Brexit diary – the “process” phase is now firmly in place

13th September 2017

With the Withdrawal Bill passing the “second reading” vote (see my FT post here) and the Brexit negotiation talks now passed their third round, Brexit is now firmly in (what can be called) its “process” phase.

Until the second reading vote, it was open to the UK government to start again with a Bill with less wide-ranging scope.  But now the government is committed to this approach.

I plan to write later today at the FT on the significance of Brexit now being a process thing, with all the preliminary manoeuvers  (or lack of manoevres) out of the way.

If you want to follow both the Brexit negotiations and the Withdrawal Bill aspects of the process, do have a look at my (updated) resource page on the negotiations and my guide to the withdrawal bill.

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And finally

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Brexit: How to follow the European Union (Withdrawal) Bill – a practical guide and introduction

12th September 2017

Last night the House of Commons voted on the “second reading” on the European Union (Withdrawal) Bill.  This is a general vote on the principle of the legislation.

MPs voted in favour of the Bill, and it now will be considered in committee where the clauses will be examined and amendments considered.

You can follow the Bill as follows.

First: you should look at (and perhaps even bookmark) this page on the parliament site.  This will show the progress of the Bill and will link to parliamentary materials.

Then: read the Bill – it is a short Bill, with only 19 clauses in its initial (vanilla) form (here).  It is worth reading these 19 clauses.  You will then see what much of the fuss is about.

The schedules (lawyers usually say it with a “sh” when talking about legal instruments) are more substantial, but the effect of the schedules is provided for by the operative clauses.  The schedules “hang below” the relevant clauses, so to speak.  One key schedule is Schedule 7, which provides (supposed) safeguards on the proposed wide discretionary law-making powers for ministers.

You can then look at the Explanatory Notes (here).  These are not part of the Bill but are a guide to what is intended by the government by each clause.  Only a mad person reads these like a novel from beginning to end. Instead, focus on a clause or a schedule and cross refer, as necessary.  In other words, treat explanatory notes like a series of footnotes.

(Some may say that the less clear a Bill the longer the Explanatory Notes, and that clear legislation should not need no explanatory notes. And they would have a point.)

There is also, for completists, a 58-page Delegated Powers Memorandum (here). This should only be looked at if you have a serious interest in the delegated powers. It is heavy duty stuff.

The House of Commons Library (an excellent group of people and an adornment to our constitution) has provided a research briefing on the Bill. This is an essential resource,

The briefing is at the link at the bottom here.  This briefing is, in general, your best and most impartial guide to the Bill.  Read the introduction and general sections, though (as with he Explanatory Notes) use the detailed comments as footnotes when looking at individual clauses.

It is worth checking with the House of Commons Library research briefings page from time to time to see if there is any further briefing as the Bill progresses.

As for informed commentary, you should keep looking at the blog of the estimable Professor Mark Elliott.  He is not only a leading legal blogger, he happens to be one of the UK’s leading experts on constitutional law and is legal adviser to the House of Lords Select Committee on the Constitution.  His Twitter account is here.

Any useful commentary will be linked to on his special and regularly updated resources page on the Bill.

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Brexit negotiations: Key Round Three documents

10th September 2017

I have added the following documents to the Brexit negotiation resource page, following Round Three of the Brexit negotiations on  28th to 31st August 2017:

David Davis’ opening remarks on 28 August 2017 at the start of the third round of EU exit negotiations

Speech by Michel Barnier on 31st August  2017 at the press conference following the third round of Article 50 negotiations

David Davis’ closing remarks at the end of the third round of EU exit negotiations in Brussels

David Davis’ statement to the House of Commons on the second and third rounds of the Article 50 negotiations.

The joint technical note on EU-UK positions on citizens’ rights after third round of negotiations, 31st August 2017  – this summarises the UK and EU positions and compares them following the 3rd round of Art. 50 negotiations

A thought experiment – what would the Tories say?

10th September 2017

Imagine a general election.

Imagine Corbyn and Labour are largest party but with no overall majority.

