Brexit: the best laid plans …

17/12/2016

In the wake of this week's European Council (and "informal meeting"), it appears that the Guardian can't even agree with itself.

Its photograph (above) has a caption which states: "Michel Barnier is expected to be formally given the lead role in Brexit negotiations on behalf of the EU". The text of the report directly underneath the picture, though, declares that: "Michel Barnier was formally appointed as lead Brexit negotiator at the meeting – an outcome never really in doubt, as he has access to scores of technical staff at the European commission".

The report, of course, is wrong. Barnier hasn't been appointed. This is yet another example of the media failing to report accurately, on an issue where the entire media corps has allowed itself to be misled, and has in turn misled the public (and politicians).

Since late July last, the Commission has been running a scam, fooling the media into believing that it has appointed Michael Barnier as the lead Brexit negotiator. Even ten days ago, the Commission was keeping up the pretence - and the media has fallen for it, hook, line and sinker.

Yet, if there was some small excuse back in July for falling for the Commission propaganda, there is none now, following the informal meeting. From that, we have a statement, which makes the position clear.

After the UK has notified the European Council of its intention to leave, thereby invoking Article 50, the Council will adopt the guidelines set out in Article 218(3) of the Treaty on the Functioning of the European Union (TFEU), that define the framework for negotiations.

In that context, the European Council says it will remain "permanently seized of the matter", thereby affirming that it will stay in control of the negotiations.

As to who leads those negotiations, the statement says that the Council "will be invited to nominate the European Commission as the Union negotiator", adding that the Commission's nomination of Michel Barnier as chief negotiator "is welcome".

By that account, no one has yet been appointed as chief negotiator. Barnier has been nominated for the post, but it is by no means assured that he will get the approval of the European Council. It is perfectly possible that he is rejected, and someone else is chosen.

Whoever is appointed, the Union negotiator's team will be ready to integrate a representative of the rotating Presidency of the Council. Representatives of the President of the European Council will also be present and participate, in a supporting role, in all negotiation sessions, "alongside the European Commission representatives".

The Union negotiator, we are then informed, "will systematically report to the European Council, the Council and its preparatory bodies", making it absolutely clear that the European Council remains in control of the process.

Between the meetings of the European Council, the Council and Coreper, assisted by a dedicated Working Party with a permanent chair, will ensure that the negotiations are conducted in line with the European Council guidelines and the Council negotiating directives, and provide guidance to the Union negotiator.

On that basis, even if Michel Barnier is eventually appointed – presumably some time in April – he will be taking his orders from the Council. And the Member States will be firmly in the driving seat. If there was an attempted coup by the Commission – and many think there was – it has failed.

This means that the Barnier's recently declared plans for Brexit may be little more than unrealisable ambitions. According to Politico , he has come up with a three-step model comprising withdrawal, transition and then a "new relationship".

Little detail is offered on the "new relationship", other than a suggestion that it would be sketched out by Theresa May in her Article 50 notification letter.

As to any transitional agreement, it would be subject to a number of "sunset clauses" to prevent the UK from retaining the benefits of membership indefinitely. It is being structured in such a way that the Prime Minister will be able to say the UK has left the European Union but there will be no change for five years.

Whether that is politically tenable remains to be seen. It is difficult to see how such an arrangement can be implemented, giving the UK access to EU "membership benefits", without specific treaty change. This would involve a secession treaty, requiring unanimous ratification by all 27 remaining Member States and the UK Parliament.

Nevertheless, the outline apparently has the "broad agreement" from the remaining Member States and the European Parliament, with EP President Martin Schultz stating that this "Commission" model offers the "clarity" and would allow "a rapid conclusion of the withdrawal agreement", permitting "an orderly, and gradual move towards the new relationship".

Once more details emerge, however, there is a possibility that some Member States will have second thoughts, putting Barnier's ideas on hold.

Another major stumbling block is said to be the so-called "Brexit bill". And while the Telegraph's fake news on the issue has already been denied by No.10, it is doubtless the case that the early part of the talks will be devoted to securing a financial settlement.

In the event of a failure to reach an early agreement, the overall Article 50 settlement could be delayed to such an extent that the two-year deadline becomes unrealisable. This lends credence to the warning by the UK's EU Ambassador, Ivan Rogers, that a Brexit deal might take ten years to finalise - and could still fail.

Rogers, it would appear, is not on his own. He is backed up by Lord O'Donnell, former cabinet secretary and also Norbert Röttgen, chairman of the Bundestag foreign affairs committee. Röttgen, a close ally of Angela Merkel, says there is "simply too much" to do for a trade agreement and details of the UK-EU relationship to be completed within two years.

"A transitional arrangement is unavoidable because it is so complex and because you cannot do it in parallel", Röttgen says. "This may take perhaps five, seven, ten years. There are hundreds of thousands of pages of law you have to replace and you have 27 members with perhaps different interests".

According to The Times, he also says that the British "mercantilist" view of the EU was leading London to make miscalculations about what was possible. The belief that the car industry would lead Germany to persuade the rest of the EU to meet British demands on market access was an "illusion". "The French would not support a special deal with Britain for the sake of the German car industry", Röttgen says.

Lord O'Donnell, on the other hand, thinks that while the UK might be able "symbolically" to leave the EU by 2019, "all sorts of details will still remain to be sorted out". He says: "The idea that you can manage this carving out of a new relationship... in 18 months, let alone two years, there's not a chance, there never was a chance".

Then to add to this cascade of views, we have Stephan Mayer, home affairs spokesman for Angela Merkel's party. He believes it would be ambitious to think a trade deal could be concluded within a two-year period, a view shared by Schulz and Verhofstadt, who are saying that there may be "complexities and difficulties at times".

And now with Philip Hammond declaring that the "WTO option" would not be "the most favoured outcome" for Brexit, Mrs May's own options are being progressively closed down.

Even with the best-laid plans, it was going to be hard enough to conclude a successful Brexit agreement. But when, as we all suspect, the Government lacks any coherent plans, there is nothing to go awry. But the end result is going to be the same.