Brexit diary – After Florence

25th September 2017

So Theresa May’s Florence speech has come and gone.

What should we make of it?

In respect of the Brexit negotiations, the speech has made little difference.  The position before the Florence speech is more-or-less the position today.  The only concrete proposal, that of a security treaty, was welcome but not directly relevant to the current negotiations.

That said, the speech has not made anything worse in respect of the Brexit negotiations.  It was “cautiously welcomed” by EU leaders who all then added that particular details were needed.

As such, it would not be fair to call the speech a failure; it was more that it was not really anything at all.

And in respect of May keeping the current cabinet together, the speech was a success.  The cabinet stagggers on for another few days, perhaps weeks.

But if the speech was not in itself a failure, the speech was about failure.

The request – which may or may not be granted by EU27 – for a two year transition on current terms is an implicit admission of the UK government’s failure to date on Brexit.

The silence in the speech on what ultimate relationship the UK is to have with the EU after Brexit is an implicit admission that the government does not know (or cannot agree) on what that ultimate relationship should be.

A year ago, in Birmingham in her conference speech, May said (emphasis added):

“There was a good reason why I said – immediately after the referendum – that we should not invoke Article Fifty before the end of this year. That decision means we have the time to develop our negotiating strategy and avoid setting the clock ticking until our objectives are clear and agreed. And it has also meant that we have given some certainty to businesses and investors. Consumer confidence has remained steady. Foreign investment in Britain has continued. Employment is at a record high, and wages are on the up. There is still some uncertainty, but the sky has not fallen in, as some predicted it would: our economy remains strong.

“So it was right to wait before triggering Article Fifty. But it is also right that we should not let things drag on too long. Having voted to leave, I know that the public will soon expect to see, on the horizon, the point at which Britain does formally leave the European Union. So let me be absolutely clear. There will be no unnecessary delays in invoking Article Fifty. We will invoke it when we are ready. And we will be ready soon. We will invoke Article Fifty no later than the end of March next year.”

The words in bold were said six months before the notification was made.

Perhaps six months seemed a long enough time, a fair enough and plausible deadline.

But the words in bold turned out not to be true.

The UK was not ready in March 2017.

The UK had not developed a negotiating strategy.

The UK’s objectives were not clear and agreed.

But May set the clock ticking anyway.

And now the prime minister is reduced to booking a room in Florence, without a view and at taxpayers expense, to beg EU leaders, who were invited but did not attend, for a two year extension because May had made the Article 50 notification before she was ready.

The speech might have gone worse: the Brexit negotiations are still continuing and the cabinet is still intact.

But is a speech which should never have had to have been made.

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33 thoughts on “Brexit diary – After Florence”

  1. There are three areas the EU wishes to see clarified before talks progress further; the ‘divorce settlement’, what happens to EU citizens in the UK and vice-versa, and the Irish border.

    On the last of these we got ‘no physical infrastructure’ at the Border; so no watchtowers, and presumably no number plate recognition. And that was all.

    The Border was a recognition of a problem that a century ago could not easily be solved; and it still isn’t.

    The DUP want N Ireland to be ‘the same’ as the rest of the UK, at least as far as trade is concerned. (They ignore all the points of difference — abortion, equal marriage, rates, welfare etc.)

    Others suggest a ‘Schrödingers’ N Ireland, a place that remains in the single market and customs union for trade with the Republic, while simultaneously being out for trade with the UK.

    Mrs May’s speech has done nothing to clarify the Irish problem.

    1. Good point, Korhomme, but let us not go back to the tradition of calling things happening on the island of Ireland that affect the UK “the Irish problem”. The Irish (whether in Ireland or Northern Ireland) definitely don’t own this one.

  2. For me the biggest disappointment was the lack of attention to the most difficult of the three first-stage issues. Money, after all, as you have previously pointed out, is just a negotiation, which will land somewhere intermediate between the opening positions. Citizens’ rights is eminently soluble, and with some legal creativity it surely can be solved without breaching any point of principle. But the border is a conundrum, and the UK as far as I can see has not made a single constructive proposal as to how you can control your own borders without controlling your only land border.

