The Prime Minister set a deadline for the Brexit talks of 15 October – this week’s European Council. That is when he said he will decide whether a deal is nigh or to pull the plug, prepare for no deal, and hope for some further talks on mini-deals.
Johnson is right that the European Council will be the first time that EU leaders collectively have thought about Brexit since they gave Michel Barnier his negotiating mandate before they all became preoccupied with Covid-19. So far they have assumed that the negotiations would take as their starting place the Political Declaration they signed this time last year.
Now they have to get to grips with the fact that the UK Government regarded that document as a necessary but inconvenient formality to get through the process of taking the UK out of the EU, but since their new electoral mandate in December have sought a rather different form of Brexit.
There will be a discussion of the prospects of a deal. The communique may contain more bland language maintaining the EU’s commitment to a deal but stressing the need to resolve the big outstanding issues – level playing field, governance and fish – and urge member states to ensure their preparations are in a good state (the Commission thinks governments are prepared, businesses, as here, may be less so).
There is the potential for some fireworks – around the UK’s bad faith in pursuing its Internal Market Bill, or over the need to protect EU historic fishing rights – or some other issue that might emerge at the eleventh hour.
The best result for Johnson would be if the summit urges more intensification, orders Barnier’s submarine to ‘dive, dive’.
The real risk from the summit is not that it unlocks the route to a deal but that one or more member states dig in and make Barnier’s task harder.
The UK has always had a naïve faith that political leaders will see the woods for the trees, without recognising it is, in many ways, easier for the Commissioners, with the benefits of their ‘unelected’ status who are freer to do that.
Will Johnson then pull the no deal trigger? Unless the summit veers madly off course, that looks unlikely. His last semi-deadline was July, and earlier Frost had said end-September.
The Prime Minister emerged from his summit with Ursula von der Leyen and Charles Michel saying he saw no reason not to wrap up a deal by then, after putting a tiger in the tank. But the tiger turned out to be a sloth and the talks meandered through the summer.
It is only in recent weeks, since the end of the ninth formal negotiating round, that there have been real signs of the sides moving. That was signalled last week by Lord Frost in two select committee appearances, and by Michel Barnier.
If there were more focus in the UK on Brexit, there could be political pressure from the backbenches on the PM to make good his threat.
But the Government is already showing signs of panic about the unsurprising state of unreadiness of British business. Two weeks ago Michael Gove, the minister in charge of Brexit preparations, unveiled his ‘reasonable worst case scenario’ and introduced the brave new world of Kent Access Permits.
That was in the light of research that suggested over 40% of businesses expected another extension – last year’s lesson was to ignore Government and expect an extension.
A new communications campaign has been launched to convey the need to prepare more starkly than the ‘check, change, go’ campaign managed with its emphasis on the new opportunities rather than the new red tape.
This week, Business Secretary Alok Sharma has issued an ‘urgent message’ to business on the need to prepare, deal or no deal. The Government may be banking on a deal opening the way either to informal ‘pragmatism’ or more formal ‘phasing’ to alleviate the risk of new year disruption.
Then Cabinet Office minister Lord Agnew, giving evidence to the Treasury Select Committee, admitted that the border operating model for Northern Ireland was not yet ready – but also riled business by accusing them of having a “head in the sand” attitude when it comes to the need to prepare.
But deadlines there are. Michel Barnier originally said that a deal needed to be concluded by the end of October, to give the European Parliament time to scrutinise and approve. That is not a formality.
The EP has said it will not ratify if the UK has failed to remove the offending law-breaking clauses from the Internal Market Bill (it is possible they may have been removed for them by the Lords before the bill returns to the Commons).
It is likely that the sort of deal now in prospect will not require ratification by national parliaments as well – but even so the EU negotiators do not want to rush their parliament. The UK Government also seems to think it will need primary legislation to put some aspects of the agreement into UK law – but as long as it can keep its backbenchers on board that can be done very quickly.
EU negotiators suggest no later than the first few days of November. Others think it could slip a few more weeks, even into early December.
But with no Article 50-like extension procedure available, there is one absolute deadline – the UK exits transition on 31 December – unless both sides decide they need just a bit more time and the EU lawyers conjure up some as yet unthought of way to create more time.
So anyone hoping for a Brexit resolution this week is in for a disappointment. But the waiting can’t go on much longer.
By Jill Rutter, senior research fellow, UK in a Changing Europe.