviso covered the modalities as well as the decision in principle, in which case life could get very amusing.

        2. larry

          He may not be able to exercise his functions if in prison whether he is PM or not. The court is going to inform the public tomorrow whether it can act on behalf of the PM and ask the EU for an extension if the need arises. I can only think this a possibility if Johnson defies the Benn Act and is thereby placed in prison. If he is only fined, he can still undertake his duties.

          1. vlade

            Which was rejected, entirely correctly IMO. The court cannot usurp executive, even if the executive is acting contrary to the law. It is the place of the Parliament to change such an executive.

        3. Frenchguy

          “*) the EU does not want to deal with the parliaments, because then it would have to give legitimacy of dealing with regional parliaments, which would open a whole can of worms. Think Catalonia for example.”

          Errh, what ? This doesn’t follow at all. I’m sure the EU is more than capable of making a difference between a national Parliament and any level of local administration…

          1. vlade

            The difference between dealing with legislature and executive is much larger than between a “national” parliament and a regional one.

            Once the EU accepts that a state can be represented by someone else than an executive, it can get ugly. At any time, if you have a possibility that more than one function can represent a side, and those two functiona may not need to be in sync, it can get ugly.

    2. The Rev Kev

      What would happen if the Queen decided to go for an extended stay in Balmoral Castle? Doesn’t the Prime Minister have to go to the Queen personally to dissolve Parliament for another election? That might prove to be an impasse if there is a Scottish warrant out for him.

      1. PlutoniumKun

        Apparently, corgis were originally bred for herding cattle, they nip at their heels to get them to go where they wanted. It would be fun to see BoJo and Don get past a Balmoral guard made up of a pack of angry corgis. Come to think of it, BoJo has a bit of highland cow about him, something to do with that fringe of his.

  4. PlutoniumKun

    Tangential to the article I know, but on the issue of media reporting on Brexit, I spent a couple of jet lagged hours in a hotel room 2 nights ago flicking randomly across news channels. Predictably, BBC and Sky news reporting on Brexit was terrible, filled with the sort of errors Yves is always highlighting. CNN was only marginally better, although they had a reasonably accurate segment on the British border in Ireland issue. But curiously, by far the best and most clear headed reporting was on CGTV, the English language channel of the Chinese state broadcaster. Another Chinese channel devoted what seemed an inordinate amount of time to Brexit, with lots of serious looking talking heads discussing it, but since I know about a dozen words in Mandarin, and most of them relate to ordering beer I can’t comment on its accuracy, but it did seem very comprehensive.

    I mentioned this to an acquaintance who works as an analyst for Bloomberg, he said he wasn’t surprised – the closer the journalists are to London the more pressure there is to report the ‘noise’, not the signal, not to mention the fact that the quality of journalism is now so low in the English speaking world.

    1. Eustache de Saint Pierre

      I suppose that the prime example of a foreign source for a vastly more accurate assessment of Brexit which cannot or is not easily found in the UK is of course here.

      Here in NI a couple of already hard pressed businessmen I know are having sleepless nights over the border issue, which is I suspect is only the tip of a larger iceberg. Julian Smith who has I think the thankless task of Northern Ireland secretary has hinted at the possibility of reforming Stormont in order to stop the DUP from using it’s veto & therefore it’s ability to block an all Ireland regulatory system.

      Goodness knows how things will pan out – personally I am very glad to have a Daughter who lives among the Wicklow hils in ROI where I could find refuge if needed.

    2. Colonel Smithers

      Thank you, PK.

      CCTV’s English language output is good, too.

      Your second paragraph is spot on. Journalists who I know admit to that. Some like it as it means that one does not have to do real work.

      Readers may have noticed the trailer for the BBC’s weekly Brexit podcast, live on Thursday evenings. As the quartet joke for the camera, Katya Adler mentions how one can keep up “with the latest gossip”. That comment is telling. It’s not insight, analysis or real news, just court gossip to show how well connected they are.

      And they are. For example another of the quartet, Laura (von) Kuenssberg, German and Scottish like the Queen and Trump, is married to a leading light at McKinsey, James Kelly. One of Kelly’s former colleagues, Charles Roxburgh, is number two at the UK Treasury. Roxburgh’s wife, Karen Pierce, is UK ambassador to the UN. It’s a small group of people running and reporting on the show. They have no interest in allowing us plebs into their world, hence the woeful journalism.

    3. rd

      I don’t think the Chinese have any dogs in this fight. They just need to know how it will play out to negotiate the necessary trade and travel deals. So they are probably the biggest party out there that can look at this dispassionately and realistically. Everybody else has to posture.