Imagine a “confidence and supply” £1 billion deal with another party so as to give the Labour party an overall majority on key votes.

Imagine Corbyn then brings forward a “Austerity (Withdrawal) Bill” providing ministers with widest statutory powers to make, amend, or repeal laws.

Imagine the minority Labour government rigging the committee system so that they have majorities, outside scope of the “confidence and supply” deal.

Imagine the minority Labour government getting rid of Queen’s Speech for two years, so that there was no chance it could lose such a particular vote.

Imagine the minority Labour government legislating that *any* deal it does with EU can be implemented as law by ministerial discretion.

And now imagine what the Tories would say to any of that.

 

[Based on this thread.]

 

Criticising UK’s Brexit difficulties is like following a crap football team

4th September 2017

Once upon a time Aston Villa were the winners of the European Cup.

A year later Villa defeated Barcelona for the European “super cup”.

Those were the days.

Villa are now in the bottom half of the “championship” (the old second division), after a decline over many years.

Most Villa fans will have their view as to the biggest marks of the decline.

Mine, for what it is worth, was the awful, unforgivable decision in 2009 to field a weakened side in Moscow.  Other Villa fans will have their examples.

But nobody will suggest that such criticism means that Villa fans are not really Villa fans and that they actually want opposing teams to win.

Following an under-performing football team is not fun, but it does not make you any less of a fan when you point out the under-performance.

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Watching the UK government deal with Brexit is a lot like watching Aston Villa in decline.

Unforced error after unforced error, as the side does ever more badly over time.

The memories of greatness only making things worse.

Some suggest that criticising the UK’s many mistakes over Brexit is to be on the side of the EU.  That one is “talking down” the UK and “cheering on” Juncker, Barnier, or whoever.

But a person can be critical of a thing, and express that criticism, without it meaning that the person is opposed to it.

One suspects the people expressing such views have never followed a crap football team.

There is no pleasure in watching the government’s foreseeable difficulties on Brexit, just as there was no pleasure in watching Aston Villa’s foreseeable relegation.

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Brexit, news and information

22nd August 2017

Many deride and dislike the “lobby” system, based on Whitehall briefing and ongoing relationships between Westminster journalists and contacts.

But if that is where the useful information is, then it (sort of) works.  It is the horse for the course.

The thing, however, about Brexit is that often little useful information is currently in Whitehall/Westminster – and so there is sometimes bluff and bluster instead.

In this way, Brexit simply does not suit the lobby model of political news reporting.   And that is why disproportionate space is currently given to empty off-record stuff.

This is not to criticise the lobby.  There are many great journalists.  But the key information is not now often with Westminster and Whitehall contacts and sources.  It is instead coming from Brussels.

The Brussels desks of most UK news organisations are now better guides to how Brexit will affect the UK than anyone with lobby passes.

But the UK government still thinks domestic media are the most important audience.  Ministers are approaching Brexit with a “lobby” mentality.

And so we have daft embargoes and Davis giving desperate interviews, while UK lags behind on position papers and proper preparation.

UK may still get its Brexit act together, but ministers need to stop thinking only in Westminster/Whitehall/lobby terms.  The true battleground is elsewhere.

Many say Percival lost Singapore because things were pointed in the wrong direction (though some say otherwise).  Brexit ministers risk making a similar mistake.

(This post is based on this thread.)

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Brexit and daft embargoes

20th August 2017

To appreciate the sheer ridiculousness of yesterday’s “strict” press embargo of the Department for Exiting the European Union (DExEU) you need to know a little about the background to the current Brexit negotiations.

Transparency of the negotiations

The exit negotiations are between the UK and the European Commission, which is representing the EU.

On 19th June 2017, the first formal day of the negotiations, both sides agreed the terms of reference.  This is a joint document,  Click here to see it hosted on the DeXEU website.

The terms of reference document is short but significant, and it is worth the the time to read in full.

In it you will see that it is envisaged that negotiation texts be circulated in advance of each round of negotiations (paragraph 6) and that the default for the negotiations will be transparency (paragraph 11).

