The real and worrying significance of the Downing Street dinner leaks

2nd May 2017

The real significance of the leaks from the Downing Street dinner between Theresa May and Jean-Claude Juncker is what the detail reveals about the UK’s lack of grasp about the process and issues of Brexit, and about how weak the arguments are which UK ministers are seeking to deploy.

These details are telling, even taking due account of spin and bias.  These details are also such that they cannot have been invented (or even exaggerated) by the leakers.  (On these details see my thread on Twitter here, republished at my FT blog here.)

And so these details are worrying, and should be worrying – regardless of one’s views on Brexit.

In the UK, however, there will be pearl-clutching at the fact of the leaks, and attacks on the leakers.  Such responses are easier, one supposes, than dealing with the troubling detail.

There is one obvious way in which the UK government could avoid leaks about how badly prepared they are and about their poor grasp of the process and details.

But they would prefer official secrecy instead.

And so UK voters will only find out about the strengths and weaknesses of the UK government on Brexit, based on what was said in Downing Street, by EU leaks to a German newspaper (published in full in the print edition and not online).

If Brexit is to be a success then the UK government needs to improve its grasp of process and the issues, and put forward arguments which are realistic.  That the government is evidently not (yet) doing so is the significance of the leaks.

But the messengers, and the message, will be criticised or waved away instead.

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My book “Brexit What Everyone Needs to Know” is forthcoming from Oxford University Press.

The examples that show May is not “getting on with the job” on Brexit

30th April 2017

The UK prime minister Theresa May often uses the phrase “getting on with the job” in respect of her government’s approach to Brexit.

This in turn is part of her supposed “strong and stable” leadership.

Rhetoric, of course, is one thing.

But there are at least three ways in which May’s government has not got on with the job with Brexit and wasted precious time instead.

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First, back in July, whilst the EU cracked on with practically preparing for Brexit, May lost crucial time starting two (competing) Whitehall departments from scratch.

(My three-part detailed and source-based series at the FT on the EU’s preparations for Brexit  is here, here, and here.)

The two new departments (of International Trade and for Exiting the European Union) are still not (in April 2017) up to speed.

There are reports of turf wars with each other, and both with the Foreign Office, Treasury and UKREP (the UK in Brussels).

There is even still uncertainty as to who is UK’s counterpart to Michel Barnier. (Is it May, Davis, Robbins, UKREP?)

Back in July, the then Cabinet Office minister Oliver Letwin gave evidence to a commons select committee on early preparations for Brexit.

How we laughed at his talk of fine-grained, multi-dimensional options papers – but at least something was being done straight away.

The former prime minister had refused to allow the civil service to properly prepare for one outcome – “leave” – of a binary referendum.  The UK was always going to be far behind, at least to begin with.

It was critical that the UK civil service caught up as rapidly as possible.

But instead of letting the Cabinet Office and Foreign Office (and UKREP) get on with the job, May wasted limited time and resources – at this crucial early stage – with disruptive re-organisational tinkering in Whitehall.

By Autumn, the EU were already lapping the UK before the UK was properly getting started.

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Second, there was the Miller litigation.

Instead of putting an Article 50 bill through parliament to put the government’s ability to make the notification on a statutory basis, May insisted that the government fight the case both in the High Court and the Supreme Court.

In the end, the government lost twice and had to put through a bill anyway.

This litigation diverted limited time and expertise in the government (especially in the government legal service) in the early few months.

There was never any good reason to fight this case. The referendum legislation did not make the result binding at law (even if it were binding politically).

The government could have just got on with the job instead of wasting time in the courts.

And, it must be remembered, May was lucky in the Supreme Court – it was possible that the judgment could have meant that there would have to be formal involvement of the devolved powers, thus creating more delay.

As there was always was a majority in parliament for the appropriate legislation, the court case was a needless, expensive and high-risk diversion.

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The third self-inflicted delay is the most damaging.

On 29 March 2017, May made the Article 50 notification, triggering a two year period for negotiating an exit agreement.

Although this two year period can be extended by unanimity, there is no reason to believe this will happen.  Barnier is on record as saying that he wants to get the deal done in two years.

Every month – indeed every week – is now important.

But May has called a needless general election.

This means that negotiations cannot formally start until June 2017.  May has therefore lost the UK significant time at the start of the negotiation process.

And what makes this particularly unfortunate is that the EU is already well-prepared.

