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.


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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The Article 50 Challenge Responds

12th April 2018

A couple of days ago, I set out on here why I believed the “Article 50 challenge” had no merit.

To their credit, the campaign responded politely and constructively, and they have now issued a statement.

Read the statement carefully – as I do not want to misrepresent their position.

I do not think the statement has much force.

In particular, my “delay” point is not properly addressed, and my point about futility – that even if they “win” the problem can be quickly cured – is reluctantly accepted.

And in respect of the central issue, the statement does not deal with my contention that the “decision” was the entirety of the process (primary referendum legislation, vote, litigation to supreme court, further primary litigation, prime ministerial discretion) than any particular element.

But read for yourself their statement, and make your own mind up.

I must add it is a pity that the campaign is not publishing its legal claim so that we can see for ourselves the arguments they putting before the court.  I cannot think of a good reason for this.

The government’s lawyers will know the strengths and weaknesses of the claim – the people who will not know are those who are being invited to support the campaign.


Below in the comments Mark Hardy provides a link to what appears to be the first instance decision for the application in this case.  It is a fairly brutal refusal from an experienced public law judge.  The next stage is an oral hearing to renew the application.  I can see that going the same way.

The link is also to what seems to be the government’s case.

I cannot verify whether these are genuine but I have no reason to believe they are not.


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What is the scope of the Brexit mandate? And when will it be discharged?

10th April 2018

There are many Remainers who dispute that there is any “mandate” for Brexit.

The referendum was advisory, they contend, and in any case there was only a small majority.  They will also point to (denied) allegations of serious irregularities about the Leave campaign.  And, including the non-voters, the majority of the population did not vote for Brexit.

They perhaps do have a point, but that is not the point of this post.

This post accepts there was indeed a mandate.

The questions posed here are (1) what is the scope of that mandate and, once its scope is determined, (2) when will that mandate be discharged?


Before we can answer those questions, however, we need to be clear as to what a mandate is, and is not.

In general and political terms: a mandate is an instruction: a thing which is mandatory, a thing you are mandated to do.

In UK politics, the notion is that such a mandate usually comes from a political party having won a general election on a published manifesto.

The party then has a mandate to implement the promises in the manifesto.

This sort of mandate is not strong: manifesto promises can be disregarded, and even reversed.  For example, the poll tax was in the 1987 Conservative manifesto, and was reversed in 1990.

General election mandates are thereby quite weak stuff.  (The only practical use is that this sort of mandate means the House of Lords will not delay or block measures set out in a manifesto of the a party that wins a majority.)

Mandates from referendums (correct plural…) are different.  Even when the result is advisory (that is, there is no direct legal or constitutional consequence of the result), the mandate has a certain political force unlike a general election result.

There was a dedicated referendum on a specific question.  The answer cannot be shrugged off as easily as an unwanted promise in a broad manifesto.

But the problem is that with mandates from referendums, there is no natural expiry date.  A mandate from a general election lasts only until the next general election.

A mandate from a referendum, however, may not go stale.  Unless there is a further referendum, there is no obvious way the mandate can come to an end, other than being discharged.  Even a general election – which would be on a range of issues and policies – would not mean a referendum mandate comes to an end.

So unless it is somehow reversed, a referendum mandate needs to be discharged: what has been instructed needs to be carried out.

The mandate for Brexit

The mandate for Brexit flows from the referendum.

The referendum question was whether the UK should remain in, or leave, the EU.

On 29 March 2019, by automatic operation of law, the UK will leave the EU – unless something currently unforeseen and exceptional happens.

The UK and EU are negotiating a withdrawal agreement which would mean a “transition” period (in truth a standstill period) until at least 31 December 2020.

The UK will in effect remain in the EU even though technically it is no longer a member.

This transition means that the legal fact of Brexit (29 March 2019) is uncoupled from the practical fact of Brexit (31 December 2020).

In the early days of Brexit, the form of Brexit – hard or soft or whatever – presupposed that the legal fact and practical fact of Brexit would be close in time.

This presupposition made it easy to say that the mandate was for a soft or a hard Brexit – to interpret the referendum result as meaning more than the legal fact.

But now Brexit is to take place at law with there being no certainty as to what happens at the end of the transition period.

