BEANO: Brexit Existing As Name Only

27th September 2016

Today the International Trade Secretary, Liam Fox, gave a speech about the WTO.

In this speech, he says:

The UK is a full and founding member of the WTO.

We have our own schedules that we currently share with the rest of the EU.

These set out our national commitments in the international trading system.

The UK will continue to uphold these commitments when we leave the European Union.

(There is a great fisking of this speech by Ian Dunt here.)

This speech follows the recent statement of the Chancellor of the Exchequer that EU funding will be guaranteed until 2020.

Could it be that the United Kingdom is not heading for a Hard Brexit or a Soft Brexit, but a Brexit existing as a name only?

Could there  be a BEANO Brexit?

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The many hurdles of Brexit – a short summary post

25th September 2016

This is a short summary blogpost of what appear to be the main issues which need to be addressed for a Brexit to take place.  I set out below the issues as questions, though they could just as easily be framed as statements.

I call each of these a “hurdle” – because it is possible that each one of these can be negotiated and jumped over; but it is also possible that each one can be an obstruction.

The “hurdles” are set out below in a rough sort of order.  It is not suggested each of the these hurdles are the same height: but each needs to be dealt with or it could be a cause of delay or deadlock.

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Hurdle One: Which domestic legal form? Act of Parliament or exercise of the Royal Prerogative (or something else?)

Hurdle Two: What if the Scottish government is resolute in its opposition to Brexit?

Hurdle Three: What if the Northern Ireland government is resolute in its opposition to Brexit?

Hurdle Four: How is the border with the Republic of Ireland dealt with? What impact will there be (if any) on the Good Friday Agreement?

Hurdle Five: What if Gibraltar is resolute in its opposition to Brexit?

Hurdle Six: What if the government is defeated in the House of Commons on Brexit?

Hurdle Seven: What if the government is defeated in the House of Lords on Brexit?

Hurdle Eight: How is any Brexit to be reconciled with the 2015 Conservative manifesto pledge that the UK’s position in the Single Market will be “safeguarded”?  How will that pledge affect the passage of Brexit legislation under the Salisbury Convention (that only legislation which fulfill manifesto pledges will not be subject to Lords’ delay)?

Hurdle Nine: How is any exit agreement with the EU to be completed in less than two years? Or will there have to be an agreement to extend time?

Hurdle Ten: How quickly can the UK and EU commence agreement on a trade (and/or framework) agreement to follow the exit agreement?  Is such an agreement needed?

Hurdle Eleven: On what basis is the UK to have access to the Single Market?

Hurdle Twelve: Is the UK to continue as part of a Tariff/Customs Union with the EU or will it be able to negotiate its own tariff/customs agreements?

Hurdle Thirteen: To what extent (if any) will the UK accept the principle of freedom of movement in any arrangement with the EU?

Hurdle Fourteen: Will there be any special protection for the City of London?

Hurdle Fifteen: How quickly will the UK be able to sort out its position at the World Trade Organization?  Will any current WTO members seek to frustrate or block the UK in this respect?

Hurdle Sixteen: To what extent will areas of substantial law need to be revisited? Would a simple savings provision suffice?

Hurdle Seventeen: To what extent will the law relating to various areas of practice – in respect of mutual recognition regimes and exchanges of information with other member states – need to be revisited?

Hurdle Eighteen: How can the UK civil service achieve Brexit (on top of its ‘normal’ workload) in a period of austerity and reduced budgets – and when it is one-fifth smaller than in 2010?

Hurdle Nineteen: What will be the legal position of rights already acquired (or which may be acquired) by people and companies under EU law once Brexit takes place?   Will they be enforceable?  Will there be compensation for the loss?

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There are other hurdles.  You may know of some.  If so, please add your suggestions below as a comment.

You may also think these are not hurdles, or you may want to quibble with something or other.  If so, please submit a comment and, as long as it is polite and constructive, it will be published.

My own position on Brexit is set out here.

**

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Waiting for Brexit – a note on contentions and biases

5th September 2016

This post sets out my personal view of Brexit, and it also sets out what I believe to be my biases and preconceptions.

The reason I am writing this post is that I am now writing a lot about Brexit at FT and elsewhere (including a short book commissioned by the Oxford University Press) and it seems appropriate to set out in one place what my approach is and what the propositions are which I am advancing.

By way of background: until the referendum vote a couple or so months ago, I never expected or wanted to write much about European Union issues.

I had done a couple of posts at the FT about the referendum before the vote: here I explained why the referendum was not legally binding and here I contended that the referendum was unnecessary.

But I did not expect ever to write any more than this on the topic: I assumed, like many people, that Remain would win and Cameron would get away with his political folly.