In the UK. however, minister will be electioneering, not preparing; and the “purdah” limits what civil servants can and cannot do.

There could be no worse time for a general election, and its attendant effects on policy and decision making.

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Again and again, under the cloak of “getting on with job” rhetoric, May has diverted and frittered.

May handicapped the civil service before it could get going; the government legal department before it could get going; and now the Brexit exit agreement talks before they could get going.

All for the reason, it seems, of domestic political consumption.

And this is in addition to other obvious missteps: appointing Johnson and Fox, losing Rogers at UKREP, not being able to carry the Scottish Government (in contrast to Donald Tusk keeping the EU27 united, May can’t even keep the home nations on board), and so on.

May boasted of not showing cards and giving “no running commentary” and then she loudly (and needlessly) shows her cards ruling out membership of the single market and the customs union, and rejecting absolutely any jurisdiction of the European Court of Justice.

To contrive bargaining tokens, her government is now reduced to threatening security and intelligence co-operation, and even to try to block the departure of EU agencies from the UK.

Whatever all this can be called, it is not “strong and stable leadership and “getting on with the job” – even if people who should know better nod-along with such rhetoric.

Getting on with the job is what, in fact, the EU are doing.

By keeping EU27 together in respect of consistent and strict Brexit objectives is what Tusk, Barnier and others are (so far) doing, and this can be fairly called strong and stable leadership.

The UK are instead wasting time, when there is no time to waste.

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I have no objection to Brexit in principle: this post is not an exercise in remoaning.  The UK can be successful outside the EU.

But if a post-Brexit UK is going to be a success, the current approach of May and her government does not bode well.

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My book “Brexit What Everyone Needs to Know” is forthcoming from Oxford University Press.

This post is an elaboration of this thread on Twitter.

Was a “soft” Brexit ever possible for the UK government?

28th April 2017

Is the Brexit which is to take place the only one possible? Was there ever a real chance that there could have been a “soft” Brexit? Is it even still possible?

One implication of the three-part series of posts at my FT blog this week (here, here, and here) is that the “hard” Brexit in prospect was the only one which could take place.

This is perhaps because of three things.

First, the EU has maintained since before the referendum that the decision would be accepted.  Brexit would mean Brexit. There would be no re-negotaion of the terms of EU membership. This meant whatever the UK’s terms of exit, and whatever is contained in a future agreement, it would involve the UK as a “third country”. A “soft” Brexit giving the UK full access to (and membership of) the single market would have to be fashioned with the UK firmly outside the EU.

Second, the EU within days of the referendum result adopted the absolute insistence that there would be “no negotiation without notification” and that the EU27 would be united.  This position has been held. This meant that any exploratory talks between the UK and the EU institution and with member states could not take place (at least no officially).  The absence of such talks meant that options to a “hard” Brexit could not be easily canvassed or considered before Article 50 was triggered.  This meant a “soft” Brexit became unlikely.

And third, of course, the EU also asserted within days of the referendum result (as well as before) that the “four freedoms” (of movement, services, goods, and capital) were indivisible and that any access to (and membership of) the single market would require the UK’s acceptance of those four freedoms.  This meant that a “soft” Brexit was only an option as part of a wider package, on a “take it or leave it” basis.

These three elements were in place weeks before Theresa May became prime minister and “Brexit means Brexit” became a commonplace political slogan.

Taken together, these elements suggest that a “hard” Brexit was the only one which was ever possible, regardless of who May appointed as key ministers or what she said at a party conference.  There was nothing the UK could do to stop this.  It did not matter what “Brexit means Brexit” meant to Mrs May or anybody else.  The meaning of Brexit had already been, in effect, determined.

If this was so then Mr May and her government cannot be to blame for any Brexit being a “hard” Brexit: there was no other choice.

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These three elements, however, are indicative but not conclusive.

A “soft” Brexit was always difficult but it was not (and still is not) impossible.

The EU has adopted a consistent, united, transparent and coherent position but it remains only a position.  Political will could rebut the presumption of a “hard” Brexit, if such will existed.

The reason why a “hard” Brexit became inevitable (if anything is ever inevitable) after Mrs May became prime minister was because of what happened next.

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In the crucial months following the referendum it is plain that the EU was getting to work on preparing for Brexit in terms of substantial policy and process.