This makes it easier to contend that the mandate for Brexit will be discharged on 29 March 2019.  The instruction provided by the referendum result will have been carried out.

What does the discharge of a mandate mean?

When a mandate is discharged, it comes to an end.  The instruction is carried out.

This means that the mandate has no further purchase.  Nothing else need to be done.

Of course, some Leavers will aver that the referendum mandate really meant not only the legal fact of departure on 29 March 2019 but also something else, which should happen at the end of the transition period.  “Brexit plus” in a way.

But the connection between the legal fact and practical fact of Brexit makes such a position more difficult.

And if the mandate is discharged on 29 March 2019, and thereby has no further purchase, then what happens at the end of the transition period is on a clear slate.

My preference would be for an Association Agreement, whereby the UK remains part of the Single Market and Customs Union, even though formally outside EU institutions.  A conversion of the transition agreement into a permanent relation.  (I am not personally fussed if the UK is a formal member of the EU or not.)

Others may want the UK to rejoin as soon as possible.  Some Leavers may want to have more divergence.

Whatever: each of these options can be addressed on their merits, and the transition arrangements mean that the “ring is held”.  What will be missing, because it will be discharged, is a “mandate” which prioritises one option over another.

Why Remainers should think beyond 29 March 2019

Brexit may not happen.  The politics may change, which means the UK does not leave the EU as a legal fact on 29 March 2019.

But if that outcome is unlikely, then the issue becomes what happens at the end of the transition period.

And that debate will be better if the mandate is regarded as having been performed.  Each proposal can be assessed properly.

That is why I think those few Remainers disputing there was ever a true mandate are mistaken, like generals fighting the battles of the last war.

A stronger position for those who want the UK to rejoin the EU, and for those like me who want a close Association Agreement without formal membership, will then not to deny the mandate but to accept it, and then move on.

This is not to say that anyone should “get behind” Brexit.  Don’t do that, kids.  Only people who believe in Brexit should get behind it.

Instead let the Leavers have their mandate, and then move beyond it.

Unless Brexit is somehow stopped before 29 March 2019 the fundamental question becomes what follows the transition period.

And to accept the mandate is over and done with will place contributors in that debate in a stronger position than those who deny it ever existed.

The key is to properly scope and then discharge the Brexit mandate, rather than to deny it ever existed.


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Does the “Article 50 Challenge” have any merit?

9th April 2018

Does the “Article 50 Challenge” have any merit?

Some Remainers are hopeful.  The hope – a high hope – is that this legal challenge could stop or substantially delay Brexit.

The website for the campaign for this case is here and the campaign’s Twitter account is here.  Do click and have a look, as in the heated debates on Brexit it is important that things are not misrepresented.

You will see from the campaign’s website that there is a hearing on 12th June 2018, which will be nearly two years after the referendum result and fifteen months since the Article 50 notification was given to the European Union.

The hearing is a renewed application for permission to bring the claim.  This means that the claim still has not got off the ground.  The first attempt – “on the papers” – did not obtain the court’s permission to bring this sort of “judicial review” claim.  Any claim where permission is refused on the papers can be renewed at a oral hearing.  That is what is happening in June.

This means that any substantive hearing on the actual merits is still some way off, if permission is granted.  Such a hearing may be in June, or it may be some time after.  And all this is while the clock is ticking, with the UK to leave the EU by automatic operation of law on 29th March 2019 next year, unless something exceptional happens.

I have not seen the claim form or any of the court papers.  So I do not know for certain how the claimants are dealing with the timing issues, or with the procedural point that such claims should normally be brought within three months of the decision (or lack of decision) that the claimant wants the court to review.  It seems to me that, regardless of the substantive merits of this challenge, time is against the claim.


But what if time was not an issue?  Would it otherwise be a good claim?

Again I have not seen the court papers.  There may be some ingenious and compelling (and it would have to be both) legal arguments made in the claim which mean that the court would grant a remedy, and somehow stop or delay Brexit.

All this post can do is look at the claim from first principles and to see if the basic proposition is sound, or not.

Has the UK not actually decided, in accordance with its constitutional requirements, to leave the EU?


The starting point is not any UK constitutional text.

