EU Referendum

Brexit: it's a deal, Jim�


… but not as we know it. In fact, there is no deal. There are two draft documents, one a revised text on the political declaration and the other, the all-important revised text "agreed at negotiators' level" on the "Protocol on Ireland/Northern Ireland included in the Withdrawal Agreement".

It is the latter that constitutes the supposed "deal" but it has only been "agreed at negotiators' level" and – as the frontispiece states – is "subject to legal revision". This can't even be taken as the definitive document.

For this revised text to take on the formal status of a binding treaty, and thus constitute a "deal", several things must happen. Firstly, it must be ratified by the Westminster parliament, which we assume will be attempted on Saturday. It must then be formally "concluded on behalf of the Union", by the Council, acting by a qualified majority, but only "after obtaining the consent of the European Parliament" (my italics).

This is what Article 50 says. I have to admit that I had to remind myself of the text – specifically Art 50(2) – but there is no equivocation or ambiguity there. The deal has to be concluded by the Council, after the European Parliament has given its consent.

On that basis, the European Council could not "conclude" the agreement yesterday, and nor can it do so today. All it can do is what it actually has done, according to the meeting conclusions. It has "endorsed" the Agreement and invited the European Parliament and the Council "to take the necessary steps to ensure that the agreement can enter into force on 1st November 2019".

The earliest the European Parliament can meet to give its consent is some time next week and, given its own procedural requirements, that may be towards the end of the week, possibly on 24 October at the last plenary session of the month. Presumably, the Council can arrange a special meeting then formally to conclude the agreement.

It would not be wise, though, to take the European Parliament for granted. Verhofstadt has said it will "take its full time to carefully examine and approve" the deal – which is more than either the Commission or the Council has done so far. And that process, he warns, could spill past 31 October.

Verhofstadt also says that MEPs will only start work once the Westminster parliament has ratified the deal. If that slips past the plenary session next week, it could well have to be picked up in the session that begins on 13 November.

When it comes to the Council's concluding the agreement, I'd always assumed that it was the European Council that did this. But Article 50 specifically refers to the "Council", which actually means the Council of the European Union (formerly Council of Ministers). One presumes that it will be the General Affairs Committee which does the honours.

The crucial point here is that, until the Council has voted, technically there is no deal. It could be pulled at any time, and we could be back where we started. However, there is another rather important issue – the European Union (Withdrawal) (No. 2) Act 2019, better known as the Benn Act. On this, there has been much talk of it kicking in if the swamp-dwellers fail to approve the Agreement on Saturday, but there is an aspect of this Act which most people seem to be neglecting.

The particular issue is that – as expressed in popular terms - should Johnson fail to bring home a deal by 19 October, the Act imposes a duty on him to seek a three-month Art 50 extension, lasting until 31 January 2020.

Yet, while this approximation might suit the legacy media, the actual terms of the Act are subtly different, in a very important respect. The requirement is for the United Kingdom to have "concluded an agreement with the European Union under Article 50(2) of the Treaty on European Union", which is far more than has been currently achieved.

As we have seen, to conclude the Agreement requires the input of the European Parliament and the Council and, since neither have fulfilled their roles, it cannot yet be said that that the UK has concluded an agreement with the EU. Neither can that happen before Saturday.

Strictly speaking, therefore, when Johnson goes before parliament on the 19th, he will not have complied with this condition of the Benn Act. Thus, he will be legally required to make a formal application to the European Council for that three-month extension – whether parliament ratifies the deal or not.

The big question, of course, is whether any of the swamp-dwellers have read or understood the finer details of the Benn Act. On current form, that seems unlikely, in which case those who so desperately want to slow down or stop Brexit will have missed an opportunity.

Oddly enough, the SNP has already decided it will not back Johnson's deal on Saturday and has tabled an amendment to the motion approving it, calling for an immediate extension to the 31 October deadline in order to give time for a general election. Would that they knew it, they already have the means to force that extension.

Presumably, the most likely outcome of an extension would be a vote of no confidence and, given the inability of the opposition parties to front a candidate for leader of a temporary government, this would lead to a general election. Johnson would still hold the office of prime minister and be able to decide on the date of the contest.

Should that be the case, the prime minister might have very little time to play with. Sir Mark Sedwill, head of the Civil Service, is reported to have warned No 10 that going to the polls after 12 December could lead to logistical difficulties.

Predictably, when you think about it, many village halls and other locations used for polling stations will already be booked for festive events like pantomimes and parties in the weeks leading up to Christmas. To avoid clashes - with a minimum of five weeks required for an election campaign - that means an election would need to be called within the next three weeks.

Add two weeks to that, if the vote of no confidence option is triggered – the period allowed for the second vote - and that would give Johnson the very narrow window of a week. If missed, it could be February before an election could be held, with all the complications that that might entail.

In terms of the potential for electoral success, there might be significant variations in the outcome for Johnson in the different campaigning scenarios. Generally, the polls seem to suggest he might do better if he went to the country after the UK has left the EU, as against a situation where he had failed to achieve a deal and was forced to fight against a background of continued EU membership.

What hasn't been tested, though – as far as I am aware - is the scenario where he has successfully negotiated a deal, but where the three-month extension is implemented anyway, again forcing him to go to the country while we are still in the EU.

There again, one might expect a difference in public sentiment where he was forced into this position by the opposition parties and where it was brought about because the agreement had not been formally concluded – arising essentially because the negotiations had been left so late.

Either way, some might anticipate that any campaign would be fought on the content of the deal. But that would be expecting too much of the legacy media – it could not cope with anything beyond the superficial and would quickly revert to personality politics, basically on a platform of "trust". It would boil down to whether the voters trusted Johnson and his "deal", or Corbyn and his commitment to renegotiation and a referendum – in which he would oppose his own deal.

My sense is that there is a growing impatience with the continued delays, so much so that even some remainers want to see the thing finished. In this context, the deal is seen as the best and fastest way of achieving that end. And such a seductive refrain could well play into Johnson's hands, as long as the focus stays on personalities and "trust". It is a contest he could well win.

If the campaign ever got down to detail, though – however unlikely that might be - a rampant Farage might score some points, with his campaigning company seriously eroding Tory votes. The net effect of the Lib-Dems could also be to damage the Tories more than Labour, possibly leaving us with a hung parliament and no further forward.

On the other hand, a clear Johnson victory would have him ratifying his deal in an instant, taking us out of the EU as fast as is humanly possible. Then the fun would start. The one thing this deal buys is a standstill transitional period (one of Mrs May's legacies from the original Withdrawal Agreement), during which we negotiate the future relationship.

But, if the view coming through is correct – and study of the Irish Protocol over the next few days will give us a better insight – Johnson has only got so far by caving in to the EU on every substantive point. To have this man, with a five-year mandate, in charge of the next round of negotiations, almost beggars belief.

Sadly, as long as Corbyn is the leader of the opposition, the alternative is no better, which perhaps gives a serious impetus to the idea of a referendum on what will set out to be a permanent treaty. On this, the peoples' decision can hardly be worse than anything our full-time politicians would come up with.