By December 2016 the EU was ready to receive the Article 50 notification.  As this week’s series of posts at the FT sought to set out in detail and with links to sources, the EU knew what they wanted and how they would achieve it.

The UK, on the other hand, wasted time.

The civil service was already unprepared because of the former prime minister’s decision to prevent  any contingency plans being made in the event of a “leave” victory.

Mrs May then decided to spend the crucial early months creating two new Whitehall departments from scratch.  Before she was appointed, the Cabinet Office under Oliver Letwin was starting the job of preparing for Brexit (as he explained to a parliamentary committee).  But with the new departments everything had again to begin from scratch: weeks would pass before the departments were functioning.

This tinkering meant that by the time the key EU negotiation team TF50 was in place , the departments of Exiting the European Union and International Trade were barely up and running.

There were unsurprising reports of Whitehall turf wars with the the Treasury and Foreign Office.  But these tensions were not just the usual bureaucratic infighting: there would be natural conflicts between the two new departments over the relationship with the EU, as the terms of exit and new UK-EU relationship would affect new trade deals elsewhere.

So by December Michel Barnier and his TF50 team were ready; and by way of contrast, in January the UK suddenly lost Sir Ivan Rogers, its person in Brussels. leaving nobody in charge.

One reason therefore for the UK having to accept Brexit on EU’s terms was because of how it lost precious time with setting up conflicting departments rather than letting the the Cabinet Office and Foreign Office get on with it.

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But more important that this administrative shot-in-a-foot was the Birmingham speech of Mrs May to Conservative party conference.

By ruling out freedom of movement and any jurisdiction of the European Court of Justice, Mrs May closed down the possibility of a “soft” Brexit.

Had she chosen not to put these cards on the table, there was the possibility that full access to the single market could continue to be an option, if the four freedoms could somehow be accommodated.

The EU had only said that the quid-pro-quo of full access was acceptance of the four freedoms, not that it was inherently not on offer. (And, as far as I can tell, that is still the theoretical position.)

A more measured approach would not have made a “soft” Brexit any more likely – there was always a presumption against it – but the October speech meant that a “soft” Brexit became politically impossible.

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A “soft” Brexit was once possible for the UK.

But now, unless something exceptional happens, Brexit will be on the terms prescribed by EU27, and this will mean a “hard” Brexit.

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My book “Brexit What Everyone Needs to Know” is forthcoming from Oxford University Press.

Godot has turned up – the predication and reality of the Article 50 notification

27th March 2017

This week, unless something unexpected happens, the Article 50 notification will be given to start the formal process of the United Kingdom leaving the European Union.

Last summer, after the referendum result, it seemed unlikely to me that this would happen.  The reasons for this view were:

– the referendum was not legally binding and so a separate and distinct legal and political decision still had to be made;

– the process of Brexit would be unimaginably complex and could not be accomplished within the two year period envisaged by Article 50;

– there were significant problems for Brexit because of Scotland and Northern Ireland;

– very few people with power in Westminster or Whitehall were in favour of Brexit;

– there is a tendency in British politics to put things off – indeed, procrastination is a principle of the British constitution (for example, the 1911 Parliament Act was intended to be a temporary measure and is still there); and

– there was no clear or agreed alternative model for the UK outside the EU.

Each of these reasons remains fair.  Not even the most ardent Brexiteer could object to more than one or two of them.

But the Article 50 notification is still being made.  The reasons set out above, although sound in themselves (in my view) were not enough.

So what happened?

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There were two things which happened which meant the Article 50 notification is being made this week, despite the reasons set out above.

The first thing is the dull one that it became apparent that various difficult issues could, in principle, be dealt with on a transitional basis (or “adjustment phases” as the government called it).  This would give the government and the EU more time to solve the problems.  The two years would not be an absolute bind.

The fact that such transitional/adjustment arrangements do not yet exist, and may not exist, is beside the point.  There is room for manoeuvre.

The second thing is the more exciting one of politics.

This became plain at the conference speech in Birmingham last October.  What had been vague statements about “early next year” became a concrete commitment to make the notification by next March.

Even the litigation to establish that an Act of Parliament was required did not prevent this political push.

The Act of Parliament was passed by a Conservative majority in the Commons, elected only in 2015 on a manifesto commitment to “safeguard” the UK’s position in the EU.

The Mandate (and it warrants a capital letter) of the referendum result would brook no opposition.  The people had spoken, and so on.