  3. I would be most interested to know if Jack of Kent, a lawyer and legal specialist, has anything to say on the potential legal hazards or benefits of the implications for policy of May’s speech. The politics of it all are pretty contested via leaks/false leaks etc etc, but the legal ‘take’ is interesting (if there is one!)

    1. There is hardly any “legal take”. That said: just how you have a transition with the Acquis continuing after UK no longer a member state of EU will be tricky. Ditto: how to enforce any rights under the Withdrawal Treaty.

      1. Yes, thanks. Enforcement will be an issue, but so surely will the implementation of any new EU directives during the period of ‘transition’… My own concern is if we face a serious security crisis, issues about decision-making, and the extent to which JHA and security measures from lowest to the highest can be jointly managed. (leaves a lot of the heavy lifting to Nato…)

      2. I keep wondering how easily a transition can be a) pinned down in detail (in the time available) and b) made legislative reality. There must be many laws on, say, the German statute book that refer to other member states. The law on dual nationality, for example, seems to state that citizens of member states do not have to give up their original nationality on acquiring German nationality. Presumably, these would all have to be amended to say “EU member states and the UK during a limited transition period”. Or have I missed something? That would be difficult enough if the UK accepted the whole of the acquis. If the UK tried to cherry pick the acquis, it would presumably require a lot of debate in many national parliaments before they amended their laws. They don’t all have the “benefit” of Henry VII’s constitutional inheritance.

        1. @Alastair
          Is it not the case that all the EU27 countries are required to treat EU law as overriding domestic legislation, in much the same way that the ECA 1972 requires us to do in the UK? If so, what is needed is a mechanism by which EU law imposes a requirement on member states to treat the UK in the manner required by the [yet to be agreed] transition agreement.

          That may not be completely simple to get through, but it would be a lot simpler than amending all the individual poieces of domestic legislation as you suggest.

  4. It seemed to me that she triggered Article 50 to benefit herself in the election. There’s hardly need to comment on the miscalculation.

      1. Yeah, it’s likely that after the triggering of article 50, the backbenchers were being unruly over the obvious shambles of a Tory party being unable to agree within itself how to proceed – and she saw an opportunity to increase her majority in parliament to quell the ranks somewhat. Obviously it didn’t turn out quite as she expected…

  5. It was reported that Mrs May said words to the effect of – “we want EU citizens in the UK to continue to have the same rights as they have now”. That was generally reported as a move forward towards the EU requirements, and more importantly, towards the wishes of EU27 citizens now resident in the UK. This was later apparently watered down in the David Davis interview with Andew Marr. If Mrs May meant what she said, it’s a telling indication of cabinet differences.

    However, what is mystifying so many of us is why she cannot say “EU citizens WILL have the same rights as they have now.” It’s an area where the UK government has complete control, but doesn’t seem inclined to use it.

    Fundamentally, politics is about people, and should mostly be for the benefit of ‘the people’. EU citizens in the UK are the group of people in the UK most directly affected by the Brexit vote, although they were excluded from it. They deserve both priority and generosity, but despite Commons votes and many kind words, they are not being given it.

    1. Thank you for this comment.

      One reason is that EU citizenship means rights as protected under the treaties and as interpreted in (and enforced by) EU case law. Difficult to see how that can continue to be the case once UK out of the EU.

      1. In addition, it appears that the UK proposals on citizens rights serve to limit the number of people that could be counted as having migrated into the UK. For example, removing the right to family unification for EU27 citizens resident in the UK serves to limit how many people could potentially migrate to the UK in the future. The UK negotiating position appears to be driven by anticipation of pretty arbitrary immigration targets.

      2. Is it sufficient to place the requirement in the UK-EU withdrawal treaty; i.e. if the status of EU citizens is somehow modified in the future by an act of parliament, then the treaty is invalidated and we fall back to a no-deal scenario? Or are there risks to doing this e.g. existing acts quietly modified via Henry VIII powers?

  6. I am not at all convinced that the (presumed) lack of clarity on the UK’s objectives is the reason why a transition period is now asked for.

