Predictions and Article 50

1st February 2017

Sometimes you get things correct.

Over the last year or two, I have set out here, or at the FT or on Twitter, the following things which seem to have weathered well:

– that the hurdles to repeal of the Human Rights Act would be difficult (that Act’s repeal is now delayed or put off altogether);

– that the EU referendum was not legally binding (it wasn’t, and that is why there had to be an Article 50 Bill – and note this was pointed out before the referendum); and

– that the necessary implication of Theresa May’s stated views was that the UK would be seeking to not be part of the Single Market (which was then admitted by the Prime Minister in a speech a week afterwards).

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Getting things right is nice, but sometimes it is far more interesting when things don’t go as you think they will.

Last summer just after the referendum result I thought it highly unlikely that the Article 50 notification would be sent, if it was not sent straight away.

(A couple of times I even slipped and said “never” but that was only my view for a few hours.  Usually I was careful to say it was improbable not impossible.)

I am not a fan of the EU and have never written in favour of it.  Had I been able to vote in 1975, I would have voted against membership.  I have opposed every EU treaty since Maastricht.  So this was not wishful thinking (as far as I can tell). In fact, it was almost the reverse.

One reason the UK should never have joined the EU is because it would be so difficult for the UK to leave.  UK law and policy became entangled with the EU so much one could not see where one began and the other ended.

Given this immense entanglement (which will take years, if not decades, to chop away), I thought the government would go for the path of least resistance.  Very few people with power in Westminster and Whitehall want the UK to leave the EU.  There is a national habit of putting things off: procrastination is a principle of the British constitution.  And there are always events to knock things off course.

I just though there would be delay after delay.  And I still think this is a fair view, on the basis of information available last summer.

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So what changed?

Two things changed.  Both are significant.  The first thing is somewhat amusing to admit (that I thought a politician would be rational), but it needed the second thing.  The first one by itself was not enough.

The first thing is that Theresa May became determined for political reasons to push for notification, regardless of any other factors, and even if there was no rational basis for such speed.  This determination was shown in her conference speech.

The second thing is that it became plain the two year period of the Article 50 process could be circumvented: things could be put off and dealt with as part of transitional arrangements and adjustment phases.

So in early October, as the facts changed, I changed my view: I still thought notification more unlikely than not, but it was more finely balanced.

And in January, as the sheer political determination became starker, and the thinking about offloading things into transitional arrangements and adjustment phases became more commonplace, I changed my view to the notification becoming more likely than unlikely.

And today’s Commons vote on the Article 50 Bill now makes the notification highly probable.

None of this makes the process of Brexit any easier: the UK is still moving towards a complex and unpredictable and time-consuming predicament. But the path to the Article 50 notification which commences the formal Brexit process has become clear.

My only prediction now is that those who doubted that the Article 50 notification would ever be seen will get a good-natured ribbing by those who never had such doubts.

Looking forward to Theresa May’s speech on Brexit

16th January 2017

The prime minister Theresa May is to give a speech on Brexit this week.

For somebody who professes not to want to give a “running commentary” her speech is widely trailed in the media.

And for somebody who is often described as wanting to keep her cards to her chest, she has played a number of cards already.  On the card table are the following:

– the intended date of the Article 50 notification;

– the intention to keep to the Article 50 two-year timetable without an extension;

– the intention for the United Kingdom to leave the European Union;

– the intention for the United Kingdom to leave the jurisdiction of the European Court of Justice;

– the objective of the United Kingdom to take control of its borders (ie, ending free movement of persons);

– the objective of the United Kingdom to take control of its laws; and

– the objective of the United Kingdom to take control of its money (ie, ending compulsory contributions to the European Union budget).

Given these open positions, it is hard to see what cards are still in her hand.

This week’s speech is expected to say that the United Kingdom is prepared to leave the single market.  But, as I have set out on this blog and at the FT, the departure of the United Kingdom from the single market is the necessary implication of the positions which the prime minister has admitted to holding.

Perhaps the speech will reveal something about how the United Kingdom is seeking to attain the objectives.  Perhaps there will be some statements about still-unknown issues such as the United Kingdom’s position on a customs union.

Or perhaps it will be a sequence of slogans and ambitions, without any substance on how they will be converted into reality.

