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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Article 50 and Brexit: Are Estragon and Vladimir on the move?

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13th July 2016

What can we make of the cabinet appointments this evening of Boris Johnson, Liam Fox, and David Davis?

Do the appointments mean Brexit is more likely or less likely?

Are they the Three Musketeers – Three Brexiteers – or are they the Three Stooges?

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Of the three appointments, the one which should worry Remainers is that of David Davis.  It is a serious appointment.  He was an outstanding Chair of the main Commons watchdog committee, the Public Accounts Committee, and a competent Europe minister.  He is not a politician to underestimate.

That said: there is the irony that, because of his genuine civil liberties concerns, he is currently suing the UK government at the European Court of Justice so as to enforce EU law.  Not the most appropriate thing a Brexit minister should be doing, one may say.

But what difference will the appointment make?

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On the day of the referendum result, I contended that the longer the delay, the less likely the UK would send the Article 50 notification.

This is not because of any lack of political will: it is because of the sheer policy and legal challenges of Brexit are such that delay will invariably mean events and excuses will come into play.

I still hold that view – but the appointment of a serious player like Davis does prompt a slight wobble.  If there is any Brexit politician who can do it, it would be him.

Estragon and Vladimir are still not getting up, but one could detect a twitch this evening.

**

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Two rules about clarity

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12th July 2016

Prompted by the current debate over the Labour leadership rules, here are two rules about clarity.

First rule of clarity

To say “[x] is clear, it means [y]” means that [x] is not clear.

If [x] were clear, it would speak for itself without any gloss or explanation.

Second rule of clarity

If a thing is clear, it does not need any accompanying word.

For example, if a thing is clear then the accompanying words in each of the following would be redundant: “completely clear”, “absolutely clear”, “totally clear”, “crystal clear”.

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Cavaliers and Roundheads: four thoughts about the Article 50 litigation

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11th July 2016

There are three potential cases against the government on Article 50, demanding that the ultimate decision on Brexit be made by parliament and not the prime minister under the royal prerogative.

Two of these cases (the Mishcon de Reya and Dos Santos cases) are described in my post here, and the third (the Bindmans case) is set out at Jolyon Maugham’s blog – including a detailed letter which should be read in full.

Of the three:

– the Mishcon de Reya case is the most well-known (thanks to a savvy press release);

– the Dos Santos case the one most progressed (with a claim form and a date of 19 July 2016 for a preliminary hearing), and

– the Bindmans case the one where most information is in the public domain.

It is disappointing that in such potentially far-reaching public interest cases, there is so far little information in public domain on two of the potential claims.

That said, there are perhaps four general points worth making.

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First: the government will not want to litigate these cases.

This is for two reasons.

One is obvious: the government will not want to lose a case on this particular issue.

The other is more subtle: the royal prerogative is a valuable tool for the executive.  The fiction is that it is exercised on behalf of the crown by her majesty’s ministers. The reality is that it gives ministers legal powers without any visible means of legal support.

The possibility of having an adverse decision on the scope of the royal prerogative will make government lawyers highly nervous – especially with, say, David Pannick (the barrister on the Mischcon de Reya case) on the other side. Who knows what the High Court, the Court of Appeal, the Supreme Court could rule… (government lawyers would be shuddering at this point).

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Which leads us to the second thought: these cases may not get to trial.

In two of the case, this is a trite observation: there does not even seem to be a formal “letter before action,” let alone an actual claim.

But the government really will not want these claims to progress, and so the government will want to get rid of them if they can.  This may be by successfully opposing the claims at the preliminary permission stage – or it may be that the government offers an apparent concession, such as a promise that there will be a parliamentary vote before an Article 50 notification – formally distinct but effectively connected.  I deal more with this possibility at my FT post today.

What I think the government may say that there will be a vote to repeal (or amend) the relevant EU legislation, but any repeal (or amendment) will then be suspended pending the outcome of the Brexit process.  If the vote is lost, however, the Article 50 notification cannot proceed.  It would be giving the Article 50 decision to parliament in all but legal form, whilst preserving the precious royal prerogative.

If faced with such a concession, the courts may be minded to leave the case alone.

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Which brings us to the third thought: the courts will not be eager to decide this case.

This is not because the case lacks inherent interest: members of the legal profession have been considering these questions since law school, and the respective powers of the crown and parliament was probably the first topic they wrote an essay on.  Judges would love to discuss this case in a seminar or at their bench table.

But they will not want to decide this one in court unless they have to.  This is for two reasons.