This joint stance on circulating texts and transparency is in contrast to the earlier reported comments of the prime minister Theresa May at that infamous Downing Street dinner:

May had wanted complete confidentiality for the live negotiations.  She was told this was not possible.  What this means is that as late as April it seems the UK were not intending to publish any meaningful documents during the negotiations.

Position papers

The European Commission (and later the UK) met the dual requirements that negotiations texts be circulated and there be transparency by the publication of “position papers”.

Click here for the three web pages (so far) of published Brexit negotiation documents from the EU Commission.

You will see several position papers, the first being on the financial settlement published back on 29th May 2017.  You will also see there has been a steady supply of other position papers since.

The European Commission publishes these position papers without much fanfare.  Publishing them on their website serves the purpose of everyone in the EU27 remaining states, the EU institutions and in the UK seeing the position papers at the same time.

Some of the position papers are on the big topics of the financial settlement and citizens’ rights (the first two to be published).  Others are on mundane (though still necessary) topics.

As positions develop then a fresh position paper is provided.  In this way everyone can keep track of the EU’s intial and evolving positions on each aspect of the negotiation. The substance of the EU’s positions is kept in plain sight.

Now look at the UK’s approach, click here.

Until last week there had only been five.  Now there are six.  There still is not one on the financial settlement (the European Commission has published two).

You will see the UK has also (somewhat optimistically) published a paper on the future partnership with the EU – even though those negotiations will not begin until the EU is satisfied there is “sufficient progress” on the exit issues.  You will note this paper was not published as a position paper but is alone under another heading.

One UK position paper is only four pages big, including one blank page.  It almost looks like it was published just so the UK could be seen to have published a position paper.

Over time, you should (ideally) be able to see the parties heading towards agreement on each issue by watching the position papers evolve.

The provision of position papers is therefore straight-forward and expected.  It is what the UK has agreed to do, and has to do, for the Brexit negotiations to work at all.  The position papers are important, but they are not special.

The DExEU “strict embargo”

Yesterday (a Saturday), the DExEU press office sent out an email with the eye-catching heading:

STRICTLY EMBARGOED UNTIL 00.01 SUNDAY 20 AUGUST

Gosh.

Not just an embargo, but a “strict” one.

This must be important.

And it was an embargo of midnight at the weekend.  This means that the press release is for the benefit and convenience of the Sunday press.

There is nothing inherently wrong with embargoes, and they sometimes serve a useful purpose (for example, when there is a detailed report to be published and reporters need time to read into the background, or when a NGO wants to ensure wide coverage for an item by ensuring key information is provided on equal terms to a number of outlets).

So what warranted this “strict” embargo at the weekend, designed to maximise coverage in the Sunday papers?

The rest of the email was as follows:

UK STEPS UP PRESSURE ON EU WITH NEW BATCH OF POSITION PAPERS

A fresh wave of papers outlining the UK’s negotiating strategy on key issues related to Brexit and Britain’s future relationship with the EU will be unveiled this week.

With the UK stepping up pressure on the European Commission to move talks to the future partnership, two formal position papers will be published on the continuity in the availability of goods on the market, and confidentiality of documents.

The goods paper will see the UK will press the Commission to widen the narrow scope it has placed on the availability of goods on the market, via its own paper on this issue.

The UK is calling for services associated with goods to be included in withdrawal discussions as well, believing that this is the only way to protect consumers and businesses that trade before Britain leaves the bloc.

Services are essential for production of goods, for their sale, distribution and delivery, and for their operation and repair.

One example is that some engine manufacturers allow customers to pay a fixed charge per hour of operation, with the company looking after all maintenance and repairs. And with lifts, manufacturers are responsible for their installation and servicing.

In the EU, services inputs in products accounted for around 40 per cent of the added value in manufacturing exports in 2011, demonstrating the importance of minimising uncertainty for services as well as goods sectors.

Last year services made up 80% of the total UK Gross Value Added (GVA), and 74% of the EU’s GVA — underlining how important it is to discuss services early on in the negotiations.

The UK will also set out its position this week on ensuring that official documents and information exchanged between the UK government and the EU and other member states are protected.