More important may be the interview from the chancellor of the exchequer Phillip Hammond with a German newspaper.  He often seems to be the only grown-up in the cabinet.

**

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An argument as to why a “hard Brexit” will be the natural and direct consequence of an Article 50 notification

12th January 2017

This post sets out in summary form an argument I have set out at the FT (here and here) and on Twitter.

My argument is that, regardless of the express statements of the prime minister and her government, the UK is bound to have a “hard Brexit”.

By “bound” I mean that it will be the natural and direct consequence of an Article 50 notification.

By “hard Brexit” I mean that, once the United Kingdom leaves the European Union (either at the end of the Article 50 period of two years (or as extended) or at the end of any transitional/adjustment period) the United Kingdom will not be part of the “single market”.

For the reasons set out below, I contend that once the Article 50 notification is given, a “hard Brexit” will ultimately follow.  I would say that, if the reasons remain sound, that the “hard Brexit” is as good as inevitable, in that (a) it is the the natural and direct consequence of an Article 50 notification and (b) there seems nothing to prevent that consequence.

The first reason is that “hard Brexit” is the default position.  This will be what will happen, unless something happens to prevent it happening.  The question then becomes what could prevent it happening.

The second reason is that “hard Brexit” is also the settled and unanimous position of the remaining 27 member states.  As long as this remains the case, then nothing will come from the EU27 to prevent the default position being the case.

The third reason is that “hard Brexit” is also the necessary and logical position of the UK government.  Even though this is not explicitly admitted (for some reason), it is the only possible implication of five of the UK government’s stated objectives.

Those objectives, in turn, comprise two precise objectives and three general objectives.

The first precise objective is, of course, that UK is no longer to be a member of the EU.   As I set out at the FT:

“this at a stroke will mean, as a matter of international law, Britain is no longer obliged to accept the “four freedoms” (of movement of goods, services, labour and capital) prescribed by the treaties, nor comply with any of the regulations and directives that set out the common standards of the single market.

“It will also not have any formal role in any of the EU institutions — the council, the commission and the parliament — charged with the formulation and implementation of the rules of the single market. Membership of the Union is a binary matter, and once Britain is outside, a great deal falls away.”

The second precise objective is that the UK will no longer be subject to the jurisdiction of the European Court of Justice, another binary matter (you either are or you are not).  As I again set out at the FT:

“The UK would therefore be removed from the formal mechanism for dealing with disputes about the interpretation and enforceability of the rules of the single market.

“And without such a mechanism, the rules of the single market are polite fictions and aspirations. (Some would say that they are anyway.)”

The three less precise demands also point to the UK leaving the single market.   These demands are that the UK will take control of:

(a) its borders,

(b) its laws; and

(c) its money.

If these demands are also achieved then it is hard to see how the country can also remain part of the single market.  Also from me at the FT:

Control over borders undermines the freedom of movement of people (or of labour)…

“…control over laws means not accepting the qualified-majority-based deference to much of the rule-making for the single market;

“…and refusal to make compulsory contributions to the EU budget means that one can hardly participate in (or even influence) the formulation of single market rules that will affect the UK.”

The combination of these two precise demands and three general demands make it impossible for the UK to remain as part of the single market.

The UK will still, of course, have “access” to the single market.  As I explained at the FT, even the Clangers would have access to the single market if they condescended to trade their soup and blue string pudding surpluses with us mere earthlings.

The question is on what terms that access is given.

The UK remaining a member of the single market could be possible, on some sort of EEA or Norweigian model, but I cannot see how that could be done if the five demands are met.

For completeness, the issue of whether Article 50 process is revocable does not in my view directly affect the argument above for, even if it is revocable, the UK government has said it will not revoke it.

And also for completeness, I note the government has asserted that it will negotiate the best possible deal regarding the single market.  But insofar as such a statement has any meaning, I do not think it affects the argument above.

I am happy to be corrected (and use comments below), but on the basis of the argument set out above, a “hard Brexit” must be the natural and direct consequence of an Article 50 notification.

**

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The resignation of Sir Ivan Rogers

3rd January 2017

The announcement today of the resignation of Sir Ivan Rogers as the UK’s ambassador to the EU is significant.