(Please note that, contrary to conventional wisdom, the UK does have a constitution, and most of it is written down – in statutes, cases, and books of authority.  The UK does not have a codified constitution.)

The starting point is Article 50 of the Treaty on European Union.  You can read it here.

The key provision is Article 50(1):

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

The argument is that the UK has not decided to withdraw from the EU “in accordance with its own constitutional requirements”.

That is to say that at no stage in the legal and political process was there a distinct decision.  The referendum was advisory; the statute providing for the notification did not compel the prime minister to exercise it; and the notification was only in respect of an intention for the UK to leave.

At no point, the argument goes, was there a decision: just a lack of decision which was nodded through.

I hope this does not misrepresent the argument (and if it does, I may amend what now follows, as there is no point arguing against a contention which is not being advanced).


In favour of the claim, one has to concede that there was no point where anyone said expressly: “this is the decision for the purposes of Article 50(1)”.  No doubt this was considered by government lawyers but either they advised against it or their advice was not followed.

And no doubt, those studying constitutional and administrative law will be invited in essays to locate the decision for the purposes of Article 50(1).  On any view, it will long be a fascinating question for the academic lawyer.

But my view is that the claim rests on a misunderstanding of Article 50(1).  And it is also my view that there has been a decision in accordance with the UK’s constitutional requirements.

(These are only my views, and may well be wrong; and the correct legal position on this will anyway be what a court says it is, not what I think it is.  That is how law works.)


Article 50(1) provides that the decision has to be made in accordance with a member state’s own constitutional requirements.

This means that the EU’s courts will now treat it as a question of UK law.  It will not be for the EU, or any of its institutions, to gainsay what is a constitutional requirement.  That will be a matter of domestic law.

So what is, in respect of the UK, a “constitutional requirement”?

What is certain is that there is no formal and express list of constitutional requirements.  There is not a “Constitutional Requirements Act” or similar legal instrument with a process to be followed.

Constitutional requirements is a vague term, and this is part of the reason why I think the Article 50 challenge is a weak case.  Article 50(1) is not precise enough.  Many things could fit the bill.


But even if Article 50(1) was sufficiently precise, my view is that there has been a decision in accordance with the UK’s constitutional requirements.

First, there was a referendum.  This referendum was under a special statute, the European Union Referendum Act 2015, which was dedicated to asking the voters a specific (and carefully worded) question.

Or course, the referendum was advisory and not mandatory.  (No doubt people are scrolling down to leave a comment to that effect already.)  For what it is worth, I was one of the first to point out in the mainstream media – before the referendum took place – that the referendum was not legally binding.

But what it did mean is that Parliament (in a parliamentary system) had expressly legislated to refer the question to the electors.  Both Parliament and the electors had been engaged.

And the electors voted, in this dedicated referendum under special primary legislation, by a majority that they wanted the UK to leave.  This in turn created a political (if not a legal) mandate.

Second, there was litigation, contested by the government, which went all the way to the Supreme Court on how the notification should be made – whether further parliamentary approval was required or not.

And a majority of the Supreme Court held that legislation was needed. (A minority held that not even legislation was needed.)

In paragraph 122 of the judgment, the majority said:

“122. What form such legislation should take is entirely a matter for Parliament. But, in the light of a point made in oral argument, it is right to add that the fact that Parliament may decide to content itself with a very brief statute is nothing to the point. There is no equivalence between the constitutional importance of a statute, or any other document, and its length or complexity. A notice under article 50(2) could no doubt be very short indeed, but that would not undermine its momentous significance. The essential point is that, if, as we consider, what would otherwise be a prerogative act would result in a change in domestic law, the act can only lawfully be carried out with the sanction of primary legislation enacted by the Queen in Parliament.”

Note that the Supreme Court here sticks to what is needed under Article 50(2).  The judgment is silent on what the Article 50(1) decision is.  It keeps to the far more concrete question of how the notification is to be given.

Third, there is then another primary statute, which is heavily debated in both Houses of Parliament, which expressly provides that the prime minister can make the Article 50(2) notification.

The short title of the statute is:

“An Act to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.”

One would think that Parliament conferring power on the prime minister to make the Article 50(2) decision means that Parliament accepts that the prior Article 50(1) decision has been made.