In a busy week ahead, there will be further papers on; future civil judicial cooperation; proposed mechanisms for enforcement and dispute resolution once the European Court of Justice no longer has direct jurisdiction in the UK; and data protection.

This latest cluster of papers come a week before the next formal negotiating round, which will be led by Brexit Secretary David Davis who said:

“This week we set out more detail of the future relationship we want with the European Union, putting forward imaginative and creative solutions to build a deep and special partnership with our closest neighbours and allies.

“In the coming days we will demonstrate our thinking even further, with five new papers – all part of our work to drive the talks forward, and make sure we can show beyond doubt that we have made sufficient progress on withdrawal issues by October so that we can move on to discuss our future relationship.”

On the sequencing of talks, David Davis added:

“With the clock ticking, it wouldn’t be in either of our interests to run aspects of the negotiations twice.”

 

The mention of “stepping up pressure” is laughable: the position papers to be published are expected and straight-forward.  They have to be provided before each round, else the negotiations cannot meaningfully carry on.  There would be nothing to talk about.

And in view of the failure so far of the UK to match the output of the EU in providing position papers, this was not to “step up” pressure but to relieve pressure.  It is the UK catching up.

But the announcement was not even of the position papers. It was an announcement about an announcement.  The “strict” embargo was of nothing other than a trailing of something fully expected but yet to come.  It was not a news story.

There was no good reason for this to be subject to an embargo, let alone a “strict” one.

The “notes to editors” did not mention these were just yet more position papers in an agreed process, joining many other position papers.

The intention therefore appears solely to be to mislead the time-poor weekend news media into providing “stepping up pressure” headlines and coverage.

Back in November 2016 I contended (at the FT) that, in reality, the UK government was not seeking to negotiate about Brexit with the EU, but with the UK media and its own backbenchers.  The UK seems to want more to convince its domestic audience not the EU.

But like Percival at Singapore, the UK government is pointing things in the wrong direction.

The UK government seems not to be able to grasp that the true negotiation is with the EU and not the domestic media or its political supporters.

And while the EU were preparing all its position papers, the UK instead had a (needless) general election – bringing to a temporary halt any serious UK work on the UK’s negotiating positions.  The EU did their spade work while UK ministers were busy doing other things.

A serious and sensible approach to Brexit would mean that the UK government stopped its silly games of “strict embargoes” and midnight news releases, and without fuss just got on with the job of formulating and producing position papers for a collaborative negotiation with the EU.

Presenting what should be a business-like process as “stepping up pressure” indicates a fundamental misunderstanding and weakness in the UK position.  It is seeking media clamour to mask the lack of detailed work so far.

I happen not to be against Brexit in principle: but the UK government’s current approach is counter-productive, and it makes it unlikely that Brexit will go well, at least for the UK.

And “strict” embargoes over trivial announcements of yet-to-be published but expected routine position papers so as to spin a “stepping up pressure” narrative can only be described as pathetic.

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Brexit round-up – James Chapman, Repeal Bill and Francovich, Trade, Customs, ECJ and domestic courts

11h August 2017

As I am taking a break from active tweeting (and am instead on Twitter just to promote my posts and so on), this is a round-up of interesting links and tweets on Brexit and similar stuff.

 

The Brexit debate

James Chapman continues to throw grenades:

 

Brexit Repeal Bill

The Times does a good report on the (obvious?) point that once EU law eases to have effect, remedies under EU law such as “Francovich” damages (for UK’s failure to properly implement EU law) are no longer are available.

 

Brexit issues – trade

Good piece at the Financial Times by Gemma Tetlow on the practicalities of Brexit without a customs deal:

 

Brexit issues – European Court of Justice (and domestic judiciary)

Stonking editorial at Financial Times (nothing to do with me!) on Brexit and domestic judicial independence.

 

And finally…

 

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Brexit round-up – James Chapman, Gina Miller, UK position, City of London, Scotland

10th August 2017

As I am taking a break from active tweeting (and am instead on Twitter just to promote my posts and so on), this is a round-up of interesting links and tweets on Brexit and similar stuff.