Coming just weeks before the planned Article 50 notification, the resignation is a setback on any sensible view.

During the run up to the notification, when the government (we are told) is finalising its negotiation strategy, the UK is likely not to have a lead negotiator in place in Brussels, let alone one helping shape the Brexit strategy.

Whatever one’s view of Brexit, this cannot be a good thing.

Some are seeking to dismiss the resignation as being of no importance.

A few are taking comfort from Rogers being the one who led the botched Cameron negotiation before the referendum.

The Cameron negotiation was, of course, doomed from its inception.

There was no surprise that the big demands got nowhere and the small concessions gained were soon forgotten.

The fault of that botched exercise lay with the lack of realism of the Cameron circle (who then tried to blame Rogers and others) and not with those who pointed out the problems.

If you look at the detail of what happened in the Cameron “deal” then you will see vindication for Rogers and others who warned of the problems.

Cameron went to Brussels to demand the impossible, and had no back-up plan if things did not go as he hoped.

And May is about to do exactly the same.

The UK is not bound to make a bad deal in exiting the EU.  Few things are impossible in human affairs.

But the loss of Rogers (and his cautious realism and knowledge of those involved) makes a bad deal more likely, especially at this point in the negotiation preparations.

The inevitable effect of the resignation is that the negotiation preparations will now take place without the involvement of the person who will lead the UK side in the negotiations.

**

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The meaning of Brexit

3rd January 2017

“Brexit means Brexit” has quickly passed from a convenient political slogan to something approaching a national joke.

Any discussion of the meaning of Brexit is haunted by what is now a stock catchphrase.

Like a game show host, one only has to ask what Brexit means to get the Pavlovian, chucklesome response of “Brexit means Brexit”.

But there are still good reasons to try to define what is (and is not) meant by Brexit.  The exercise is not altogether futile.

This is not least because those seeking to give effect to Brexit use the term so as to justify whatever they want.  The people voted for Brexit, and so in the name of Brexit, these things must be done.

One should always be wary of potency of short political words.  As Madame Roland was supposed to have asked, “O Liberté, que de crimes on commet en ton nom!” (O Liberty, what crimes are done in your name).

The more those deploying a political word demand from others, the more scrutiny there must be.

We can all giggle at the absurd tautology of Brexit meaning Brexit.  But until the meaning of the word is addressed then there may be little check on what it can be used to legitimise.

Soon it may be too late to ask of Brexit what idiocies are done in its name.

Brexit will mean whatever its proponents can get away with.

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The main problem of defining Brexit is one of breadth.

There is a narrow meaning which most people will agree: Brexit is about the United Kingdom leaving the European Union.

But if this was all that Brexit meant to those debating the future of the UK and the EU then there would be no scope for serious dispute.

To see whether Brexit had been achieved would require one looking at some official list of EU member states and, when the UK is no longer on that list, then Brexit would have happened.

Brexit would be something one could verify with a simple binary test.  Brexit would be a technicality.

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But Brexit invariably means more than this, especially to its supporters.

Brexit can mean the UK no longer participating in the EU “single market”.  Brexit can mean a cessation of freedom of movement.  Brexit can mean an end to EU budget contributions.  Brexit can mean a rejection of the jurisdiction of the European Court of Justice.  Brexit can mean the UK leaving the EU customs union and being able to set its own tariffs.

Brexit can mean all of these things, or any combination of them.

And for that permutation of Brexit, the supporter will insist adamantly that Brexit must mean Brexit.

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The cause of the terminological difficulties is, in my view, that the simple, factual definition of Brexit (of the UK’s membership of the EU) has been tied to the unstable but powerful political notion of a mandate, which in turn comes from the referendum result.

The majority vote for Leave in effect “super-charged” the meaning of Brexit.

Those with a wide view of Brexit now have every interest in the word meaning as much as possible, whilst those opposed to (or unhappy with) Brexit now have the corresponding interest in the word meaning as little as possible.

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Interestingly, the Oxford English Dictionary has published its definition:

“Brexit (noun): The (proposed) withdrawal of the United Kingdom from the European Union, and the political process associated with it.”

This accords with the narrow definition offered above.

