Why Brexit is both exciting and not exciting at all

19 September 2018

Brexit is exciting to a follower of politics: every day it seems there is something new, and one can often swing from thinking there will be a deal or no deal, or even from thinking there will be Brexit or no Brexit.

Brexit is a news event well suited to social media and rolling news.

But from a “law and policy” perspective, following the ball rather than the political players, there is less excitement, more a sense of inevitability.

The Article 50 notification was made on 29 March 2017 and so the UK will leave the EU by automatic operation of law on 29 March 2019, unless something exceptional and currently not in view happens.

The EU27 has in turn put forward a withdrawal agreement which provides them with comfort.  This will probably be agreed before March.  This agreement provides for a transition period which is, in reality, a stand-still period.  There are still aspects to be agreed but it is heading towards final form and approval.

Over at the FT today I have set out why the current Salzburg summit may not be that important in respect of Brexit: just another minor step, and one which may soon be forgotten.

Of course: this may be wrong and that politics may erupt spectacularly in such a way so as to mean Brexit will not happen, or will be delayed, or whatever.

But unless that happens in the decreasing time available, all there is to see is the grim rolling of the conveyor belt taking the UK out of the EU, despite the noise and fury of day-to-day and minute-to-minute politics.

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Why has Brexit become a legal matter when it should be a political matter?

11 September 2018

Any legal commentator on public affairs is faced with a common criticism: why don’t you understand this is all about politics, not law?

And often this is fair criticism.

An approach which is too legalistic is, of course, one which is too narrow.

(For example, I once thought no government, acting rationally and in the national interest, would do something as mad as making the Article 50 notification, for reasons which are now too apparent.)

But as Brexit continues, in a fashion, Brexit seems to become ever more legalistic.

The Article 50 process means that the UK leaves the EU by automatic operation of law on 29 March 2019, unless something exceptional and currently unforeseeable happens.

This is the fundamental legal truth which informs almost all the current politics about Brexit.

The stand-off in the withdrawal agreement is about finding exact text to address legal obligations under the Good Friday Agreement and in respect of the Irish border generally.

The withdrawal agreement also deals with legal issues such as the post-Brexit rights of UK citizens in the EU and EU citizens in the UK.

And then in respect of the future relationship between the UK and EU there re the legal issues in respect of free movement and tariffs and trade.

What, if anything, do “WTO terms” mean?

(And what, if anything, will be left of the rule-based regime of the WTO after Trump?)

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Law everywhere.

Almost every current Brexit issue now seems primarily about law: what must be done, what must not be done, and what can and cannot be done, in various scenarios.

How has this been allowed to happen?

Surely Brexit should not be about what the lawyers (and the courts) say is possible?

And surely the black-and-white texts of the withdrawal agreement and any agreement covering the future relationship are second-order problems, which should only be mere translations into formal prose of what politicians and diplomats are agreeing?

Lawyers should know their place.

But the reason why legal (and legalistic) issues have become so important – almost determinative – in Brexit is because of the complete failure of UK policy.

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The UK does not, in any meaningful way, know what it wants out of Brexit.

And the EU is following a process to safeguard its own interests and to seek not much more than an “orderly” Brexit.

There is therefore a policy void, in which the UK stumbles along.

The process is defaulting to a sequence of legal points because there is a vacuum where a Brexit policy should be.

The lack of a Brexit policy is both remarkable and disappointing.

Those UK politicians who were opposed to the EEC and then the EU have had 45 years to develop an alternative to membership.

But even the controversies over the passing of the Maastricht and Lisbon treaties did not lead to the formulation of practical counter-proposals.

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If one looks to the leaders of the Brexit campaign, we can see columnists (Boris Johnson, Michael Gove, Daniel Hannan), broadcasters and studio pundits (Nigel Farage) and talented self-publicists (you know who).

All of whom can make passionate cases in various media for Brexit, in 500 or 1,000 words.

But if you ever examine what they say carefully, there is little or no policy substance.

Their only response to any Brexit setback seems to be yet another rousing op-ed piece or an angry appearance on radio or television, but nothing more.

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Compare and contrast this policy flimsiness with other serious politicians who drove through fundamental policy reform: R. A. Butler on education, Aneurin Bevan on the NHS, Norman Tebbit on trade union reform, Lord Cockfield on the single market.

The lack of seriousness of the Brexit politicians is stark.