First, it is ultimately a political question which should be resolved by parliament. It may well be that the question can be framed in a legal(istic) way about the correct construction of Article 50 and what “constitutional requirements” are or are not. But the judges will not want to be dragged in easily into a political dispute about the outcome of a popular referendum.

Second, the remedies sought in these cases appear to be “discretionary” remedies – such as declarations or injunctions.   A discretionary remedy – unlike the award of damages in a contract or tort claim – is not something a claimant can demand as of right. Even if a claimant can make out their case, the court can still decline to grant the remedy if it serves no useful purpose or is futile.

So even if the case is heard, it is not certain the court will then do anything.

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Which leads to the final point: there is no clear legal outcome to the claims.

Nobody knows for certain what the courts would decide, even if the courts are minded to hear the case and grant a remedy.

Views differ. On the “parliamentarian” side you have Pannick and other distinguished constitutional lawyers, and on the (forgive me) “cavalier” side you have Professor Mark Elliott, perhaps the UK’s leading public law academic and others. These people disagree fundamentally and in good faith (and in good humour).

It is not a “given” that the parliamentarians will win, even with crowd-funding and so on.  The fact that government lawyers will want to head off the claim can be explained by prudence and not resignation.

(For what it is worth, I think both the parliamentarians and cavaliers are correct, and Article 50(1) is wide enough to cover both the exercise of the prerogative and a parliamentary Act as a decision).

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So in summary: you have cases the government wants to close down, cases which the courts will hear and decide only if they have to, cases which may not lead to any decision or remedy, and cases where it cannot be predicted which side is most likely to win.

Whatever happens will, however, be fascinating for anyone interested in law and policy.

**

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The two Article 50 legal claims – the current details

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8th July 2016

There are a couple of legal claims in the news about Article 50. (On Article 50 see my post here.)

The Mishcon de Reya claim

One is connected to the law firm Mishcon de Reya.  The potential litigants have not been disclosed.

This potential claim has been widely reported in the media.  The press release is here.  I made a some comments on this claim at this post.

I understand that this claim is still at pre-action correspondence stage. There has been no claim form or letter before action.

The Dos Santos claim

The other claim is in the name of Dier Dos Santos, a UK citizen.

This claim is at a later stage, and today it was reported that there will be a hearing on 19 July 2016.  I understand that this will be a permission hearing, rather than a substantive hearing.

So far I can establish the following about the claim.

The claim is by means of an application for judicial review.

The claim was issued on 28 June 2016 and served the same day.

It was issued at the High Court in London.

The remedies sought seem to be (a) a declaration and permanent injunction and (b) an interim injunction.

The respondent was originally stated to be HM government, but I understand it now in the name of the Chancellor of Duchy of Lancaster (the somewhat daft formal title of the Cabinet Office minister Oliver Letwin).  In effect, however, the respondent will be the Crown.

The declaration sought is that a “decision” for the purposes of Article 50(1) has to be a decision taken by parliament, and not under the royal prerogative.

(A declaration is a discretionary remedy of the court which “declared” the correct legal position where there is a dispute.  It is a remedy sometimes used when there is no dispute of fact, only a genuine and important dispute as to the meaning of a legal instrument such as a statutory or a contractual provision.  The court can the “declare” what the provision really means – but only if it wants to. As a discretionary remedy, no person has the right to such a remedy.)

I believe the permanent injunction sought is so as to restrain the UK government from taking (or purporting to take) such a decision under the royal prerogative and/or making the notification under Article 50(2).

The interim injunction sought is to have an order in place stopping the UK government taking (or purporting to take) a decision under the royal prerogative and/or making the notification under Article 50(2) until the High Court has dealt with the case.

The reason why the injunctions are required is that once the notification is received by the EU Council, the horse, the genii, and the cat are all out of their respective receptacles, and it passes from being a domestic matter and becomes an EU matter.  When the notification is received by the Council then there would be little that a domestic court can do.

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Parliament, Article 50, and the Leave Paradox

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4th July 2016

The news that there may be a legal case about whether any Article 50(1) decision has to be by Act of Parliament perhaps creates a paradox for the Leave side.

The paradox can be characterised as follows:

Leave Supporter: “We want our own Parliament to be sovereign on matters to do with the EU!”

Response: “Like on whether to Leave then?”

Leave Supporter: “No.”

Those who campaigned Leave so as to uphold Parliamentary Sovereignty are now unhappy at prospect of Parliament being sovereign about whether to Leave.

**

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