But significantly, this is not the entirety of the OED definition, for added in smaller print is  this elaboration:

“Sometimes used specifically with reference to the referendum held in the UK on 23 June 2016, in which a majority of voters favoured withdrawal from the EU.”

Brexit places the demand that the UK leaves the EU in a specific time and place: as a consequence of the 2016 referendum vote.  This is why the second part of the OED definition is important, and the OED was right to add it.

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I am not opposed to Brexit in principle.  I am largely indifferent to whether the UK is a member of the EU or not.  I am in favour of the single market (a great UK political and economic achievement of the 1980s, and its architect Lord Cockfield is in my mind the second most significant Tory politician of the period).  I am also in favour of freedom of movement.

On the other hand, I believe the EU institutions are too powerful and the teleological “genetic code” of “ever closer union” is misconceived and illiberal. I have opposed every treaty and major treaty change since Maastricht, and I am flat against the Euro.

(There used to be a word for this sort of view – “Eurosceptic” – but it fell out of favour.)

So, for what it is worth, on some definitions of Brexit I am neutral, and on others I am opposed, and on some I am slightly in favour.

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The lack of precision over the meaning of Brexit suggests that there will never be an agreed end to the process.

The UK leaving the EU will not be enough for many Brexiteers, especially if it is a BEANO (Brexit existing as name only).

Brexit will always mean something else needs to be done.

**

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Why the Article 50 case may be the most important constitutional case for a generation

13th October 2016

Today at the High Court in London the hearing begins of the challenge to the government about whether it can trigger Article 50 instead of Parliament.

The case is not about whether Article 50 is triggered or not.  The case is instead about who makes the decision.  Is the decision to be made by the government or by Parliament?

As a matter of law, the answer is not clear.

There are outstanding lawyers who in good faith disagree.

Because there is no exact precedent, the arguments on both sides draw on first principles.

Nobody can predict with certainty which way the court will go.

And whichever way the court goes, there will (no doubt) be a “leap-frog” appeal to the Supreme Court, where the case will probably be joined to the similar Northern Irish case (which also covers the Good Friday Agreement).  I understand the Scottish government may also intervene at the appeal stage.

The Supreme Court hearing may take place as early as December, and so this may be over by Christmas.  We may know before the end of the year whether, as a matter of domestic law, it is for the government or Parliament to decide.

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My view is that the case may well be the most important constitutional case for a generation.

What is meant by a constitutional case? For me, it means a case which deals with relationships between the various parts of  a polity: the executive, the legislature, the judiciary, devolved and local governments, and (of course) citizens.

The constitution of any state is the description given in answer to the question: “how is this state constituted?”

This answer may focus on a single codified document called a “constitution”, or on any various legal documents (Acts of Parliament, leading cases, authoritative books) and conventions, as with the United Kingdom.

(The UK does not have an “unwritten” constitution, it is just not written down in one place.)

An “important” constitutional case is one which deals with relationships between state organs (and between state organs and citizens) where (a) the relationships are not clear and (b) the issue at stake is significant and needs resolving.

In the Article 50 litigation, these constitutional issues are:

– the scope of the “Royal Prerogative” ( a legal fiction which means the government can do important things in the name of the Queen which have legal effects without any statutory basis) as opposed to the scope of “Parliamentary sovereignty”;

– the relationship of both to the result of a national referendum (which is not legally binding but cannot politically be denied);

– the role of the courts in adjudicating tensions between the above;

– the extent to which an executive act can lead to individuals losing rights they otherwise would have under UK and/or EU law; and

– how all of this balances with the rights and interests of the devolved governments.

The government maintain that it has a general power to make and break international treaties under the Royal Prerogative (and/or a general power to invoke Article 50 as an executive action), and to the extent a mandate is needed, that is provided by the referendum result.

The challengers insist that any such decision is so momentous that it has to be done by Parliament, not least because of the way Article 50 could lead to individuals losing rights they otherwise would have.

My view, for what it is worth, is that in normative terms, it should be Parliament that makes the decision.

I believe plebicites and prerogatives to be illiberal devices, and I prefer representative democracy.

But this is a “should” not an “is”.

In positive terms, I do not know how this challenge will be decided.  I initially was on the side of it being a Prerogative act (and I did a thought-experiment along those lines here), but the potential impact on individual rights seems to be a powerful counter-argument.