The Act has one operative section:

“1. Power to notify withdrawal from the EU
(1)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.
(2)This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.”

Section 1(2) indicates that this Act cannot be repealed implicitly or by accident, that the courts should treat it as a constitutional statute.

The prime minister then makes the notification on 29th March 2017.


So what do we have?

What we have is a process where the voters have been asked a specific question under dedicated primary legislation, where the Supreme Court has held that a second dedicated statute is required for the notification to be made, where Parliament has passed a dedicated statute in accordance with the Supreme Court’s judgment to confer a power on the executive, and that the executive exercised that power.

Parliament, Voters, Supreme Court, Parliament again, Prime Minister.

Each of these have been engaged.

The Supreme Court checked the government.  The government required parliamentary approval.

The “decision” under Article 50 is difficult to locate but each major element of the UK constitution (other than the devolved powers, which the Supreme Court unanimously held did not have any formal role in this decision) has been involved.

Given the vague scope of Article 50(1), there can be no serious doubt that two key constitutional requirements of the UK – that the executive is answerable to parliament and the courts, and that primary legislation is required for constitutional decisions – have been met.

There is no one neat action which explicitly ticks the box “constitutional requirement”.

But for a specific question to be referred to the electorate by primary and dedicated  legislation, which is then answered, and for the courts to insist that a further primary and dedicated legislation be passed before that answer is notified, looks like a decision to me, and one taken collectively by voters, Parliament, the Courts and the executive.


But even if I am wrong (which I may well be) and the Courts now hold that there was not a decision under Article 50(1) then where does that get us?

Not very far: for the problem could be quickly cured by primary legislation rushed through a Parliament where the majority were elected in 2017 on manifesto promises to implement the referendum decision.  And even if that legislation could not be made retrospective, it would only delay Brexit not extinguish it.

So even if the claim somehow succeeds, the victory would be brief.


The Courts have already held what was required for the Article 50(2) notifictaion to be made, and this has been complied with.

There may be ways to stop Brexit.  But those ways are now political, and not by litigation.  And that is how it should be.


UPDATE – 9th April 2018, 9.08am

The Article 50 challenge campaign has responded.

UPDATE – 11th April 2018

The A50 Challenge campaign has set out its full response here.

Kudos to them for this polite and constructive response.

Brexit need not be all about yelling at each other.

Look at both, and make your own mind up.



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Brexit and the contest between process and publicity

1st March 2018

When historians one day seek to make sense of Brexit what will be the most useful documents for them to look at so as to understand the respective approaches of the UK and the EU?

For the EU, it will be straight-forward.

To understand how the EU approached the UK’s departure from the EU, the historian will be able to look at position papers and other official documents.

Of course, these documents will need to be supplemented by other evidence not in the public domain.  But there has been a remarkable consistency between what the EU has said about Brexit and what has done.  One set of public statements has led to another.

For example, you can trace most parts of the draft Withdrawal Agreement back to the December joint report, and then in turn back to the position papers from the negotiation.

You can then trace the structure of those position papers back to the EU’s approach to sequencing, and then all the way back to the first press releases after the Brexit vote.

This is not to say that the EU’s approach is correct.

There are legitimate concerns that, for example, it may be over-reaching its hand on the Northern Ireland issue.

And if the EU does not end up with a deal at all, because what it offers is not acceptable to the UK government then all of this will have led to nothing.

But the one thing which is most apparent is that to understand the EU’s approach to Brexit means you have to understand process.

The EU is process-driven. That is why one can say that “Brexit by timetable” is taking place.

But what should the historian look at to understand the UK’s side?

It would not be many official documents. Most of the UK’s formal documents on Brexit have not been impressive.

There was, for example, a rushed and improvised white paper (published just so as to meet a Labour demand before the Article 50 vote).  The white paper has hardly been referred to since.

And the less said about the sector analyses the better.

Even the Article 50 notification went on for pages when only a couple of paragraphs at most were needed for the document to do its job.

The historian would have to look elsewhere.

The historian would have to look at Theresa May’s speeches – especially the Conservative Party conference speech, the Lancaster House speech, and the Florence speech.

