Brexit: How to follow the European Union (Withdrawal) Bill – a practical guide and introduction

12th September 2017

Last night the House of Commons voted on the “second reading” on the European Union (Withdrawal) Bill.  This is a general vote on the principle of the legislation.

MPs voted in favour of the Bill, and it now will be considered in committee where the clauses will be examined and amendments considered.

You can follow the Bill as follows.

First: you should look at (and perhaps even bookmark) this page on the parliament site.  This will show the progress of the Bill and will link to parliamentary materials.

Then: read the Bill – it is a short Bill, with only 19 clauses in its initial (vanilla) form (here).  It is worth reading these 19 clauses.  You will then see what much of the fuss is about.

The schedules (lawyers usually say it with a “sh” when talking about legal instruments) are more substantial, but the effect of the schedules is provided for by the operative clauses.  The schedules “hang below” the relevant clauses, so to speak.  One key schedule is Schedule 7, which provides (supposed) safeguards on the proposed wide discretionary law-making powers for ministers.

You can then look at the Explanatory Notes (here).  These are not part of the Bill but are a guide to what is intended by the government by each clause.  Only a mad person reads these like a novel from beginning to end. Instead, focus on a clause or a schedule and cross refer, as necessary.  In other words, treat explanatory notes like a series of footnotes.

(Some may say that the less clear a Bill the longer the Explanatory Notes, and that clear legislation should not need no explanatory notes. And they would have a point.)

There is also, for completists, a 58-page Delegated Powers Memorandum (here). This should only be looked at if you have a serious interest in the delegated powers. It is heavy duty stuff.

The House of Commons Library (an excellent group of people and an adornment to our constitution) has provided a research briefing on the Bill. This is an essential resource,

The briefing is at the link at the bottom here.  This briefing is, in general, your best and most impartial guide to the Bill.  Read the introduction and general sections, though (as with he Explanatory Notes) use the detailed comments as footnotes when looking at individual clauses.

It is worth checking with the House of Commons Library research briefings page from time to time to see if there is any further briefing as the Bill progresses.

As for informed commentary, you should keep looking at the blog of the estimable Professor Mark Elliott.  He is not only a leading legal blogger, he happens to be one of the UK’s leading experts on constitutional law and is legal adviser to the House of Lords Select Committee on the Constitution.  His Twitter account is here.

Any useful commentary will be linked to on his special and regularly updated resources page on the Bill.

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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

Criticising UK’s Brexit difficulties is like following a crap football team

4th September 2017

Once upon a time Aston Villa were the winners of the European Cup.

A year later Villa defeated Barcelona for the European “super cup”.

Those were the days.

Villa are now in the bottom half of the “championship” (the old second division), after a decline over many years.

Most Villa fans will have their view as to the biggest marks of the decline.

Mine, for what it is worth, was the awful, unforgivable decision in 2009 to field a weakened side in Moscow.  Other Villa fans will have their examples.

But nobody will suggest that such criticism means that Villa fans are not really Villa fans and that they actually want opposing teams to win.

Following an under-performing football team is not fun, but it does not make you any less of a fan when you point out the under-performance.

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Watching the UK government deal with Brexit is a lot like watching Aston Villa in decline.

Unforced error after unforced error, as the side does ever more badly over time.

The memories of greatness only making things worse.

Some suggest that criticising the UK’s many mistakes over Brexit is to be on the side of the EU.  That one is “talking down” the UK and “cheering on” Juncker, Barnier, or whoever.

But a person can be critical of a thing, and express that criticism, without it meaning that the person is opposed to it.

One suspects the people expressing such views have never followed a crap football team.

There is no pleasure in watching the government’s foreseeable difficulties on Brexit, just as there was no pleasure in watching Aston Villa’s foreseeable relegation.

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Brexit, news and information

22nd August 2017

Many deride and dislike the “lobby” system, based on Whitehall briefing and ongoing relationships between Westminster journalists and contacts.

But if that is where the useful information is, then it (sort of) works.  It is the horse for the course.

The thing, however, about Brexit is that often little useful information is currently in Whitehall/Westminster – and so there is sometimes bluff and bluster instead.

