Boris Johnson says he'll be saved by a deal struck in Brussels – but EU insiders tell me there's little hope

Talks continue at a technical level about the Irish backstop. But EU officials are at the table mainly because they do not want to be seen to be walking away or spurning UK advances

Before Tuesday’s devastating Supreme Court ruling, some Boris Johnson allies saw the case as a mere hors d’oeuvre before the real legal battle next month. They expected him to refuse to implement the law passed by parliament requiring him to seek an extension to the UK’s EU membership.

While some ministers back Johnson’s strategy of “doubling down” and presenting the judiciary as part of “the establishment versus the people”, others are starting to call it into question.

They believe that another bruising fight with the courts is ill-advised after Johnson’s mauling by the 11 Supreme Court judges for suspending parliament. “He cannot risk it now,” one Tory MP said.

Johnson’s options are limited. He might seek a general election for a third time, but knows the move would be shot down by opposition parties until he has swallowed the horrible medicine of an extension and until they are sure he cannot wriggle out of it.

He might prorogue parliament again for a few days before the Queen’s Speech planned for 14 October. (The Supreme Court said a four-to-six day break before the state opening was normal). But, with MPs now back at Westminster and the wind in their sails, the Queen’s Speech would probably be voted down. Johnson is now in danger of being held prisoner by parliament, unable to break out.

The least worst option for getting out of this mess of his own making – and perhaps the only way for him to avoid a humiliating U-turn on an extension – is to secure a new Brexit deal. The approval of the Benn Act forced the PM to seek such an extension and certainly saw the government inject more energy into getting a deal. The Supreme Court’s dramatic intervention now ratchets up the pressure further.

Boris claimed during his curtailed visit to New York that a “great deal of progress has been made” in the talks. But yet again, he is being rather economical with the truth. Brussels tells a very different story. “We are a very long way apart,” one insider told me. “There has been no real progress.”

Talks continue at a technical level about the Irish backstop. But EU officials are at the table mainly because they do not want to be seen to be walking away or spurning UK advances. The EU’s national leaders want to show their domestic audience they tried to prevent no deal in case that happens; they know it would be accompanied by a cry of “blame Brussels” from Johnson.

EU officials dismiss tentative proposals floated by the UK as not even coming close to satisfying the EU’s three demands for any alternative to the backstop – a fully open border; maintaining Northern Ireland-Ireland cooperation under the Good Friday Agreement and preserving the EU’s single market.

For example, UK plans for an all-island, agri-food zone would cover only about 35 per cent of border issues, according to Brussels. It argues that UK plans for an almost invisible border do not meet EU demands for “no infrastructure, related checks and controls”. Proposed exemptions for small businesses are a problem for the EU because almost half of cross-border trade by value is by such firms.

“Piecemeal measures will not be enough to close the gulf between us,” one source said.

EU diplomats believe the only way an agreement could be struck at the EU leaders’ crucial summit on 17-18 October would be for Johnson to concede some “Northern Ireland-only” solutions. They see no chance of that happening until after next week’s Tory conference because the issue is so sensitive. Even then, it would risk alienating the Tories’ Democratic Unionist Party partners.

And there would still be no guarantee of a deal. After seeing Theresa May’s withdrawal agreement rejected three times by MPs, the EU would be reluctant to make concessions unless they believed they would win Commons approval. Any such confidence will not be enhanced by what looks from Brussels like a government weakened by the Supreme Court ruling, and heading for an extension followed by an election.

That’s another reason for the EU to hold back, and wait to see what the voters decide.

The Benn Act kicks in on the day after the summit if no agreement has been approved by parliament. If Boris defied it, he would soon be back in court. One senior legal source predicted: “Things would move quickly. The courts could issue a notice to comply with the law and the government might have only an hour to respond.”

If Johnson really wants a deal, he is going to have to give ground in the negotiations, and quickly.