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There are not many important constitutional cases.  One sign of a stable polity is that they are few in number, as the relationships between parts of the state (and between the state and the citizen) are settled.

Cases of similar importance which come to mind are Factortame I (1990, on the courts vs Acts of Parliament under EU law) and M v Home Office (1994, on the executive vs the courts).  Other lawyers and legal commentators will suggest others.

In my view, the case starting today has the potential to match such cases in importance.

**

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The four tensions of Brexit

12th October 2016

The story of Brexit can be set out as four tensions.

How these tensions are resolved (or not resolved) will determine how (and if) Brexit plays out.

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The first tension: words vs actions

The first tension is between what is said by the United Kingdom government and what is done.

On this, as I have suggested elsewhere, imagine a huge ledger with two columns.

The left-hand ledger is a record of words: of announcements, boasts, declarations of intent, and so on. This side of the ledger is already lengthy, and it gets longer every day. If words could create substance, as if by magic, then Brexit would already have happened.

The right-hand ledger is a record of actions. There is not (as yet) a great deal in this column. EU law applies in the UK as it did the day before the referendum; there have been two pop-up departments; the UK is foregoing its turn as president of the council of minister; and there has been a summit of the other EU member states without the UK. But there is not a lot else which is tangible.

For those interested in Brexit, it is the right-hand column which matters, not the left-hand column.

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The second tension of Brexit

The second tension of Brexit is between an (almost) irresistible force and an (almost) unmovable object.

The (almost) irresistible force is the referendum result.

The vote to leave was the single biggest vote in British political history in a poll which, in turn, had the [add, second] biggest turn out in British political history. The vote was in a referendum set up by statute for the single purpose of determining the question of UK member ship of the EU.

The referendum result cannot be denied, or forgotten about. Unless (which is unlikely) there is a second political event to cancel out the significance of the vote (like a second referendum, or general election where there is a fresh mandate), the referendum result is not going to go away.

The (almost) unmovable object is reality.

Brexit will be the greatest and most complex exercise which the UK has ever undertaken in peacetime. Forty years of law and policy will need to be addressed and somehow unpicked and re-worked. A complicated array of current and ongoing relationships across scores of policy areas will need to be re-set. Difficult questions from the Irish border to the status of Gibraltar also need to be thought carefully about.  (I have set out some nineteen such hurdles here.)

And all this will need to be done in an age of limited government spending and budget cuts, and with a civil service one-fifth smaller than in 2010.

None of these difficulties can be wished away by Leavers, just as the referendum result cannot be wished away by Remainers.

What happens when an (almost) irresistible force meets an (almost) unmovable object?

We will find out.

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The third tension of Brexit

The third tension is between the attractions of action and inaction.

There will be pressure to “do things” just to show things are being done. Some of these things will not be sensible – like the prime minister announcing an arbitrary deadline for the Article 50 notification.

On the other hand, there is a temptation for the government to not do things. Delay and procrastination is part of the genius of the UK constitution.  In 1911, the Parliament Act described the continued presence of hereditary peers in the upper chamber as a temporary expedient, and 105 years later they are still there. We will never see “part 2” of the Leveson inquiry.  A “British Bill of Rights” first promised in 2006 by David Cameron is no nearer enactment, even though he was prime minister for six years. And so on.

Even if Article 50 is invoked next March, one can only wonder how long the “transitional arrangements” will endure for.

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The fourth tension of Brexit

The fourth tension is between competing notions of mandate, and of legitimacy.

The referendum was not legally binding but the mandate is plain: the UK is to leave the EU.

The government is taking this mandate to mean that as little as possible is now to be decided by parliament. There is to be no parliamentary vote on Article 50 and, it would seem, no vote on whether the government should be seeking a “hard” or “soft” Brexit.

But there is another mandate, of course. The current Conservative government was elected (with its small majority) on an explicit manifesto commitment to “safeguard” the UK in the Single Market. Whilst this commitment is not compatible with a “hard” model of Brexit, it is conceivable that there could be a Brexit with the UK still part of the Single Market.