This is why the UK’s approach to Brexit has been reduced to a sequence of improvisations and media-driven pronouncements, from Theresa May’s Birmingham conference speech of 2016 to the Chequers proposal of this year.

All are manouveres to hold a political position, but there is not any policy vision. Even the formal Article 50 notification was given no more thought or substance than a press release.

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And so we are reduced to bickering about what the Article 50 process can and cannot permit, what can and cannot be done during a transition period, what can and cannot be done in the event of no withdrawal agreement, and what can and cannot be agreed with regard to the Irish backstop, and so on.

Law should always be servant of policy, not the other way round.

That Brexit has been and continues to be driven by legal and process issues signifies the absence of strategy and concrete policy.

Brexit has become legalistic only because insufficient effort and thought was put into making it something greater.

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The current likelihood of various Brexit outcomes

30th July 2018

Nobody knows what will happen with Brexit.

Nobody: no politician, no businessperson, no official, no pundit, no diplomat, no thinktanker, no citizen.

Nothing is so certain as to constitute knowledge.

One day, of course, when we know the outcome, there will be commentators who assert that what happened was inevitable all along.  But, as of now, those commentators cannot predict what that outcome will be.

All we have are best guesses – assessments of probabilities and possibilities.

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So how does it look today?

The most likely outcome is that the UK will indeed leave the EU on 29th March 2019.

This is because that will be what will happen by automatic operation of law, unless something deliberate is done to delay or stop it.  Nothing more needs to be done.  No further variables need to be posited.  We all just watch the UK go on to the end of the conveyor belt.

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Will that departure be with an exit deal?

This seems more likely than not, although this is far from certain.

As I have set out in another post, there are six reasons to believe a withdrawal agreement will be in place before next March.  In summary these are: that the parties (the UK and EU27) want an agreement, that it is in the interests of the parties to have an agreement, that the parties are negotiating, that there is a text which is already 80% complete, that there is still sufficient (though decreasing) time for an agreement, and that the primary outstanding issue (the Irish backstop) is more about means than an end (in that both sides agree this is about a risk to be addressed, they just have different views on how to address the risk).

This analysis may be incorrect.  But if the withdrawal agreement is done in time, it is difficult to see how the UK will not depart on 29th March 2019 – not least because the withdrawal agreement covers EU’s main points of concern.

(And if there is a withdrawal agreement, one further possibility is that the parties agree to vary the exit day from 29th March 2019 to, say, the end of the currently proposed transition period, 31st December 2020.  This would have the merit of avoiding the need for elaborate transition arrangements.  It would be sensible.  And it probably will not happen, because the UK does not do Brexit sensibly, it does it stupidly.)

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What if there is no withdrawal agreement?

Then, all other things being equal, then UK still goes on to the end of the conveyor belt and on to its post-Brexit future.

The parties could agree to extend the two-year negotiation period.  This means the UK remains part of the EU for at least a while longer, for the exit agreement to be finalised.

But the two-year period is likely to be capable of extension only if negotiations are continuing and that an agreement is in sight.  The period may not be capable of just being extended for any other reason.

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Could there be another referendum?

Putting aside that referendums are (in my view) part of the problem and not the solution, and that there is no compelling reason to believe there result will be different from the last one, there is (as I have set out elsewhere) not enough time for all the necessary legislation to be passed and in place by next March.

There would have to be an extension of time.

The EU would probably agree to such an extension, as long as the withdrawal agreement was finalised.

But as it stands, no leading politician is in favour of a further referendum; the government and official opposition are against having one; and parliament is now away until September.

There could be a referendum, but there currently is no real prospect of one.

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Could Brexit be cancelled?

It is now an accepted sign of madness to debate whether the Article 50 notification can be revoked or not.

The best that can be said is that nobody knows for certain but that it is highly likely to be revokable as long as it is done in good faith – and not just because the UK wants to re-start the clock to improve its negotiation position.

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Is such a revocation likely?

As it stands, there is no indication that this is a serious possibility.  There would need to be a profound political shift in the UK in the few months now left before the current date of Brexit.

Until recently I would have said this would be impossible.  But recently the news that, if there is no withdrawal agreement, there may be food and medicine shortages, as well as other stark and unwelcome eventualities, there could perhaps be a path opening up to revocation.

