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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.
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.