The historians would have to look at newspaper articles, especially those by Boris Johnson and Michael Gove.

But most of all a historian would need to look at the rhetoric, on both sides, of the relationship between the government and its supporters, on the backbenches and in the media.

For, in contrast to the EU’s emphasis on process, the UK government’s emphasis has been on publicity.

This is not to say this is a bad thing: a government taking controversial decisions is right to mobilise and maintain support.

The problem is that this can lead to a mismatch: in their approaches to Brexit, the EU and the UK government are often like vessels passing in the darkness.

(And this is not an issue unique to Brexit.  In America, Trump and his political supporters seem to believe that tweets and memes are how to deal with the slow methodical march of Robert Meuller and the FBI.)

Process is not everything: a bureaucracy rarely wins over hearts or even minds.

And so when process prevails, as it usually will, the populists can seek to discredit it and blame it for the populists’ own failings.


Regardless of the outcome, what the UK and EU do not have on Brexit is any genuine engagement.

And this is so needless.

The UK has an outstanding civil service and diplomatic service.

UK officials have negotiated opt-out after opt-out with the EU.

It was even a UK (and Conservative) member of the European Commission who put in place the Single Market in the late 1980s.

UK officials are more than a match for their EU counterparts, but only if they are allowed to be so.

But on Brexit, the UK has thrown away this benefit.

David Cameron did not allow the civil service to prepare for the possibility of a “Leave” vote – even though that was one of two foreseeable outcomes of a binary referendum.

Theresa May created two new pop-up Whitehall departments for Brexit, both of which have not fared well, instead of using the inherent strengths of the Foreign Office, the Treasury, and UKRep.

She then carelessly lost Sir Ivan Rogers because she did not like what he had to say.

Just this week, Liam Fox has derided a former senior trade department official.

It is almost as if that UK ministers do not want to do well in the negotiations with the EU.  They instead just want to win support for their position.

But to do well against those who are process-driven, you need to be able to match them.  And on Brexit, the UK could have been the equal to the EU in the negotiations.

So if the UK does not do well with Brexit, it may well be that a fair-minded historian does not conclude that this was because the UK “failed” – but because the UK did not even engage.


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Where are we now on Brexit?

31st January 2018

My apology for the lack of posts: I was unwell from before Christmas until a few days ago.

There is everything, and nothing, to say about Brexit.

The same hard facts are still there, and looming.

The UK will leave the EU by automatic operation of international law on 29 March 2019, unless something not now in view happens.

The UK government does not know what it wants, and there is no UK Brexit policy worth the name.

The EU27 do know what they want and, again unless something not now in view happens, that will be what the UK gets – both in terms of transition arrangements and future relationship.

There is less and less time for there to be any further referendum before 29 March 2019.  Nor is there any real time left for a “Remain” reversal of the Brexit process.

Any “transition” arrangements will be for the the full acquis of EU law, and all the paraphernalia of EU obligations, but without any formal presence in any institution – this is, as somebody has said, vassal status.

And it remains (bleedingly) obvious that the Article 50 period should be extended substantially beyond 29 March 2019 to give UK more time, but this seems as politically impossible as ever.

What is changing is the steady reduction of time, and the widening awareness of UK’s inability to address the problems.

All this, and nobody knows what will happen.


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The subtle rhetoric of Barnier’s now-famous graph

4th January 2018

The now famous graph of the EU’s Brexit negotiation team is an impressive exercise in subtle rhetoric.

The UK’s “red lines” are explicitly stated.

And as one goes downward (of course) from left to right one can only blame the UK for adopting such positions.

At the base of the stair is where the UK must end up, by reason of its “red lines”.

But this outcome is not only because of the UK’s positions.

The EU also has its own red lines – but you will not see them in the graph.

For example: all four freedoms, the single market is indivisible, no cherry-picking, etc.

Those red lines are taken as given.

And so it is the UK which looks unreasonable and indeed foolish.

Of course, there is something in this: the UK has adopted a number of positions and seems unwilling (or unable) to think through the implications of those positions.

The graph shows those implications well.

But what is not said explicitly is more important than what is said – and these unstated red lines exemplify how the EU has (so far) controlled the terms of the Brexit negotiations.


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