In this way, Brexit simply does not suit the lobby model of political news reporting.   And that is why disproportionate space is currently given to empty off-record stuff.

This is not to criticise the lobby.  There are many great journalists.  But the key information is not now often with Westminster and Whitehall contacts and sources.  It is instead coming from Brussels.

The Brussels desks of most UK news organisations are now better guides to how Brexit will affect the UK than anyone with lobby passes.

But the UK government still thinks domestic media are the most important audience.  Ministers are approaching Brexit with a “lobby” mentality.

And so we have daft embargoes and Davis giving desperate interviews, while UK lags behind on position papers and proper preparation.

UK may still get its Brexit act together, but ministers need to stop thinking only in Westminster/Whitehall/lobby terms.  The true battleground is elsewhere.

Many say Percival lost Singapore because things were pointed in the wrong direction (though some say otherwise).  Brexit ministers risk making a similar mistake.

(This post is based on this thread.)

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Brexit and daft embargoes

20th August 2017

To appreciate the sheer ridiculousness of yesterday’s “strict” press embargo of the Department for Exiting the European Union (DExEU) you need to know a little about the background to the current Brexit negotiations.

Transparency of the negotiations

The exit negotiations are between the UK and the European Commission, which is representing the EU.

On 19th June 2017, the first formal day of the negotiations, both sides agreed the terms of reference.  This is a joint document,  Click here to see it hosted on the DeXEU website.

The terms of reference document is short but significant, and it is worth the the time to read in full.

In it you will see that it is envisaged that negotiation texts be circulated in advance of each round of negotiations (paragraph 6) and that the default for the negotiations will be transparency (paragraph 11).

This joint stance on circulating texts and transparency is in contrast to the earlier reported comments of the prime minister Theresa May at that infamous Downing Street dinner:

May had wanted complete confidentiality for the live negotiations.  She was told this was not possible.  What this means is that as late as April it seems the UK were not intending to publish any meaningful documents during the negotiations.

Position papers

The European Commission (and later the UK) met the dual requirements that negotiations texts be circulated and there be transparency by the publication of “position papers”.

Click here for the three web pages (so far) of published Brexit negotiation documents from the EU Commission.

You will see several position papers, the first being on the financial settlement published back on 29th May 2017.  You will also see there has been a steady supply of other position papers since.

The European Commission publishes these position papers without much fanfare.  Publishing them on their website serves the purpose of everyone in the EU27 remaining states, the EU institutions and in the UK seeing the position papers at the same time.

Some of the position papers are on the big topics of the financial settlement and citizens’ rights (the first two to be published).  Others are on mundane (though still necessary) topics.

As positions develop then a fresh position paper is provided.  In this way everyone can keep track of the EU’s intial and evolving positions on each aspect of the negotiation. The substance of the EU’s positions is kept in plain sight.

Now look at the UK’s approach, click here.

Until last week there had only been five.  Now there are six.  There still is not one on the financial settlement (the European Commission has published two).

You will see the UK has also (somewhat optimistically) published a paper on the future partnership with the EU – even though those negotiations will not begin until the EU is satisfied there is “sufficient progress” on the exit issues.  You will note this paper was not published as a position paper but is alone under another heading.

One UK position paper is only four pages big, including one blank page.  It almost looks like it was published just so the UK could be seen to have published a position paper.

Over time, you should (ideally) be able to see the parties heading towards agreement on each issue by watching the position papers evolve.

The provision of position papers is therefore straight-forward and expected.  It is what the UK has agreed to do, and has to do, for the Brexit negotiations to work at all.  The position papers are important, but they are not special.

The DExEU “strict embargo”

Yesterday (a Saturday), the DExEU press office sent out an email with the eye-catching heading:

STRICTLY EMBARGOED UNTIL 00.01 SUNDAY 20 AUGUST

Gosh.

Not just an embargo, but a “strict” one.

This must be important.

And it was an embargo of midnight at the weekend.  This means that the press release is for the benefit and convenience of the Sunday press.