Then Remain lost and Leave won, and a spectacular political-legal-policy mess was created.

And, I am afraid, I found this mess fascinating.

I still do.

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After the referendum result, a tweet of mine – a laboured allusion to Waiting for Godot – was heavily RTd:

And around the referendum result, I also (foolishly) made a couple of stark assertions:

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Today there is now some legal doubt as whether it was open to the prime minister to send the Article 50 notification on the day after the result.  There is pending litigation which will probably end up in the Supreme Court on the correct legal form of an Article 50 notification.

(To this all I can say is that had the prime minister purported to do this on the day after the result then I cannot see how any court would have injuncted him or quashed his decision: there had been (1) a decisive majority in (2) a dedicated national referendum with (3) the largest turnout in history and (4) the government’s stated position had been to give effect to the result “straight away”. The notification would have been a fait accompli.)

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When the prime minister did not send the notification it was, for me, the dog in Sherlock Holmes which did not bark in the night time: a curious incident in and of itself.

In short, Brexit became a topic of special interest to me by accident: I was expecting to move back to my usual areas of domestic public and media law and policy.

So, with this throat-clearing out of the way, I will now set out the propositions I wish to advance (and am willing to defend) and the biases and preconceptions of which I am aware.

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Propositions

My first proposition is that Brexit is not inevitable.

This is because of the following:

(1) the referendum was not legally binding;

(2) Brexit will be a complex, time-consuming and resource-intensive exercise (perhaps the greatest exercise by any UK government in peacetime);

(3) there are many other areas of policy which the UK government would prefer to devote its limited time and resources;

(4) there is no model of Brexit which commands support even from a majority of those in favour of Brexit (for example, what should the UK relationship be to the Single Market?);

(5) there is no obvious way the opposition of the Scottish and Northern Irish governments can be accommodated within any plausible model of Brexit;

(6) there is also no obvious way that a meaningful Brexit can be reconciled with the Good Friday Agreement;

(7) a EU exit deal is not easy (as is well known, it took Greenland three years with a small population and one issue (fish) to withdraw from the old, less complex EEC);

(8) replacement international trade deals are not easy and can take up to ten years;

(9) few people with political power in the UK – either ministers or officials – want Brexit to happen; and

(10) statements of political will and intention (however strident) are not the same as evidence of political capability or action.

My second proposition is that Brexit will also not simply go away.  This is because:

(1) the issue of UK membership of the EEC/EC/EU had dogged British politics since the UK joined, and this is the first time there has been (it seems) a resolution of the issue in principle;

(2) the referendum had a higher turnout than any general election and Leave received a greater vote than any political party – and if “mandate” means anything, it must mean this;

(3) there is no likelihood of a second referendum or general election which will (somehow) counter or neutralise the referendum result; and

(4) the government of Theresa May would be unlikely to survive any explicit admission that Brexit is not going to happen.

My third proposition, drawing on the two above, is that there will be a tendency for Brexit to be put off and delayed, without it ever being stated that it will not happen.

This is for all the above reasons, plus the natural inclination in British politics to put off difficult decisions – in the UK, political procrastination is almost an art form.  In turn, this means that over time the notification becomes less likely, as events may intervene and excuses can be contrived.

My fourth proposition is that Brexit could still happen: something becoming more unlikely does not make that thing impossible.  Theresa May is (expressly) willing and (perfectly) capable of triggering Article 50.

Countering each and every factor which tends to Brexit being delayed or not happening is that there may be a political crisis or some need to show political power which leads to Article 50 being invoked.  If so, many of the reasons above will then switch to Brexit not being (well) unproblematic. The problems will not go away: they will just be the same problems in a different context.

Biases and preoccupations

By reason of pointing out the problems with Brexit, I have been accused often of being a Remainer (and less flattering equivalents).

For what it is worth (and I hope my analysis and commentary stands without it being worth anything), my personal views on Brexit are as follows.

First the negatives:

(1) I am not a particular fan of the European Union and I do not think I have ever written in favour of it (this piece is an example of me being not a EU fan);

(2) if in 2016, the UK somehow had not been a member of the EU, I would not want UK to join it;

(3) had I been able to vote in 1975 I would have voted against UK remaining a member of the (then) EEC;

(4) I have opposed every treaty or major treaty amendment since Maastricht (and I would have voted against each, had they been put to a referendum); and

(5) in my view there are two fundamental problems with the EU – (i) the lack of transparency and (genuine) accountability and (ii) the push to “ever closer union”.