And so the prime minister’s self-imposed deadline of March is to be kept.

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Being doubtful about this particular Brexit adventure has led to me being dubbed a “Remaniac” and worse.

But this is not the case.

My own views, for what they are worth, are what used to be called “Eurosceptic”.

(I was once research assistant to the anti-EU William Cash MP, alongside my university contemporary Dan Hannan.)

I have never written in favour of the EU; I have opposed every treaty and substantial treaty amendment since Maastricht; and I would have voted against membership had I been able to in 1975.

In essence, I would have preferred the UK not to have joined in the first place.

And a good part of my wariness about the EU is because of the ratchet effect: after 40 or so years, the EU and UK polities were becoming evermore intertwined.

Westminster and (especially) Whitehall were becoming dependent on EU powers and provisions.  Thousands of pieces of secondary legislation were implemented without scrutiny or indeed without any thought.  I do not think membership of the EU has had a positive effect on UK law and policy making.

As a liberal, I was (and am) a fan of the single market and the four freedoms, especially freedom of movement; but also as a liberal, I was unhappy about the lack of transparency and accountability of EU law making.  Brussels for me has never seemed either liberal or democratic.

So as and when the UK ends up outside the EU, I will not be especially unhappy.

My concern is not with the destination but with the journey.  All because you want to get somewhere, that doesn’t mean you will get there.

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Just after the referendum result, my doubtfulness about the Brexit adventure was expressed in a tweet which went “viral”.

The tweet was a riff on Waiting for Godot.

Well: Godot has now turned up.  And neither Vladimir nor Estragon perhaps know what to do now that Godot has turned up.

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On a final note, I just want to set my incorrect prediction in the following two contexts.

First, I only held the view that the notification was very unlikely until the October conference speech; by January I held the view it was likely; and by February I saw it as virtually certain.

Second, I expressed the following views on pretty much the same sceptical basis and they all still seem sound:

– the referendum was not legally binding (and the Miller litigation and the Act of Parliament showed this was the case);

– repeal of the Human Rights Act and/or the UK leaving the ECHR is extremely difficult (and this has been abandoned for at least the foreseeable future);

– the UK would go for “hard Brexit” because it would be easier than a “soft Brexit”; and

– that Theresa May’s public statements meant that the UK would have to leave the single market (which was then admitted).

The Article 50 notification prediction tuned out to be incorrect.  Godot has turned up.

But the reasons which were behind that prediction are still there.

Making the notification is the easy step.  It is the one thing the UK has complete control over, and this week it will be done.

Then the complicated process of Brexit will begin.  Nobody knows how it will end (or if it will end).

But, as I said back in February:  my only prediction now is that those who doubted that the Article 50 notification would ever be seen will get a good-natured ribbing by those who never had such doubts.

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Why the Great Repeal Bill will, in truth, be the Great Whitehall Power Grab

20th March 2017

My post today at the FT on how the Great Repeal Bill will turn out to be the Great Whitehall Power Grab – and why there is no alternative to this.

With added Voltaire, and some Henry VIII.

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Could the Article 50 notification be written on the side of a cow catapulted over the English Channel?

16th March 2017
 
My legal view, at Financial Times.
 

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When was (or will be) the Article 50(1) decision?

16th March 2017

Today the Bill giving the Prime Minister the legal power to make the Article 50 notification will be given royal assent.  The Bill will become an Act.

(Contrary to popular belief, including some news outlets, the Queen does not give the royal assent in person.  No monarch has done this since 1854.  The elaborate process employed instead is under this 1967 Act.)

The Act will provide:

The Prime Minister may notify, under Article 50(2) of the Treaty on European
Union, the United Kingdom’s intention to withdraw from the EU.

Paragraphs 1 and 2 of Article 50 provide:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

So the notification leaves the (no doubt academic but still interesting logical prior) question: when exactly was the decision under Article 50(1) that the United Kingdom would decide ‘from the [European] Union in accordance with its own constitutional requirements’?

The Miller litigation largely sidestepped this issue, no doubt wisely.

(This no doubt is because a decision to notify is a more solid act (or omission) for a court to decide whether there is ‘vires’ (ie, legal power) or not.)

The Supreme Court’s appeal decision mentions Article 50(1) in passing a few times but does not (it seems to me) determine the question.  But (as far as I can tell) their declaration concerns Article 50(2)

When and where can we locate the Article 50(1) decision?  One needs to be taken, else what is to be notified under the new Act.