There is nothing inherently wrong with embargoes, and they sometimes serve a useful purpose (for example, when there is a detailed report to be published and reporters need time to read into the background, or when a NGO wants to ensure wide coverage for an item by ensuring key information is provided on equal terms to a number of outlets).

So what warranted this “strict” embargo at the weekend, designed to maximise coverage in the Sunday papers?

The rest of the email was as follows:

UK STEPS UP PRESSURE ON EU WITH NEW BATCH OF POSITION PAPERS

A fresh wave of papers outlining the UK’s negotiating strategy on key issues related to Brexit and Britain’s future relationship with the EU will be unveiled this week.

With the UK stepping up pressure on the European Commission to move talks to the future partnership, two formal position papers will be published on the continuity in the availability of goods on the market, and confidentiality of documents.

The goods paper will see the UK will press the Commission to widen the narrow scope it has placed on the availability of goods on the market, via its own paper on this issue.

The UK is calling for services associated with goods to be included in withdrawal discussions as well, believing that this is the only way to protect consumers and businesses that trade before Britain leaves the bloc.

Services are essential for production of goods, for their sale, distribution and delivery, and for their operation and repair.

One example is that some engine manufacturers allow customers to pay a fixed charge per hour of operation, with the company looking after all maintenance and repairs. And with lifts, manufacturers are responsible for their installation and servicing.

In the EU, services inputs in products accounted for around 40 per cent of the added value in manufacturing exports in 2011, demonstrating the importance of minimising uncertainty for services as well as goods sectors.

Last year services made up 80% of the total UK Gross Value Added (GVA), and 74% of the EU’s GVA — underlining how important it is to discuss services early on in the negotiations.

The UK will also set out its position this week on ensuring that official documents and information exchanged between the UK government and the EU and other member states are protected.

In a busy week ahead, there will be further papers on; future civil judicial cooperation; proposed mechanisms for enforcement and dispute resolution once the European Court of Justice no longer has direct jurisdiction in the UK; and data protection.

This latest cluster of papers come a week before the next formal negotiating round, which will be led by Brexit Secretary David Davis who said:

“This week we set out more detail of the future relationship we want with the European Union, putting forward imaginative and creative solutions to build a deep and special partnership with our closest neighbours and allies.

“In the coming days we will demonstrate our thinking even further, with five new papers – all part of our work to drive the talks forward, and make sure we can show beyond doubt that we have made sufficient progress on withdrawal issues by October so that we can move on to discuss our future relationship.”

On the sequencing of talks, David Davis added:

“With the clock ticking, it wouldn’t be in either of our interests to run aspects of the negotiations twice.”

 

The mention of “stepping up pressure” is laughable: the position papers to be published are expected and straight-forward.  They have to be provided before each round, else the negotiations cannot meaningfully carry on.  There would be nothing to talk about.

And in view of the failure so far of the UK to match the output of the EU in providing position papers, this was not to “step up” pressure but to relieve pressure.  It is the UK catching up.

But the announcement was not even of the position papers. It was an announcement about an announcement.  The “strict” embargo was of nothing other than a trailing of something fully expected but yet to come.  It was not a news story.

There was no good reason for this to be subject to an embargo, let alone a “strict” one.

The “notes to editors” did not mention these were just yet more position papers in an agreed process, joining many other position papers.

The intention therefore appears solely to be to mislead the time-poor weekend news media into providing “stepping up pressure” headlines and coverage.

Back in November 2016 I contended (at the FT) that, in reality, the UK government was not seeking to negotiate about Brexit with the EU, but with the UK media and its own backbenchers.  The UK seems to want more to convince its domestic audience not the EU.

But like Percival at Singapore, the UK government is pointing things in the wrong direction.

The UK government seems not to be able to grasp that the true negotiation is with the EU and not the domestic media or its political supporters.

And while the EU were preparing all its position papers, the UK instead had a (needless) general election – bringing to a temporary halt any serious UK work on the UK’s negotiating positions.  The EU did their spade work while UK ministers were busy doing other things.

A serious and sensible approach to Brexit would mean that the UK government stopped its silly games of “strict embargoes” and midnight news releases, and without fuss just got on with the job of formulating and producing position papers for a collaborative negotiation with the EU.

