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.


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.


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.


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.


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.


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.


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?


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.


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


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


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


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?


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.


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.


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.


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:


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.


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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The many hurdles of Brexit – a short summary post

25th September 2016

This is a short summary blogpost of what appear to be the main issues which need to be addressed for a Brexit to take place.  I set out below the issues as questions, though they could just as easily be framed as statements.

I call each of these a “hurdle” – because it is possible that each one of these can be negotiated and jumped over; but it is also possible that each one can be an obstruction.

The “hurdles” are set out below in a rough sort of order.  It is not suggested each of the these hurdles are the same height: but each needs to be dealt with or it could be a cause of delay or deadlock.


Hurdle One: Which domestic legal form? Act of Parliament or exercise of the Royal Prerogative (or something else?)

Hurdle Two: What if the Scottish government is resolute in its opposition to Brexit?

Hurdle Three: What if the Northern Ireland government is resolute in its opposition to Brexit?

Hurdle Four: How is the border with the Republic of Ireland dealt with? What impact will there be (if any) on the Good Friday Agreement?

Hurdle Five: What if Gibraltar is resolute in its opposition to Brexit?

Hurdle Six: What if the government is defeated in the House of Commons on Brexit?

Hurdle Seven: What if the government is defeated in the House of Lords on Brexit?

Hurdle Eight: How is any Brexit to be reconciled with the 2015 Conservative manifesto pledge that the UK’s position in the Single Market will be “safeguarded”?  How will that pledge affect the passage of Brexit legislation under the Salisbury Convention (that only legislation which fulfill manifesto pledges will not be subject to Lords’ delay)?

Hurdle Nine: How is any exit agreement with the EU to be completed in less than two years? Or will there have to be an agreement to extend time?

Hurdle Ten: How quickly can the UK and EU commence agreement on a trade (and/or framework) agreement to follow the exit agreement?  Is such an agreement needed?

Hurdle Eleven: On what basis is the UK to have access to the Single Market?

Hurdle Twelve: Is the UK to continue as part of a Tariff/Customs Union with the EU or will it be able to negotiate its own tariff/customs agreements?

Hurdle Thirteen: To what extent (if any) will the UK accept the principle of freedom of movement in any arrangement with the EU?

Hurdle Fourteen: Will there be any special protection for the City of London?

Hurdle Fifteen: How quickly will the UK be able to sort out its position at the World Trade Organization?  Will any current WTO members seek to frustrate or block the UK in this respect?

Hurdle Sixteen: To what extent will areas of substantial law need to be revisited? Would a simple savings provision suffice?

Hurdle Seventeen: To what extent will the law relating to various areas of practice – in respect of mutual recognition regimes and exchanges of information with other member states – need to be revisited?

Hurdle Eighteen: How can the UK civil service achieve Brexit (on top of its ‘normal’ workload) in a period of austerity and reduced budgets – and when it is one-fifth smaller than in 2010?

Hurdle Nineteen: What will be the legal position of rights already acquired (or which may be acquired) by people and companies under EU law once Brexit takes place?   Will they be enforceable?  Will there be compensation for the loss?


There are other hurdles.  You may know of some.  If so, please add your suggestions below as a comment.

You may also think these are not hurdles, or you may want to quibble with something or other.  If so, please submit a comment and, as long as it is polite and constructive, it will be published.

My own position on Brexit is set out here.


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Waiting for Brexit – a note on contentions and biases

5th September 2016

This post sets out my personal view of Brexit, and it also sets out what I believe to be my biases and preconceptions.

The reason I am writing this post is that I am now writing a lot about Brexit at FT and elsewhere (including a short book commissioned by the Oxford University Press) and it seems appropriate to set out in one place what my approach is and what the propositions are which I am advancing.

By way of background: until the referendum vote a couple or so months ago, I never expected or wanted to write much about European Union issues.

I had done a couple of posts at the FT about the referendum before the vote: here I explained why the referendum was not legally binding and here I contended that the referendum was unnecessary.

But I did not expect ever to write any more than this on the topic: I assumed, like many people, that Remain would win and Cameron would get away with his political folly.

Then Remain lost and Leave won, and a spectacular political-legal-policy mess was created.

And, I am afraid, I found this mess fascinating.

I still do.


After the referendum result, a tweet of mine – a laboured allusion to Waiting for Godot – was heavily RTd:

And around the referendum result, I also (foolishly) made a couple of stark assertions:


Today there is now some legal doubt as whether it was open to the prime minister to send the Article 50 notification on the day after the result.  There is pending litigation which will probably end up in the Supreme Court on the correct legal form of an Article 50 notification.