Far more likely is that the possibility of such dreadful situations will put more pressure on the UK to agree a withdrawal deal which avoids calamities after March 2019.

But, as this post began, nobody knows for certain.

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We are still in the eye of a political crisis, the outcome of which nobody knows.

All we have are probabilities and possibilities.

Brexit used to mean, in that glib phrase, Brexit.

We still do not know what Brexit will mean in practice.

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Why has Brexit come to warnings about food and medicine shortages?

25th July 2018

For some time, one common contention of those supporting Brexit is that the UK should prepare for a “no deal” Brexit.

This preparation would, it is asserted, put pressure on the EU in the exit negotiations because the UK could then threaten to walk away rather than accept a bad deal.

These contentions are all very well while they are glib, pat phrases.

But problems arise when such sound-bites need to be translated into substance.

And it now appears that those problems are arising.

In particular, pro-Brexit government ministers are now – seriously – setting out how food and medicines need to be stockpiled in case the UK leaves the EU without a deal next March.

So, after two years of negotiation with the EU, and after two years of withdrawal legislation clogging up parliament, the most tangible effects of Brexit which pro-Brexit politicians can offer are…

…impending food and medicine shortages.

Well, perhaps the ration books will be blue.

This is not to say that contingency planning is wrong.  It is also not to say that the UK is likely to leave without a withdrawal agreement (on that I am still optimistic, see my post here – but also see the less optimistic comments below).

But Brexit was not supposed to be like this.

What was sold as a form of national liberation is instead becoming a national humiliation.

Another aspect of the government’s botched approach to Brexit came yesterday with the concession in the new white paper that the European Communities Act will, in effect, not be repealed when UK is expected to leave the EU on 29 March 2019.

Through legal sleight-of-hand it will continue in parts until at least the end of the transition period expected to be on 31 December 2020.

This is legal common sense: such far-reaching legislation should not be repealed in a big bang, but dismantled slowly as appropriate.

But the same pro-Brexit politicians who are now reduced to warning of impending food and medicine shortages are the ones who insisted that the government defy legal common sense and have the 1972 Act repealed in one big bang.

Yet again, gesture and superficiality over substance and thought.

And so, as I have set out at the FT, the government now has to amend its own legislation to get round this absurdity.

Stepping back: Brexit did not have to be done this way.  As I have contended elsewhere Brexit could have been done in a sensible way, but it would have taken years and in slow stages.

This would have meant, of course, that Brexit had to be taken seriously.

But few of those in favour of Brexit, either in politics or in the media, take Brexit seriously.

Instead we had short-term headlines and claps and cheers at every unforced error by the government.

So we now have warnings of food and medicine shortages – and from those who not long ago dismissed any concerns as “project fear”.

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Six reasons why it is likely there will be a Brexit exit deal

23rd July 2018

How likely now is a no-deal Brexit?

Many serious people are worried that the UK may leave the EU next March without a withdrawal agreement in place.

Stepping back, there are six pointers to there being an exit agreement in place in time.

The first is that both sides want an agreement.

The second is that it is in the respective interests of both parties that there is an agreement.

The third is that the two sides are still negotiating.

The fourth pointer is that there is a text which is 80% agreed.

The fifth is that there is plenty of time before next March (and even before October which is preferred deadline of the EU).

And sixth, the current difficulties about the Irish “backstop” arrangements if there is not a future relationship agreement are a disagreement about means rather than ends.  Both sides accept that this is an issue to be addressed and a risk to be managed.

Putting into this perspective, the current noise about there a “no deal” Brexit should not be too disheartening.

But a call for calm is not an invitation for complacency: the negotiations can still collapse, and there is a non-trivial chance that the UK will leave the UK by automatic operation of law on 29 March 2019 without a withdrawal agreement in place. Policy and law are not often logical or sensible.

(No doubt this disclaimer will not stop a commentator saying “but you are making an assumption that…” when I am not making any such assumption.)

Overall, it is far too early to panic.

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A Slartibartfast Brexit

26th June 2018

Today we heard this Brexit news from the Secretary of State for Business Greg Clark:

To which the estimable former UK trade policy official David Henig commented:

The UK appears to now be devising a special “Norway” model for Brexit.

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 “Did you ever go to a place… I think it was called Norway?”

“No,” said Arthur, “no, I didn’t.”