 

The debate on Brexit – James Chapman

The emergence of James Chapman as a Remainer at this latest stage of the Brexit debate is a bit like Euron Greyjoy coming along in the recent episodes of Game of Thrones.

Chapman’s fearless glee in taking on his opponents has certainly shaken things up a bit, whether or not you agree with him (I don’t fwiw).  His Twitter feed is here.

Why is his entry into the debate significant? Well:

This is a Reuters news report on some of Chapman’s contributions to the Brexit debate: “Stop EU exit ‘catastrophe’, says UK Brexit minister’s ex-chief of staff“.

 

Parliament and Article 50 – Gina Miller

Gina Miller has done more for the independence and supremacy of the UK parliament than any parliamentarian one can think of.  It was her (and others’) legal case that led the Supreme Court holding that it was for parliament and not the executive to make the Article 50 decision.

And now, this horrific story at The Guardian: “Gina Miller afraid to leave her home after threats of acid attacks

 

Brexit negotiations – UK position

Politico Europe has this: “Britain launches Brexit charm offensive:
London has become increasingly sensitive to suggestions the UK is underprepared for Brexit”

Great piece at Sky News on the upcoming politics of Brexit and the position papers, by Beth Rigby: “Real battles for PM around the corner

Financial Times: “Theresa May’s cabinet split three ways over Brexit transition

 

Brexit issues – City of London

Financial Times:A stark warning on the cost of Brexit indecision: The financial sector will soon have to act on a worst-case scenario

 

Brexit issues – Scotland

An interesting development – more of that charm offensive, perhaps:

And finally…

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Brexit round-up – referendum promises, EU position, UK position, Ireland, single market, Brexit bill, ECJ

9th August 2017

As I am taking a break from active tweeting (and am instead just promoting my posts and so on), this is a round-up of interesting links on Brexit and similar stuff.

 

Brexit referendum – campaign

Interesting, from criminal solicitor-advocate Nicholas Diable:

 

Brexit negotiations – EU position

Martin Selmayr is, of course, chief of staff to the President of the European Commission.  He is currently making a point of tweeting a lot about Brexit and consumer standards and data protection:

The data protection point is also addressed by Chris Grey in this informative post.:

 

Brexit negotiations – UK position

The UK government is to release Brexit position papers in the next few weeks, according to The Guardian:

Simon Fraser, the former senior official at the Foreign Office has described the UK of being “a bit absent” in talks that “have not begun well” – news item.

Nick Macpherson, the former senior Treasury official is similarly unimpressed but hopes something better will come along:

An excellent thread by @jonnymorris1973 on UK’s lack of preparation for Brexit, and why this should alarm Brexiters more than anyone – click on this tweet to read full thread:

Wolfgang Munchau at the Financial Times wisely explains how Article 49 (on joining the EU) may become more important that Article 50.

 

Exit issues – Ireland

An outstanding piece by Finatn O’Toole on how the Republic of Ireland is deftly taking advantage of UK’s ineptness in the Brexit negotiations:

 

Exit issues – Brexit bill and financial issues

Ian Dunt at The Guardian on how the UK should be realistic on the Brexit bill:

A perhaps significant leader at The Sun on the UK settling its bill in return for free trade deal.

Article by Labour MP Chuka Umunna at the New Statesman: “It’s official – there’s a £200m hole in the Brexit bus NHS promise”

Editorial at the Evening Standard on the financial side not being the real problem:

 

Exit issues – single market

This is a fascinating piece by Matthew Holehouse on whether Article 127 of EEA is still in play, making it easier for the UK to stay in the single market:

 

Exit issues – jurisdiction of European Court of Justice and related legal issues

A well-reasoned leader at The Times on the EFTA court as a work-around.

The BBC reports that “UK judges need clarity after Brexit” according to the president of the Supreme Court Lord Neuberger.

that report prompted this great thread by George Peretz QC on UK courts and ECJ jurisprudence, post-Brexit – the first tweet in thread is here, click on it for the rest:

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