And there is also a wider question of legitimacy. Do the combined powers of a plebiscite and the royal prerogative mean that parliament can be marginalised? Or should parliament be central to the endeavour of “taking back control” and asserting UK sovereignty?

The fundamental political question is: who decides?

The public have decided that the UK is to leave the EU: but who decides how and when this is done, and on what terms?

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Nobody – nobody at all – knows what will happen with Brexit.

But whatever does happen, it seems to me that Brexit will be shaped by how the tensions described in this post are resolved – or not resolved.

Brexit is fascinating.

**

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Brexit Diary: May in Copenhagen, Davis in Parliament, negotiation style, parliamentary votes, Ireland, etc

This is a round-up of recent Brexit news and commentary.  Commentary is grouped under the relevant “dimension” of Brexit.

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Brexit news

Prime Minister’s statement in Copenhagen of 10 October 2016

Next Steps in Leaving the European Union, statement by Brexit Minister David Davis to House of Commons, followed by debate

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The UK/EU relationship dimension

 Britain’s Brexit delusions, by Paul Taylor at Politico

Britain’s raucous negotiating style will not help Brexit, by Alan Beattie at FT

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The parliamentary dimension

Brexit means Brexit, but Parliament is Parliament. MPs must vote on how we leave, by James Kirkup at Daily Telegraph

On the sidelining of Parliament: The Brexit Secretary’s statement to the Commons, by Professor Mark Elliott at the Public Law for Everyone blog

Guardian editorial – The Guardian view on Brexit negotiations: MPs matter

Parliament should be central to Brexit, not marginal, by me at FT

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The Northern Irish dimension

This Brexit plan will divide Britain and Ireland once more, by Diarmaid Ferriter at Guardian

 

**

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What did the Foreign and Commonwealth Office say to the London School of Economics about foreign academics?

8th October 2016

The Brexit news was dramatic.  The government was reported to be barring foreign academics from providing policy advice on Brexit.

What had happened?

Was this correct?

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In short: the government has not barred foreign academics from providing policy advice, at least not in any legal or other formal way.

To do so would be almost certainly unlawful: for example, the government would be in breach of the law of public procurement if it discriminated in favour of UK citizens instead of EU citizens when commissioning research services.

And there is no such bar set out in any published government document; it seems not to be in any contract specification or tendering document; and there does not even seem to be any written communication from the FCO stating the bar.

But senior managers at the London School of Economics (LSE) believed they had been told by the Foreign and Commonwealth Office (FCO) that there was now such a bar.

How did LSE senior managers come to believe the FCO had said there was such a bar?

The answer to this question is not (yet) clear.

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The story begins with a tweet.

The tweet was credible and serious.  A quick Google would show that the tweeter was a highly regarded academic at the LSE.

And the tweet was true: that was exactly what the tweeter had been told.

The Times has today published extracts from an LSE internal email (emphasis added):

However, in an email seen by The Times the head of the European Institute at the LSE revealed that the Foreign Office was only prepared to work with academics who had a UK passport. “The FCO research department will have a commissioning fund to contract external work,” Kevin Featherstone wrote in an email to colleagues. “They envisage approaching academics (including other universities) to contract staff on a daily rate and to invite others to be part of an expert advisory panel.”

He then added: “A sign of the post-Brexit climate: those to be contracted must be UK passport-holders.” Mr Featherstone admitted that the new policy would “exclude some of our best, most relevant experts”.

I understand the email commences with a reference to this information being from “a follow-up call today with the FCO concerning our recent submission of briefing papers”.

There is no reason to doubt that the author of the LSE internal email believed the content was true.

The detail of the email is important.

First, the origin of the information was a telephone conversation, not any written communication, still less a formal contract specification or tendering document.

(Some news sources say it was said in a meeting. In any case it was an oral communication)

And second, the information was in respect of something which was still at preliminary stage: “will have a commissioning fund…[t]they envisage”.   This indicates it was not (yet) a formal requirement for an actual tender or contract for research services.

The information appears to have come from a conversation with a FCO policy official.

According to the FT today, the policy official was the FCO’s head of research, and not a procurement official or anyone directly connected with setting out the terms of a proposed tendering exercise.