It cannot be the referendum, as that was not legally binding.

Can it be a decision under the prerogative?  If so, when was that made and in which form?  Has it yet been made?

Or is it the new Act, giving legal authority to make the Article 50(2) notification? Has parliament made the decision?  If so, is this not rather circular?

Is the giving of the notification itself by the Prime Minister also the prior decision?  Is it one and the same?

I am not suggestion anything serious rides on this question – but as a matter of constitutional law, when precisely was (or will be) the decision by the United Kingdom ‘to withdraw from the [European] Union in accordance with its own constitutional requirements’?

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Brexit and the new British Constitution

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15th March 2017

The set out of a textbook on the ‘British Constitution’ used to be straightforward.

(And yes, the British do have a constitution, it just is not codified.  There is a descriptive answer to the question: how is Britain constituted?)

After the various chapters on the executive, legislature, judiciary, local government, nationalised industries, the police, and so on, there would perhaps be a short chapter on Scotland and Northern Ireland.

Wales would have an index entry which said ‘for Wales, see Scotland and Northern Ireland‘.

In other words: the three other component states of the United Kingdom were not taken seriously in constitutional terms. They were, at least for many in England, an afterthought.

This did not stop English politicians invoking ‘British’ as it suited them.  English conservative politicians were fond in particular of calling for a ‘British Bill of Rights’ without a second thought as to the word ‘British’ (or indeed to the word ‘rights’).

This was always misconceived.  Even in the times of old textbooks, the constitution of the United Kingdom was not just that of a greater England, notwithstanding the unifying constitutional doctrines of the powers of the Crown and the sovereignty of parliament.  Scotland, for example, has its own legal system and jurisidiction.  As does Northern Ireland.

(There is no such thing as ‘British law’.  Some laws cover all the jurisdictions of the United Kingdom, but ultimately there are the laws of England and Wales, of Scotland, and of Northern Ireland.  The United Kingdom has always been a form of federation.)

The effect of modern devolution has made the old textbook approach redundant compeletely.

Chapters on Scotland, on Northern Ireland, and even on Wales, need to be towards the start of any constitutional textbook, and not towards the end.

The fact there was never a ‘British Bill of Rights’ (despite ten years of Tory trying) was in large part because it was impossible to repeal the Human Rights Act and enact a replacement in the face of opposition of the devolved powers.  (And because in Northern Ireland, the enforceabilty of the ECHR was written into the Good Friday Agreement.)

A fogey may contend that the sovereignty of parliament still prevails, and that the Westminster parliament may legislate as it wishes.  But that is constitutional theory and not practice.  Such an approach now would not only be arrogant but (as with the aborted ‘British Bill of Rights’) also futile.

Brexit takes place in the constitutional context of modern devolution.  This means that there will be checks and balances in effect even if not in neat constitutional principle.  I have set out over at the Financial Times how the Scottish First Minister has crafted a check and balance out of constitutional thin air: and it has had areal effect in causing a postponement of the Article 50 announcement which was supposed to have been made yesterday.

A constitution regulates what any government can get away with.

In this way, whether the cause of the disappointment is the legislature, the judiciary, or the devolved administrations, the noise of a ‘disappointed’ minister is the sound of a working constitution.

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On Brexit, the SNP and Sinn Féin have been waiting and preparing the whole time

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14th March 2017

Theresa May and her government have had a good Phoney War over Brexit.

They have won the parliamentary votes, even if they lost a court case.

They have played to the gallery – the Brexit-supporting press and the Brexit-supporting backbenchers – getting the easy cheers.

They have had no meaningful opposition in parliament from Jeremy Corbyn’s Labour Party, or from anybody else.  The Lords have surrendered.

So far, Brexit must seem like a doddle.

But yesterday, the Scottish First Minister made her move.

Now we wait for Sinn Féin’s move.

The SNP and Sinn Féin have been watching and waiting and preparing the whole time.

The SNP and Sinn Féin have thought hard about how to exploit this political opportunity.  Only a fool would underestimate either entity.

So soon the proper politics of Brexit will begin, with the UK government facing skilled and determined politicians taking full advantage of the power and leverage presented by the government’s policy of a ‘clean’ (ie, hard) Brexit.

And this is all in addition to the politics of UK’s negotiations with EU27.

The political Phoney War is coming to an end.

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