  5. David

    We’re treading water, and we will be for a little while yet. To vary the metaphor, we’re approaching the end of a card game in which Johnson believes that his hand is actually very strong, in spite of various people leaning over his shoulder and telling him to fold now. It’s hard to tell when the moment of truth will come, because I think it’s going to be psychological and subjective rather than simply linked to a date or an event. Johnson’s capacity for self-delusion seems to be unbounded, and it’s quite likely that, even after the EC, he will still try some dramatic stunt like flying to Berlin or Paris in the hope that he can “talk sense” into the EU. The problem is that Johnson doesn’t understand the process he’s involved in, and in that, he’s only a more extreme version of most of the Tory Party and quite a lot of the media. As Richard North says, and as a number of us have pointed out, negotiations within large organisations follow fairly strict rules and procedures, and take time and effort. Just think how angry the UK would be if other countries were doing the same thing to them. Yes, there’s always room for bilateral meetings, and a lot of deals within the EU are pre-cooked by agreement between major players. But that’s not the situation we’re in now, and anyway bilateral meetings are generally to smooth out bilateral disagreements or explore options, not to negotiate behind the backs of others.
    What we are seeing is the logical end-product of nearly half a century of lack of understanding and lack of interest by the British establishment in Europe. We simply don’t understand the rules of the game and have never really bothered to learn them. What this means, of course, is that when it all goes horribly, undeniably, wrong, the Establishment won’t be able to understand why, or what to do next. For that reason, I suspect that the behaviour of the UK government is actually going to become more and more irrational as the days past, and I wouldn’t exclude something very weird indeed happening to Johnson.

      1. Summer

        For this to have gone on as long as it has, with “no-deal” dangling, shows there’s just as much interest in a “no-deal” from another part of the establishment. I find it hard to believe they’re stomaching this much uncertainty around their great love – money – for political party puppets’ (in all the parties) gamesmanship.

    1. Colonel Smithers

      Thank you and well said, David.

      Just one thing though: “What this means, of course, is that when it all goes horribly, undeniably, wrong, the Establishment won’t be able to understand why, or what to do next.” As so many of these scoundrels have come up through the media (Johnson and Gove) or have media backers (Murdoch and the Barclay brothers) and associates (Sarah Vine / Mrs Gove), as long as they get the optics right, that may be enough to save their skins, if only for a while.

      It’s not as if they need to fear Corbyn. Corbyn can’t / won’t get stuck into the fifth columnists in his own ranks, so what can he do to the Tories, especially when the stakes are higher and there are better campaigners than May around.

    2. Mirdif

      They’re planning to ask for an extension. The ground is being prepared and all the shenanigans has been based around reducing the support base of Nigel Farage Ltd.

      He’s already decided to live in the ditch instead of die in it just as he refused to negotiate with the EU until the backstop was gone until he decided to negotiate with the EU. Just as he was going to lie down in front of the bulldozers at Heathrow until he was conveniently overseas.

    3. ChrisPacific

      I’m also getting the sense that the UK doesn’t think the EU is serious when it refers again and again to the negotiating process and the rules. To the extent that they notice at all, the British seem to dismiss it as positional negotiation, and everybody (Boris included) simply assumes that the important thing is to reach an agreement with the EU leaders and once that’s done any formalities or procedural requirements will be smoothed over or made to disappear. This includes the bit about how Barnier is their representative and negotiations need to be conducted with his team.

      I suspect part of the reason for this is that the EU has had much more practice with complex, multilateral negotiations in which there are multiple points of view that don’t break down neatly on a binary axis. In those situations, the only way to reach a collective agreement and have it stick is to first and foremost agree on the process by which you will reach agreement, and have everybody sign up to abide by it. Then once that’s done, everybody has to defend the integrity of the process with the kind of fervour Americans display on topics like freedom and the Founding Fathers, because if you don’t it all breaks down and you’re back to never being able to agree on anything, with even supposedly settled decisions constantly being re-litigated or denounced as illegitimate. (Sound familiar?) What the British think of as pettifogging bureaucracy to be swept aside is actually the foundation upon which the European project is built.

      As you say, the UK really should understand this based on 50+ years of experience. It’s chosen not to, and is now paying the price.

  6. Pinhead

    I think it would be useful to assume that there will be an extension, that it will probably be the last one, and that the EU would not recognise scrapping Article 50 unless Parliament votes to do so. So, Britain’s Constitution and common sense are aligned and Parliament must decide what it wants for the UK.

    We already know that Parliament does not want Mrs May’s deal nor does it want anything like what Mr Johnson has been proposing. There may be a latent majority for staying in the EU but too many MPs are, for now, afraid of coming out of the June 2016 closet.

    A second referndum is the only way to go forward. Ms Swinson and Mr Corbyn have to cooperate. A “national unity” government must hold a second referendum asap, commit to respecting the result and to resigning without doing anything else but enabling a General Election with Brexit no longer an issue.

    1. vlade

      The problem with the second referendum is that it, unlike GE, cannot be hold overnight. Usually it’s mentioned 18 months or so for a referendum to do all its rounds it needs to.

      In practice, it _could_ be held overnight(ish). But it would have to explicitly run roughshod over quite a lof ot established law – for example, it would have to drop Electoral Comission question testing etc. etc. It can be done. But there would be consequences (for example, the fairness, even if not legality, of the referendum could have been easily attacked).

    2. shtove

      Two objections. First, withdrawal of the Art.50 notification (scrapping Art.50) is a unilateral act of the UK executive. Second, a government of national unity requires Labour and the Tories – nothing to do with the deluded Lib Dems.

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