On the other hand:

(1) I do not think Brussels and so on are inherently worse (or better) than Westminster or Whitehall – they are all manifestations of the “State” and seem much-of-a-muchness to me as a liberal;

(2) I was a (reluctant) voter for Remain in 2016 only because of the “Breaking Point” poster and the turn the referendum campaign seemed to take about the time of the tragic death of Jo Cox (I had intended not to vote at all);

(3) I am a supporter of the ECHR and NATO (if not of the EU); and

(4) I am a supporter in principle of there being as few controls on migration and immigration as possible, as I believe both are Good Things.

So, with these biases and preconceptions about Brexit, I aim to be generally neutral about Brexit, and I believe myself to be ultimately indifferent about whether UK is a member of the EU or not.

I realise that in the preceding paragraph a lot of work is being done by the adverbs; but that is as accurate a description as I can manage.

For me, it is the mess of Brexit which I find fascinating, and so my (conscious) intention – and ambition – is to offer good and reliable analysis and commentary on Brexit.

**

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Brexit: a story of a brainstorm

31st August 2016

Today the Cabinet are having an away day, where they will “brainstorm” (horrendous verb) what they mean by Brexit.

Seriously.

You can almost imagine the Prime Minister standing there with a white flipchart and a new pack of marker pens, trying to get the awkward silences to end.

You can also imagine “Brexit” written on the top of the first sheet of the flipchart, with the “t” a little crushed, as not enough room had been left for it.

Under the word “Brexit” the rest of the sheet of the flipchart, of course, remains blank.

“Well, lets think about what Brexit does not mean,” says May.

Silence.

“Does it mean…not….Brexit?” ventures one minister.

Silence resumes.

Suddenly the prime minister takes a new marker pen, and draws a line across the flipchart sheet.

“This is our red line,” she says, proudly.

Silence again.

“Let’s have coffee and resume this shortly.”

Everyone nods.

In the conference room the flipchart is now ignored.

“I do like these biscuits.”

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This was originally on Twitter – some the replies to the tweets are brilliant.

**

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Brexit Diary: recent news on the “high politics” of Brexit in Westminster and Whitehall

(These Brexit Diary posts collect recent news and commentary.)

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Today’s Brexit diary contains recent news on the “high politics” of Westminster and Whitehall.

Brexit is not inevitable, says former civil service chief, Guardian, 27 August 2016

Few things are inevitable in human affairs, and this was a statement of the obvious by O’Donnell.  This observation, however, was useful as a peg to hang the civil service stories below.

The following two links are also not really news: the government’s long-standing position is that Article 50 can be triggered without a parliamentary vote.  This contention will be tested by the High Court in October, with a likely Supreme COurt hearing in December.

Theresa May will trigger Brexit negotiations without Commons vote Telegraph 27 August 2016

Theresa May ‘acting like Tudor monarch’ by denying MPs a Brexit vote Guardian 28 August 2016

The following links are news.  What is significant is that there is still no settled government position on the shape of Brexit.  There can be no surprise that in the absence of such a policy, splits are emerging.

Theresa May calls Brexit meeting amid reports of single market split Guardian, 28 August 2016

Chancellor blamed as cabinet splits over single market Sunday Times, 28 August 2016

The prime minister tells civil servants to “get on” with implementing a policy which does not exist yet:

Theresa May tells pro-EU civil servants to get on with the job of delivering Brexit Telegraph 28 August 2016

The prime minister also tells her cabinet to come up with a Brexit policy:

Theresa May, the Brexit enforcer, orders her Cabinet ministers to come up with blueprint for EU exit Telegraph 28 August 2016

And already the civil service (on whom the success of Brexit will depend) are being attacked for not implementing a policy which does not exist yet:

Whitehall must not try to block Brexit Telegraph, 28 August 2016

**

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Brexit Diary: the clash of political will and reality, continued

22nd August 2016

(These Brexit Diary posts collect recent news and commentary.)

The story of Brexit is about the clash of political will (the referendum result and express government policy) and the realities of trade, devolution, and government capability.  All because the government wants something to happen, it cannot just be made to happen.

In respect of trade, here are a couple of interesting, well-informed but sceptical  pieces.   First, George Magnus – one of the best follows on Twitter on Brexit and trade questions, at the Sunday Times:

And this is an excellent blogpost by Jeegar Kakkad on whether the UK could emulate the Canada-EU deal:

On devolution, there is news of another Article 50 claim in Northern Ireland – and you should ask anyone who confidently assures you “Brexit will happen” to explain how these Good Friday Agreement issues will be addressed.  It may well be that they cannot be dealt with.

Back in Whitehall: it is reported there will be 32 senior civil servants at the Department for Brexit.   The Observer assesses the unpromising start of the Brexit ministers, and the Telegraph describes how the ministers are fighting over space and resources.