This is important, because any central government procurement official would have immediately realised that such a stipulation would be contrary to public procurement law.  Whilst the FCO is entitled to insist on security clearance in respect of certain contracts, non-UK nationals can (and do) receive such clearance.

For completeness, reference should also be made to the public LSE statement yesterday:

You may have seen reports in the media that the Foreign Office have advised us that they will be issuing tenders to contract for advisory work, but that only UK nationals will be eligible to apply. 

Whilst the Foreign Office has long had a rule restricting the nationality of employees or secondees, the extension of the bar to advisory work seems to be new.  However, it is for the Foreign Office to determine what its national security arrangements are, and their legality, not for us.     

We  have issued a public statement (please see below) stating that all our academics produce excellent work whatever their nationality, and could provide a valuable source of advice.   We are standing firm to our principles of academic independence, and valuing our truly international community of scholars.  We will continue to stand by our colleagues and we strongly value the work you all do. 

This refers to “advised”, which is consistent with it being from a telephone call and not a written instruction.  I was also told by the LSE press office yesterday that it was a telephone call.

There is no doubt that senior LSE managers believed that this is what they had been told by a senior FCO policy official.

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But what was the FCO’s side of the story?

The FCO press office was slow in dealing with this matter yesterday, and news outlets published the news of the LSE bar without FCO comment.  This is understandable because the LSE internal email was sufficient to base a news report on.

A statement was eventually provided yesterday:

A Foreign Office spokesman said:

“The FCO regularly works with academic institutions to assist in its policy research and nothing has changed as a result of the referendum. It has always been the case that anyone working in the FCO may require security clearance depending on the nature and duration of their work.

“Britain is an outward-looking nation and we will continue to take advice from the best and brightest minds, regardless of nationality.”

The reference to security clearance is correct: such a stipulation can be made.

But the interesting point is in the final paragraph.  The FCO is stating that there is no bar on advice on the basis of nationality.

And the FCO is stating this “continues” to be the case, meaning it was in place at the time of the communication with the LSE.

I asked the FCO press office yesterday on the record whether this meant the story there was a bar was untrue.  The story was “untrue” the press officer told me.

This was also said by the FCO to Paul Brand, the ITV journalist:

So the FCO denies that there was ever such a bar.

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What the FCO statements do not tell us is whether it is denied that the FCO policy official mentioned such a possible bar in the telephone call.

On this, Paul Brand’s further tweet shows the LSE stands by its understanding of what was said by the FCO:

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What happened in the communication between the FCO and LSE is not clear.

What is clear is that the senior managers at the LSE believed that they had been told of a new bar.  There is no other sensible explanation for the internal email.

But what is also clear is that the FCO does not (at least formally) have such a new policy, and that it was not set out in any contract specification or tendering documents.

(I also think it is virtually certain that such a stipulation would not be legally open to the FCO in any case.)

The LSE should, of course, have insisted on the new policy being set out in writing by the FCO before distributing it internally.

Was the FCO seeking to do a “nod and wink” – doing by an oral communication what it dare not put in writing?  If so, that would be stupid, as such a general policy would inevitably have to be reduced to writing by LSE (as indeed it was straight away) and communicated internally to its staff.  The FCO would gain nothing by any exercise in “plausible deniability” in this way.

If there was no new policy, then there has been a mistake or misunderstanding by somebody.

So in summary (as far as we can know): either the FCO policy official mistook or misunderstood what the FCO could stipulate, or the LSE mistook or misunderstood what the FCO had told it.

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ADD (9th October 2016): Professor Steve Peers has provided an alternative view which should be read to complement this post

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BEANO: Brexit Existing As Name Only

27th September 2016

Today the International Trade Secretary, Liam Fox, gave a speech about the WTO.

In this speech, he says:

The UK is a full and founding member of the WTO.

We have our own schedules that we currently share with the rest of the EU.

These set out our national commitments in the international trading system.

The UK will continue to uphold these commitments when we leave the European Union.

(There is a great fisking of this speech by Ian Dunt here.)

This speech follows the recent statement of the Chancellor of the Exchequer that EU funding will be guaranteed until 2020.

Could it be that the United Kingdom is not heading for a Hard Brexit or a Soft Brexit, but a Brexit existing as a name only?

Could there  be a BEANO Brexit?

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