    Even if the UK government were 100% clear on its objectives, it would still be the case that the time period between the conclusion of negotiations and the the exit date would be very short – too short for most businesses to plan sufficently. It is noticeable that the Florence speech does not call for an extension in the time allowed for negotiation. It calls for a delay between the end of negotiations and the start of the negotiated outcome. If the UK government doesn’t know what outcome it wants, the requested delay won’t help.

  7. A word in (very partial) mitigation of Mrs May.

    It was a political necessity for her to set some deadline for the Art 50 notification last autumn: her cabinet and parliamentary party were (and of course remain) deeply split over the sort of Brexit the country ought to pursue, and she could not allow that state of affairs to continue indefinitely. Would things have been better if she had given the Government a year rather than 6 months? Well, the civil service would no doubt have found the extra time useful, but there is a limit to what they can do without clear political direction, and a competent PM should have been able to provide that within 6 months.

    Her fatal mistake was calling the election and then making such a hash of the campaign. The election outcome has clearly robbed her of any ability to lead. That is the main reason why the chance of ‘no deal’ is higher than it ought rationally to be.

  8. Whatever Mrs May has indicated, some substantial compromise must be being entertained to get an EU agreement. My guess is a lot of weasel words about the future scope of the ECJ must be the first item. They will have to be very complicated and numbingly obscure if they are to be sold as a ‘success’ by the UK negotiation team as conforming to ‘Sovereignty’ requirements. That would ease agreement on what for me are a lot of other critical items.

  9. You will no doubt be aware of the High Court case brought by McClean, relating to the legality of the Conservative promise to the DUP to fund the province from the public purse and HMG’s obligations under The Good Friday Agreement to scrupulous impartiality in dealing with the devloved assembly. On the face of it, these allegations plainly have merit. If the court finds that to be the case, then presumably the government would not have the right to propose the Queen’s Speech as it could not muster a majority. What would happen, constitutionally, if this Pandora’s box were to be opened? Surely, it could make all of the Brexit discussions from the date of the election null and void.

    1. If one presumes Parliamentary Sovereignty, then it is not possible for the courts to overrule the Queen’s Speech vote. Whatever deals, lawful or otherwise, were made, the vote was taken and passed. There is no “fruit of the poison tree” in this context

      It would presumably be open to Parliament to pass its own bill to annul the QS vote, or implement other sanctions (ohai, FTPA)

  10. “The request – which may or may not be granted by EU27 – for a two year transition…”

    Why should the EU27 grant such a transition period ?

    An extension of the A50 period seems difficult enough to get passed in all 27 member states and the EU-parliament.

    Even obtaining an A50 extension may – IMHO – require some concessions from the UK e.g. no rebate? no rights to revoke A50 after March 2019 ?

  11. The significant thing about the speech, in my view, apart from the desire for a two continuation period is that Mrs May rejected all the plausible relationships the UK may have with the EU, namely full membership of the EU, membership of the Single Market on a rule-taking basis (“Norway”), limited trade agreement (“Canada”) as well as the non-solution of no relationship at all.

    It’s not just silence. It’s a decision not to take a decision.

  12. In the speech May referred to transition. But she then said she was considering using A50 to achieve it.
    A50 refers to extension of membership not transition.
    Johnson etc seem to rule out extension. Transition seems difficult to me – if Britain is not extending then it is out of the EU and all the 759+ treaties lapse (including US Open skies).

    Transition is like Brexit – seems simple at first but not so much when you get down to brass tacks.

    1. I don’t understand what this ‘transition’ is either.

      In the UK, there are two obvious transitions at present — old and new £1 coins, and old £10 notes exist beside new Jane Austen ones. Both coins and both notes are equal for a period; there are two ‘regimes’ or processes existing in parallel.

      Yet there is no successor to the single market or the customs union in sight. How can two processes exist side-by-side when one doesn’t exist — and probably can’t be invented in the next year? And as the two coins or notes are equal and equivalent (for now), how can two quite different regimes or processes co-exist — for the supposed aim of Brexit is something different to what we have today?

  13. Extension seems much more palpable than transition, given that the latter involves only obligations while the former involves rights as well (such as continued participation in EU legislation). Extension until end 2020 should make the accounting the easiest possible.

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