Presenting what should be a business-like process as “stepping up pressure” indicates a fundamental misunderstanding and weakness in the UK position.  It is seeking media clamour to mask the lack of detailed work so far.

I happen not to be against Brexit in principle: but the UK government’s current approach is counter-productive, and it makes it unlikely that Brexit will go well, at least for the UK.

And “strict” embargoes over trivial announcements of yet-to-be published but expected routine position papers so as to spin a “stepping up pressure” narrative can only be described as pathetic.

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Brexit round-up – James Chapman, Repeal Bill and Francovich, Trade, Customs, ECJ and domestic courts

11h August 2017

As I am taking a break from active tweeting (and am instead on Twitter just to promote my posts and so on), this is a round-up of interesting links and tweets on Brexit and similar stuff.

 

The Brexit debate

James Chapman continues to throw grenades:

 

Brexit Repeal Bill

The Times does a good report on the (obvious?) point that once EU law eases to have effect, remedies under EU law such as “Francovich” damages (for UK’s failure to properly implement EU law) are no longer are available.

 

Brexit issues – trade

Good piece at the Financial Times by Gemma Tetlow on the practicalities of Brexit without a customs deal:

 

Brexit issues – European Court of Justice (and domestic judiciary)

Stonking editorial at Financial Times (nothing to do with me!) on Brexit and domestic judicial independence.

 

And finally…

 

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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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A mandate can be either democratic or irreversible, but it cannot be both – an argument

31st July 2017

Over at the FT the other day I did a post about mandates and sovereignty.  Many people seemed to find the points in it interesting, and so (outside of the paywall) I will set out here in more detail the argument I made there about mandates.

The proposition I advance is in essence:

a mandate can be either democratic or irreversible, but it cannot be both.

The argument in support of this proposition goes as follows:

1.  To say a referendum result provides a mandate for an issue once and for all is to say it is irreversible.

2.  The position in (1) contrasts with mandates from general elections.  Usually in UK politics, the result of a general election does not mandate any MP to vote for anything.  The only real constitutional effect of a mandate from a general elections is that, by convention, any mandated measure cannot be blocked or delayed by the House of Lords (the “Salisbury doctrine”).

(Something is said to be mandated from a general election if it is set out in the manifesto of a party which obtains an overall majority.)

3. Following from (2): (a) opposition MPs can vote against measures in the winning party’s manifesto, (b) no government is obliged to follow its own manifesto (and often does not), and (c) in certain circumstances, a government can abandon and reverse policies where there is a mandate without waiting for a general election.

(A classic illustration of (c) is the poll tax, for which a Conservative government had a detailed mandate from the 1987 general election. Few sensible people, if any, would have argued that the Tories were bound to keep this tax in 1990 because of “democracy” when it came to be seen widely as wrong in principle and unworkable in practice.)

4.  Following from (2) and (3), mandates in UK politics are usually reversible, if they are followed at all.

5.  In any case, anything “mandated” by a general election result will always (and logically) be reversible at another election.

(In the case of (3)(c), there would not even be the wait for a general election.  For example, nobody in 1990 was saying about the poll tax: “let’s wait for the next general election for a mandate for something else”.  The policy was rightly ditched mid-parliament.)

6.  Following from (2), (3), (4) and (5) if a policy is (a) wrong in principle and (b) unworkable in practice then it is difficult to see how any perceived mandate from a general election can override that.

7.  Mandates also can come from referendums. The questions to now ask are: What should be the position with mandates from referendums? Should such mandates have an irreversible quality which a mandate from a general election does not?  And if it has an irreversible quality, would such a mandate still be “democratic”?

8.  In respect of whether such a mandate would be democratic, one can apply the famous tests of Tony Benn.  He suggested five tests for anyone with power: What power have you got? Where did you get it from? In whose interests do you use it? To whom are you accountable? How do we get rid of you?

