Brexit Diary: What does Donald Tusk mean by “realism”?

26th September 2017

Today Donald Tusk, the president of the European Council, came to London.

After the meeting, Tusk’s remarks were:

I feel cautiously optimistic about the constructive and more realistic tone of the Prime Minister’s speech in Florence and of our discussion today.

This shows that the philosophy of “having a cake and eating it” is finally coming to an end, or at least I hope so.

And that’s good news.

But of course no-one will ever tell me that Brexit is a good thing because, as I have always said, in fact Brexit is only about damage control, and I didn’t change my opinion.

As you know, we will discuss our future relations with the United Kingdom once there is so-called “sufficient progress”.

The two sides are working hard at it. But if you asked me and if today Member States asked me, I would say there is no “sufficient progress” yet. But we will work on it.

And this was his tweet:-

The most significant thing, of course, is that the “sufficient progress” requirement has not been met.  This means the future relationship will not be discussed in the next (October) negotiation round at least.

But this is not the first time Tusk has talked about Brexit and realism.

This is from last September, in the months after the referendum vote:

More importantly, this is from when Theresa May’s Lancaster House speech expressly affirmed that the UK would be leaving the Single Market and Customs Union:

So the UK was becoming more “realistic” in January, and again is becoming more “realistic” now.

Over time, the speech of Tusk last October becomes more significant.  I have referred to it in my FT piece today (on transition arrangements).  It is worth (re-)reading regularly as Brexit continues.

In that speech, this passage in particular sticks in the mind as what Tusk means by “real” when he calls thing “realistic” (emphasis added):

The brutal truth is that Brexit will be a loss for all of us.

There will be no cakes on the table. For anyone. There will be only salt and vinegar.

If you ask me if there is any alternative to this bad scenario, I would like to tell you that yes, there is.

And I think it is useless to speculate about “soft Brexit” because of all the reasons I’ve mentioned.

These would be purely theoretical speculations.

In my opinion, the only real alternative to a “hard Brexit” is “no Brexit”.

Even if today hardly anyone believes in such a possibility.

We will conduct the negotiations in good faith, defend the interests of the EU 27, minimise the costs and seek the best possible deal for all.

But as I have said before, I am afraid that no such outcome exists that will benefit either side.

Of course it is and can only be for the UK to assess the outcome of the negotiations and determine if Brexit is really in their interest.

Paraphrasing Hannah Arendt’s words: “a full understanding of all the consequences of the political process is the only way to reverse the irreversible flow of history”. 

In other words, Tusk believes the UK becomes more “realistic” the closer it comes to accepting that the only “real” alternative to a hard Brexit is no Brexit.


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Brexit Diary: Michel Barnier’s significant comments today on a possible transition period

25th September 2017

Michel Barnier, the EU’s chief negotiator for Brexit has today made some significant comments on the transtion period asked for (begged for) by Theresa May in her Florence speech.

You can watch him make the comments (with English translation) here.

The comments were as follows (emphasis added):

“Ladies and gentlemen,

“First of all, a word of thanks to the Estonian Presidency and to Matti Maasikas, and to the whole team in the Embassy, and to all the Ministers doing a tremendous job – in particular in my area – in a spirit of trust and reciprocity that I would like to commend.

“In her speech in Florence, Theresa May expressed a constructive spirit, which is also ours, as the Ministers unanimously confirmed today in the Council.

“What matters now – during this limited time, when every day we are getting closer to the 29 March 2019: the day the UK will become a third country, as was its wish and demand – is that the UK government translates Mrs. May’s statements into clear negotiating positions.

“And that we discuss in detail these positions around the negotiating table.
We are therefore at a moment of clarity, particularly regarding citizens’ rights and the financial settlement. And we need to advance on finding a unique solution for Ireland. On all of these subjects, and on a few others, this is the moment of clarity.

“Since Friday, the 27 Member States have reaffirmed their unity. This was once again confirmed in the discussions in the Council today.

“And this unity is shared also by the political groups I met this morning in the European Parliament– as I do almost every week.

“A word now on the new, key element raised in Theresa May’s speech: The United Kingdom requested for the first time a transition period for a limited amount of time beyond its withdrawal from the European Union and its institutions.

This is currently not part of my mandate, but I would like to insist on a few conditions that the European Council has already set out. Allow me to refer you to the European Council guidelines, which must be read regularly – as I often do.

“1. The Union also must decide if such a period is in its interest.

“2. Any transition must respect the legal and financial framework of the Single Market. To quote the European Council: “Should a time-limited prolongation of Union acquis be considered, this would require existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply.” Those are the words of the European Council. I think that everybody should remember them.

“3. Finally, discussions on a transition – which will now take place since the UK has requested it –do not absolve us from the necessity of making “sufficient progress.” Progress on our three key issues remains more than ever necessary in order to build the trust needed to begin discussing our future relationship.

“A final point, which is also important, is that we do not mix up the discussion on liabilities and commitments from the past – which are the subjects that make up the orderly withdrawal – with a discussion on the future relationship.

“The fourth round of negotiations this week should allow us to advance on each of these key points and to get the clarity that is needed to make progress.”

There is nothing that new here, of course.  All these points are obvious if you have had regard to the EU’s approach to the Brexit negotiations.

But it is important to note that Barnier does not see the issue of transition as part of his current mandate, and that he emphasises that it is a matter for the EU to decide whether it would be in its own interest.

All because the UK is asking for a transition period does not mean the EU will grant it, and it is not up to Barnier anyway.

His quotation of the guidelines is crucial: that is the EU position on transition. The UK may not like it, but unless the European Council amends the guidelines then that is the only basis on which a withdrawal agreement can be done by the EU.

And the requirement of “sufficient progress” remains, and it remains unmet.



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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

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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Regular blogging at Jack of Kent is supported by the kind sponsorship of Hammicks Legal Information Services. 


Comments are pre-moderated and will not be published if they are not interesting or informative (preferably both).