Richard North, 05/09/2020  

We've been there before, in August 2017 when the media were breathlessly reporting on a "UK plan" to by-pass the Commission and open up one-on-one negotiations with Merkel and Macron.

Even (or especially) The Sun was at it, with the headline: "BREAKING THE DEADLOCK Theresa May looking to bypass Brussels and go straight to EU leaders Macron and Merkel to get talks on a post-Brexit trade deal started". With Michel Barnier and Jean-Claude Juncker refusing to budge, the paper said, "the PM is looking to deal directly with Paris and Berlin".

This was supposedly David Davis's idea, but Brussels officials were quick to to "pour water" over it. And, of course, it came to nothing, as did later attempts to deal directly, such as in February 2018 when the Telegraph was reporting: "Theresa May heads to Berlin to try and bypass Michel Barnier".

"Relations have soured with the Commission and its lead negotiator, Michel Barnier", the paper then declared, "and there are signs that even EU members are not all that pleased with how the negotiations are going".

As before, nothing ever came of it, as indeed it could not. But, in a triumph of hope over experience, here we go again with the Telegraph running an "exclusive" this time, headed: "Michel Barnier to be sidelined by EU leaders in bid to break Brexit deadlock".

The paper goes as far to say that representatives of the EU's 27 Member States expect Ursula von der Leyden, the Commission President, "to pave the way for heads of state and government to intervene in the deadlocked talks in a 16 September flagship speech".

This "flagship speech" is the annual "state of the union" speech, traditionally delivered by the Commission President, and it is quite possible that von der Leyden could be "schooled" to direct some specific comments to the UK, in the hope that her intervention might have an effect.

The story, as far as it goes, is that one [anonymous] EU diplomat has said they expected  von der Leyen to "set the scene to sideline Barnier and Frost to find a high level political solution". Then, the "troika" of Von der Leyen, Merkel (representing Germany as holder of the rotating presidency), and Charles Michel, the European Council President, "are then expected to take over the talks for Brussels".

The technical term for this, of course, is "bollocks". This is total moonshine. It isn't going to happen because it can't. Apart from anything else, diplomatic protocols would require the UK to field prime minister Johnson to handle the UK end. Heads of state, and the presidents of EU institutions do not negotiate directly with officials.

Then, generally, the "big guns" are only wheeled in to open up talks, to seal the deal or, occasionally, to break an impasse, whence they talk to their equals to achieve an understanding in principle, which the officials then finalise. Such events, however, are invariably carefully orchestrated and it is rare for such meetings to take place until heads of agreement have been carefully prepared in advance.

As it stands, none of those conditions are satisfied and, even if they were, there could be no question of the "troika" taking over the negotiations. EU deals simply do not work that way. The rules are set out in the consolidated treaty (Article 218 TFEU) where the Council has to authorise the opening of negotiations and adopt negotiating directives (the mandate) – after obtaining the consent of the European Parliament.

Then, in this case, the Commission has to submit recommendations to the Council, which then adopts a decision authorising the opening of negotiations and nominating the Union negotiator or the head of the Union's negotiating team.

On that basis, it simply isn't possible within the rules of the EU for this fabled "troika" to take over. The chief negotiator (i.e., Barnier) has been appointed by the Council. He can only be removed and replaced by another Council decision, made by QMV. But then, changes to the mandate must also be approved by the Council, and the European Parliament.

At the end of the process, of course, the Council must authorise the signing of any agreement and the proceedings must then be concluded by the Council and then approved by the Parliament. If there are any short-cuts or the agreement departs significantly (or at all) from the mandate, the Parliament may withhold approval.

For all that, however, it is likely that we will see high-level initiatives aimed at getting the EU-UK talks back on track, but we already had some of that last year when Johnson met Merkel and Macron and then went on to meet Juncker.

Quite where this fits, though, with The Times is anybody's guess. This paper has Brussels accused of "derailing talks by seeking UK law veto", with the text telling us that the European Union is demanding a potential veto on Britain’s post-Brexit laws and regulations.

The source for this is "senior government officials" and the move is described as the "single biggest stumbling block" to a deal, with Barnier said to be insisting that the government must agree not to implement any change to UK legislation that could distort trade with the bloc without first consulting Brussels.

We are told that the obligation, which the EU wants written into any trade agreement, would potentially delay the government from implementing reforms to Britain's environmental, social or state aid rules until they had been through a formal dispute resolution process. And, needless to say, Frost has "rejected the approach".

Somehow, Barnier's action – if it is being correctly characterised - does not have the feel of a man who is about to be "sidelined". Nor does the Mail help us out. It tells us: "Britain's new Cod War with the EU could sink next week's Brexit talks as fishing row pushes UK closer to No Deal".

This seems to come directly from David Frost, who says: "The EU still insists we change our positions on state aid and fisheries if there are to be substantive textual discussions on anything else. From the very beginning we have been clear about what we can accept in these areas, which are fundamental to our status as an independent country".

But then, to cap it all, we have the buffoon Johnson insisting that the UK will "prosper mightily" regardless of the outcome of the trade talks. This hardly sounds like a man on the brink of make-or-break talks – not that I heard him. These days I turn the television off when he comes on. But then, when he prattles about being "ready for any eventuality", it's the only thing to do. The man has no credibility at all.

As for the Telegraph story, it's not so much a pinch of salt we need to take with it as a sack. And next week, no doubt, as the next round of talks start, we'll need more of the same.

Also published on Turbulent Times.

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