The frustration at the lack of movement is becoming louder.  The Spectator announces it is time to start defending Brexit, and the Telegraph reports Iain Duncan Smith is demanding that Brexit talks as soon as possible.  In the Guardian, Fabian Zuleeg says Brussels is also getting “impatient”.

And so what is the solution? In the Sunday Times:

Theresa May will harness the spirit of Britain’s Olympic “world beaters” to draw up a blueprint for Brexit — as Team GB’s performance in Rio was hailed as the greatest yet by a British team.

A senior cabinet minister has revealed the government will adopt the same approach of backing “excellence” that has catapulted Team GB to Olympic glory as the master plan for economic prosperity outside the EU.

This must be the daftest thing yet said on Brexit, by either side, and against tough competition.  If the government believes the “blueprint for Brexit” is somehow “backing” winners, it should be remembered that this is only two months after government backed the losing side in referendum…

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Brexiteers and the story of the would-be time-traveller

2nd August 2016

There is a story about a child that wants to travel back in time.

The child goes to one adult – a silly adult – and tells them about wanting to travel back in time.

The silly adult tells the child: you cannot, this is not possible.

The child then goes to another adult – a wise adult – and tells them about wanting to travel back in time.

The wise adult tells the child: have a go, and see what happens.

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There are some Brixiteers who think Brexit is easy.

To take two prominent examples , here is Conservative MP Bernard Jenkin:

“Leaving the EU is in principle straightforward; much easier, in fact, than joining since it is not necessary to change domestic laws and regulations. All the laws and regulations that apply by virtue of Britain’s membership can remain perfectly aligned with those of the rest of the EU until they may be changed at a later date. This is how the UK gave independence to the countries of the British empire.”

And here is another Conservative MP, Jacob Rees-Mogg:

Leaving the European Union is unquestionably a big decision but it is not a particularly complex one. Article 50 is easy, the royal prerogative is clear and the law is stable. Additionally the political will also seems to be present to make it happen and to work.

Please read the pieces in full, if you can, so you can be sure they are not being misrepresented.

My view, for what it is worth, is that Brexit will not be easy.

But if the proponents of an easy Brexit are right, then the view that Brexit is hard will be disproved soon enough.

So there is no point arguing about it.

Like the wise adult of the story, perhaps one should just say to the proponents of an easy Brexit: have a go, and see what happens.

**

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Brexit Diary: more delays and difficulties

1st August 2016

These Brexit Diary posts collect recent news and commentary.

News

Lords could delay Brexit decision, says Conservative peer.

Britain to ‘leverage’ £11bn of foreign aid to build new trade deals after Brexit – possibly unlawful, certainy desperate, and largely irrelevant, given UK’s main trading partners are not those in receipt of aid.  And “leverage” is not a verb.

Commentary

Britain should look to leave the EU as swiftly and simply as possible, writes Bernard Jenkin in the FT – not a detailed piece, and the comments underneath are the most brutal I have ever seen in the FT.

Civil Service World: Theresa May’s Brexit shake-up of Whitehall sending “mixed messages” to the EU – on the Whitehall confusion caused by the three Brexit departments.

ICTSD: Nothing simple about UK regaining WTO status post-Brexit, by former WTO staffer Peter Ungphakorn – important piece on an overlooked difficulty.

LSE Blogs: Return to the Commonwealth? UK-Africa trade after Brexit will not be straightforward, by Peg Murray-Evans – another overlooked difficulty.

Institute for Government: Leaving the EU customs union: what is involved, by Daniel Thornton – on the the implications of Fox’s favoured approach.

A misleadingly titled piece on Michel Barnier at the Guardian by Syed Kamall is worth reading – the title refers to Banier, not the UK’s Brexiteer ministers.

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Brexit Diary: delays and difficulties

31st July 2016

These Brexit Diary posts collect recent news and commentary.

News

Theresa May confirms Crown dependencies will take part in Brexit talks – this will not speed things up.

Commentary

A good piece by Alan Riley on “Hard Brexit” vs “Soft Brexit”.  He explains why neither option is the easy one.

At Quora, Paul Mainwood sets out a plausible case for Brexit being delayed endlessly: The art is to make it look as though it’s not collapsing.

And for those who said we were never warned of the difficulties, this by Agata Gostyńska-Jakubowska from April(!) reads well today on the difficulties of Brexit.

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Brexit Diary: UK’s six tasks, and the need for French lessons

28th July 2016

The immensity of what needs to be done by the UK is becoming plain.  One excellent post on this is Six Brexit deals that Theresa May must strike by Charles Grant.  government. 

And, in the meantime, it seems Michel Barnier is not going to make it easy for the UK.

 

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