“Pity,” said Slartibartfast, “that was one of mine. Won an award you know. Lovely crinkly edges. I was most upset to hear about its destruction. … Perhaps I’m old and tired, but I always think the chances of finding out what really is going on are so absurdly remote that the only thing to do is to say ‘hang the sense of it’ and just keep yourself occupied.”

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Why there should be a political party realignment after Brexit – an argument

25th June 2018

Until fairly recently there was a natural political home for those in the UK who sincerely believed in certain things.

If you believed in the supremacy of parliament, and traditional constitutional thinking generally, there was a political home.

If you believed in the union with Northern Ireland and with Scotland, there was a political home.

And if you believed in UK membership of the European Union, or even just of the Single Market, there was a political home.

That home was the political party which had its origins in the opposition to constitutional changes of 1828 to 1832, and had since then had promoted the importance of Parliament and a balanced constitution; the political party which had united with the Northern Irish unionists and defended the union with Scotland in the twentieth century; and the political party which had taken the UK into the (old) EEC in 1973 and had shaped the Single Market in the 1980s.

That party was, of course, the Conservative and Unionist Party.

Then Brexit happened.

And now there are those, who call themselves Conservatives, who want to believe parliament less important than prime ministerial discretion and the “will of the people”; who would rather have Brexit than the union with Northern Ireland and Scotland; and who want to reverse the European policy of both Ted Heath and Margaret Thatcher.

There is nothing wrong in any of this – parties and polices change over time, and that is a healthy quality in a democracy.

But one would be hard-pressed to find many lines of continuity, at least in terms of high principle – between the pre-Brexit Conservatives and the current government.

If it were not for the entrenched party formation caused by the UK electoral and party system, there would now perhaps be a realignment of British parties such as what happened after the Corn law Repeal of 1846, the Irish Home Rule crisis of 1885-86, and the electoral rise of the Labour Party after 1906.

If we were starting a party system from scratch, few would propose the current party divides.

More sensible would be a “Hard Leave” (or Leave) party and a “Soft Leave” (or Remain) party, just as the “Tories” and “Whigs” emerged as political groupings in the 1680s.

And then party politics would perhaps be become meaningful again.

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Where are we with Brexit?

 

24th June 2018

Here are five certainties about Brexit – though there are people who even doubt or dispute one or more of these.

One certainty is that on 29 March 2017 the UK notified the EU of its intention to leave the EU – though some say there was never a constitutionally valid “decision” to be notified.

A second certainty is that, unless something happens to change it, the UK will leave the EU on 29 March 2019, by automatic operation of law.  The UK will cease to be part to, or bound by, the EU treaties.

A third certainty is that the UK will not be ready to leave the EU on that date, unless there are transition arrangements in place – though some believe the UK is up for such a “hard Brexit”.

A fourth certainty is that the EU wants the transition arrangements to be part of a withdrawal agreement, and that they maintain there cannot be, as a matter of law, transition arrangements without a withdrawal agreement.

And a fifth certainty, which no one can deny, is there is not yet a signed withdrawal agreement.

So, it must follow that there must be a withdrawal agreement signed before 29 March 2019 – unless the date of Brexit day is shifted or cancelled.

So given these five certainties, what are the range of possible foreseeable outcomes, as of now? What do you think?

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That’s Not My Brexit!

19th April 2018

 

That’s not my Brexit…

…the anti-migrant rhetoric is too harsh.

That’s not my Brexit…

…the Irish border issue is too perplexing.

That’s not my Brexit…

…the trade barriers are too scary.

That’s not my Brexit…

…the promised Free Trade Agreements are all too far away.

That’s my Brexit!

That one there.

The one which cannot actually happen.

 

Hat-tip to How Apt for the mock-up.

Apologies to Usborne for the parody.

 

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David Davis and the Row of the Summer, Mark 2

13th April 2018

A day or so ago the news seemed dramatic: David Davis had “won a battle”.

The substance of the article was that Davis was, in effect, setting up “Row of the Summer Mark 2”.

You will remember that last year Davis announced that the sequencing of the Brexit negotiations were going to be the “row of the summer”.

As it happened, the UK surrendered on the sequencing point on the first day of the negotiations – and it was not even midsummer’s day.

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And now Davis is insisting again there will be another dramatic win for UK in negotiations – that the UK will force the EU to open up trade negotiations.

But, in fact, he is again reliant on the EU giving in.

And today?

This one did not even last three days.

 

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