(To this all I can say is that had the prime minister purported to do this on the day after the result then I cannot see how any court would have injuncted him or quashed his decision: there had been (1) a decisive majority in (2) a dedicated national referendum with (3) the largest turnout in history and (4) the government’s stated position had been to give effect to the result “straight away”. The notification would have been a fait accompli.)


When the prime minister did not send the notification it was, for me, the dog in Sherlock Holmes which did not bark in the night time: a curious incident in and of itself.

In short, Brexit became a topic of special interest to me by accident: I was expecting to move back to my usual areas of domestic public and media law and policy.

So, with this throat-clearing out of the way, I will now set out the propositions I wish to advance (and am willing to defend) and the biases and preconceptions of which I am aware.



My first proposition is that Brexit is not inevitable.

This is because of the following:

(1) the referendum was not legally binding;

(2) Brexit will be a complex, time-consuming and resource-intensive exercise (perhaps the greatest exercise by any UK government in peacetime);

(3) there are many other areas of policy which the UK government would prefer to devote its limited time and resources;

(4) there is no model of Brexit which commands support even from a majority of those in favour of Brexit (for example, what should the UK relationship be to the Single Market?);

(5) there is no obvious way the opposition of the Scottish and Northern Irish governments can be accommodated within any plausible model of Brexit;

(6) there is also no obvious way that a meaningful Brexit can be reconciled with the Good Friday Agreement;

(7) a EU exit deal is not easy (as is well known, it took Greenland three years with a small population and one issue (fish) to withdraw from the old, less complex EEC);

(8) replacement international trade deals are not easy and can take up to ten years;

(9) few people with political power in the UK – either ministers or officials – want Brexit to happen; and

(10) statements of political will and intention (however strident) are not the same as evidence of political capability or action.

My second proposition is that Brexit will also not simply go away.  This is because:

(1) the issue of UK membership of the EEC/EC/EU had dogged British politics since the UK joined, and this is the first time there has been (it seems) a resolution of the issue in principle;

(2) the referendum had a higher turnout than any general election and Leave received a greater vote than any political party – and if “mandate” means anything, it must mean this;

(3) there is no likelihood of a second referendum or general election which will (somehow) counter or neutralise the referendum result; and

(4) the government of Theresa May would be unlikely to survive any explicit admission that Brexit is not going to happen.

My third proposition, drawing on the two above, is that there will be a tendency for Brexit to be put off and delayed, without it ever being stated that it will not happen.

This is for all the above reasons, plus the natural inclination in British politics to put off difficult decisions – in the UK, political procrastination is almost an art form.  In turn, this means that over time the notification becomes less likely, as events may intervene and excuses can be contrived.

My fourth proposition is that Brexit could still happen: something becoming more unlikely does not make that thing impossible.  Theresa May is (expressly) willing and (perfectly) capable of triggering Article 50.

Countering each and every factor which tends to Brexit being delayed or not happening is that there may be a political crisis or some need to show political power which leads to Article 50 being invoked.  If so, many of the reasons above will then switch to Brexit not being (well) unproblematic. The problems will not go away: they will just be the same problems in a different context.

Biases and preoccupations

By reason of pointing out the problems with Brexit, I have been accused often of being a Remainer (and less flattering equivalents).

For what it is worth (and I hope my analysis and commentary stands without it being worth anything), my personal views on Brexit are as follows.

First the negatives:

(1) I am not a particular fan of the European Union and I do not think I have ever written in favour of it (this piece is an example of me being not a EU fan);

(2) if in 2016, the UK somehow had not been a member of the EU, I would not want UK to join it;

(3) had I been able to vote in 1975 I would have voted against UK remaining a member of the (then) EEC;

(4) I have opposed every treaty or major treaty amendment since Maastricht (and I would have voted against each, had they been put to a referendum); and

(5) in my view there are two fundamental problems with the EU – (i) the lack of transparency and (genuine) accountability and (ii) the push to “ever closer union”.

On the other hand:

(1) I do not think Brussels and so on are inherently worse (or better) than Westminster or Whitehall – they are all manifestations of the “State” and seem much-of-a-muchness to me as a liberal;

(2) I was a (reluctant) voter for Remain in 2016 only because of the “Breaking Point” poster and the turn the referendum campaign seemed to take about the time of the tragic death of Jo Cox (I had intended not to vote at all);

(3) I am a supporter of the ECHR and NATO (if not of the EU); and

(4) I am a supporter in principle of there being as few controls on migration and immigration as possible, as I believe both are Good Things.

So, with these biases and preconceptions about Brexit, I aim to be generally neutral about Brexit, and I believe myself to be ultimately indifferent about whether UK is a member of the EU or not.

I realise that in the preceding paragraph a lot of work is being done by the adverbs; but that is as accurate a description as I can manage.