9.  It is the last one that is problematic about referendum results, and prompts the following questions: How do you reverse a referendum result? Can an electorate at one point in time bind all future electorates in a way that no parliament could ever do?  Why should a majority at point A have more inherent power than an electorate at point B? These questions all point to one plausible answer: to say a referendum result is mandatory for all time and not reversible in any circumstances is to rob future electorates of their power.

(As a side note, no Brexiteer – rightly – seems to believe that the UK was bound for all time by the 1975 referendum result.)

10.  If the position at (9) is valid, then for a referendum mandate to be democratic, it must be capable of being revisited (either to affirm it or reverse it), else it cannot be democratic.  One electorate would have dictated a measure to all future electorates.

11.  If the position at (10) is valid, this is not to suggest a second referendum (see my post here – my view is that any such decision in a parliamentary democracy should be made, well, by parliament).  Instead, if the position at (10) is valid then it means that referendum results (or anything else) should not be given the status of an absolute mandate in a democracy, for to do so would thereafter render that polity as undemocratic.  This is because something will have been done that cannot be undone, whether by voters directly or through parliament.

12.  And so on the basis of the positions above, a mandate – whether by means of a general election or a referendum – can be either democratic or irreversible, but it cannot be both.

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The Cummings exchange – which news sites credited it, and which did not

4th July 2017

Just as an exercise in how these things work, it is interesting to see how my Twitter exchange with Domininc Cummings was picked up by news sites.

Both the BBC and the Evening Standard sites provided credit for the Twitter exchange.

The Huffington Post embedded the reply tweets but without any further credit.

Disappointingly, both the Independent and the Mirror reported the exchange without providing any credit at all.

That is a poor show.

There is no problem reporting tweets, of course – they are public domain – but to take an exchange which was instigated and followed-through by a commentator without crediting them cannot be right.

For what it is worth, I always go out of my way to credit other media sites (and tweeters and commenters generally) when I can.  News and comment is largely collaborative exercise after all.

UPDATE

Mirror has amended its copy.  3000+ shares later of the piece later, but still appreciated.

FURTHER UPDATE

The Independent has finally updated its story to include credit – 13k+ shares later, but it is the thought…

“In some possible branches of the future leaving will be an error” – an exchange about Brexit with Dominic Cummings

4th July 2017

Yesterday evening, I had a tweet exchange with Dominic Cummings, the architect of the (official) Leave campaign.

His candour and openness was striking.

Many regard him as a controversial and negative figure.  But there is none of the platitudes and evasions of the politicians of both sides on Brexit.  It is worth, therefore, reading what he has to say.

The tweet exchange was prompted by his tweets from June, linking to a blogpost.  (I happened upon these while researching something.)

That was last month.  I wondered if he still held this view.

He must get a lot of queries and I did not assume he would respond.  But it was a sincere question.

(My own view is that (a) Brexit is complex, (b) the UK government is not equal to the task, and (c) the UK government is somehow making it worse for itself.)

He did respond.

He then added.

Brexit was necessary, though obviously not sufficient.

This is an interesting view, and I RTd the conversation above as it seemed worthy of wider discussion.

I then asked him about the referendum vote itself.

(Most Brexiteers will defend the Leave vote absolutely; many Remainers will be as equally disdainful.)

His reply was swift, and commendably frank.

“In some possible branches of the future leaving will be an error.”

In other words: Brexit was not bound to be a success – Brexit could be a mistake.

(Note my question had been about the referendum result, but the second sentence of the replt went to Leave more generally.)

He added:

In the meantime, I had RTd the “Lots!” tweet- again as I thought it would be of wider interest.

He was unimpressed with some of the responses.

I said I thought this response was good.

He responded.

He also made wider this observation about the responses.

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Postscript.

I disagree with Dominic Cummings on many things to do with Brexit.

A couple of polite questions had elicited some frank, informative and interesting replies. And this dialogue in turn led to wider discussion.

One may dismiss what he has to say (and what he did at the Leave campaign) but it is important to know what his position actually is, and not what it is alleged to be.

But one respondent (ironically, an academic), however, saw this exercise as me being “part of the problem”.

This view is misconceived.

One problem with Brexit has been the partisanship and the heat of the two sides.

The more open and frank we can be the better.

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