For me, it is the mess of Brexit which I find fascinating, and so my (conscious) intention – and ambition – is to offer good and reliable analysis and commentary on Brexit.


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Brexit: a story of a brainstorm

31st August 2016

Today the Cabinet are having an away day, where they will “brainstorm” (horrendous verb) what they mean by Brexit.


You can almost imagine the Prime Minister standing there with a white flipchart and a new pack of marker pens, trying to get the awkward silences to end.

You can also imagine “Brexit” written on the top of the first sheet of the flipchart, with the “t” a little crushed, as not enough room had been left for it.

Under the word “Brexit” the rest of the sheet of the flipchart, of course, remains blank.

“Well, lets think about what Brexit does not mean,” says May.


“Does it mean…not….Brexit?” ventures one minister.

Silence resumes.

Suddenly the prime minister takes a new marker pen, and draws a line across the flipchart sheet.

“This is our red line,” she says, proudly.

Silence again.

“Let’s have coffee and resume this shortly.”

Everyone nods.

In the conference room the flipchart is now ignored.

“I do like these biscuits.”


This was originally on Twitter – some the replies to the tweets are brilliant.


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Brexit Diary: recent news on the “high politics” of Brexit in Westminster and Whitehall

(These Brexit Diary posts collect recent news and commentary.)


Today’s Brexit diary contains recent news on the “high politics” of Westminster and Whitehall.

Brexit is not inevitable, says former civil service chief, Guardian, 27 August 2016

Few things are inevitable in human affairs, and this was a statement of the obvious by O’Donnell.  This observation, however, was useful as a peg to hang the civil service stories below.

The following two links are also not really news: the government’s long-standing position is that Article 50 can be triggered without a parliamentary vote.  This contention will be tested by the High Court in October, with a likely Supreme COurt hearing in December.

Theresa May will trigger Brexit negotiations without Commons vote Telegraph 27 August 2016

Theresa May ‘acting like Tudor monarch’ by denying MPs a Brexit vote Guardian 28 August 2016

The following links are news.  What is significant is that there is still no settled government position on the shape of Brexit.  There can be no surprise that in the absence of such a policy, splits are emerging.

Theresa May calls Brexit meeting amid reports of single market split Guardian, 28 August 2016

Chancellor blamed as cabinet splits over single market Sunday Times, 28 August 2016

The prime minister tells civil servants to “get on” with implementing a policy which does not exist yet:

Theresa May tells pro-EU civil servants to get on with the job of delivering Brexit Telegraph 28 August 2016

The prime minister also tells her cabinet to come up with a Brexit policy:

Theresa May, the Brexit enforcer, orders her Cabinet ministers to come up with blueprint for EU exit Telegraph 28 August 2016

And already the civil service (on whom the success of Brexit will depend) are being attacked for not implementing a policy which does not exist yet:

Whitehall must not try to block Brexit Telegraph, 28 August 2016


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Brexit Diary: the clash of political will and reality, continued

22nd August 2016

(These Brexit Diary posts collect recent news and commentary.)

The story of Brexit is about the clash of political will (the referendum result and express government policy) and the realities of trade, devolution, and government capability.  All because the government wants something to happen, it cannot just be made to happen.

In respect of trade, here are a couple of interesting, well-informed but sceptical  pieces.   First, George Magnus – one of the best follows on Twitter on Brexit and trade questions, at the Sunday Times:

And this is an excellent blogpost by Jeegar Kakkad on whether the UK could emulate the Canada-EU deal:

On devolution, there is news of another Article 50 claim in Northern Ireland – and you should ask anyone who confidently assures you “Brexit will happen” to explain how these Good Friday Agreement issues will be addressed.  It may well be that they cannot be dealt with.

Back in Whitehall: it is reported there will be 32 senior civil servants at the Department for Brexit.   The Observer assesses the unpromising start of the Brexit ministers, and the Telegraph describes how the ministers are fighting over space and resources.

The frustration at the lack of movement is becoming louder.  The Spectator announces it is time to start defending Brexit, and the Telegraph reports Iain Duncan Smith is demanding that Brexit talks as soon as possible.  In the Guardian, Fabian Zuleeg says Brussels is also getting “impatient”.

And so what is the solution? In the Sunday Times:

Theresa May will harness the spirit of Britain’s Olympic “world beaters” to draw up a blueprint for Brexit — as Team GB’s performance in Rio was hailed as the greatest yet by a British team.

A senior cabinet minister has revealed the government will adopt the same approach of backing “excellence” that has catapulted Team GB to Olympic glory as the master plan for economic prosperity outside the EU.

This must be the daftest thing yet said on Brexit, by either side, and against tough competition.  If the government believes the “blueprint for Brexit” is somehow “backing” winners, it should be remembered that this is only two months after government backed the losing side in referendum…


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